admin. law - appeal - date of decision v. date of mailing

Ribaudo v. DPW - Supreme Court - April 29, 2009

majority - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-115-2008mo.pdf
dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-115-08do.pdf
reversing http://www.courts.state.pa.us/OpPosting/CWealth/out/351CD06_1-4-07.pdf

Held: A notice of adjudication that clearly advised the party of the starting and ending dates of the applicable appeal period, but did not specifically designate the date stamped on the notice as the notice’s mailing date, was held to be sufficient to trigger the start of the appeal period. Therefore, an appeal filed more than 8 months after the decision was untimely.

The statute in qeustion specified that the appeal period was to run from the date of the notice, not the date of mailing of the notice.

The court said that the "linchpin" in the case was its decision in Schmidt v. Commonwealth, 433 A2d 456 (Pa. 1981), where it "addressed whether a notice of adjudication, whose only indication of its date of mailing was a postmark, triggered the relevant appeal period. We construed the statutory language at issue in Schmidt as implying a duty on the part of the government agency to advise the taxpayer of the mailing date, and we concluded it would be “manifestly unjust” to dismiss a taxpayer’s appeal based on some internal departmental mailing date where the taxpayer was never informed of the mailing date."

The court said (and noted that appellant conceded that it "did not impose in Schmidt an absolute rule that all administrative agency notices must contain a mailing date which is specifically designated as such. Rather, Schmidt requires only that an agency’s notice of adjudication sufficiently inform the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights."

The court held that "DPW complied with Schmidt. It notified [appellant] of the starting date of the appeal period and advised appellant that if it disagreed with the findings contained in the audit report, it had “the right to ppeal by filing a written request for a hearing with [the Bureau] within 33 days of the date of this letter,” and the letter was date-stamped “MAR 31, 2004.” The combination of the letter’s content and the date-stamp was sufficient to put appellant on notice that the appeal had to be filed within 33 days of March 31, 2004 ─ “the date of this letter.” Moreover, this information comported with the relevant statute specifying that appeals must be filed within 33 days “of the date of the notice of the departmental action” rather than the date of mailing.

The court reaffirmed its approach in Schmidt, and held that "whether an agency’s notice of adjudication triggers the start of an appeal period depends on whether, consistent with the applicable statute, the notice sufficiently informs the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights. Because we find that the notice in this case was sufficient, the appeal to the Bureau was untimely."

abuse - expungement - proof of identity - collateral proceedings - standard of proof

C.S. v. DPW - Cmwlth. Court - May 1, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/426CD08_5-1-09.pdf

Welfare authorities in an expungement appeal could not rely on evidence in a dependency case to prove that appellants-parents abused their child, when the evidence in the dependency case was only "prima facie evidence that the parents were the abusers."

The court distinguished J.G. v. DPW, 795 A.2d 1089 (Pa. Cmwlth. 2002), where the identity of the perpetrator was established in a separate court proceeding, and clarified its opinion in K.R. v. DPW, 950 A2d 1069, 1072 (Pa. Cmwlth. 2008) to make clear that where "a founded report is based upon a judicial adjudication in a non-criminal proceeding, such as a dependency action, in which the court enters a finding that the child was abused, but does not issue a corresponding finding that the named perpetrator was responsible for the abuse, a named perpetrator is entitled to an administrative appeal before the secretary to determine whether the underlying adjudication of child abuse supports a ‘founded report’ of abuse."

The court also noted the different between dependency and expungement actions. In dependency cases, CYS needs to establish the fact of abuse by clear and convincing evidence, but the identity on the alleged abuser only by prima facie evidence.

"By contrast, in expungement proceedings, the county agency or DPW has the burden of proving by substantial evidence that the alleged perpetrator's conduct falls within one of the definitions of child abuse set forth in Section 6303(b)(1) of the CPSL....Section 6303(a) of the CPSL defines an "indicated report" as a child abuse report based on a determination by the county agency or the Department that, "substantial evidence of the alleged abuse exists." 23 Pa. C.S. § 6303(a).

For the purpose of an expungement proceeding, substantial evidence is "[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." Thus, the standard for determining the identity of a perpetrator in dependency matters is a significantly lower burden of proof than in expungement proceedings. The different burdens of proof set forth for the proceedings highlight the fundamentally different purposes that dependency proceedings and expungement proceedings serve." (emphasis added)

Note: The use of term "substantial evidence" in the statute is confusing and misleading. The definition is virtually the same as "preponderance of the evidence." "A preponderance of the evidence is defined as "the greater weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement for preponderance of the evidence." Raker v. Raker, 847 A.2d 720, 724 (Pa.Super. 2004)

In fact, there is a strong argument that since expungement cases involve the fundamental right of reputation under Article I, sec. 1, of the Pennsylvania Constitution, the standard of proof should be clear and convincing. As the majority noted, the "CPSL is geared more towards reporting perpetrators of abuse, which may adversely affect a perpetrator’s reputation and employment opportunities. A.Y. v. Department of Public Welfare, 537 Pa. 116, 125 n.7, 641 A.2d 1148, 1152 n.7 (1994); 23 Pa. C.S. § 6338(a).

As the Supreme Court in A.Y. explained, "Although less process is due in an administrative proceeding than where criminal charges have been brought, an administrative adjudication of suspected child abuse is of the most serious nature. Therefore, this society, which was founded upon, inter alia, its citizens' ‘inherent and indefeasible rights . . . of acquiring, possessing and protecting property and reputation,’ cannot blithely surrender those rights in the name of prosecutorial convenience." A.Y., 537 Pa. at 124, 641 A.2d at 1152.... Thus, the higher standard of proof required in an expungement proceeding to prove the identity of a perpetrator is reasonable in light of his "inherent and indefeasible rights" which may be negatively affected."

UC - willful misconduct - negligence v. breach of employer rule

Moran v. UCBR - Cmwlth. Cour - Ap[ril 27, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1659CD08_4-27-09.pdf

The court rejected claimant's argument that his failure to put the brake on his truck was merely negligence, under Navickas v. UCBR, 787 A.2d 284 (Pa. 2001), since claimant was fired not for a negligent error but rather for the violation of the work rule regarding putting the brake on trucks.

UC - appeal -proof of mailing - postage meter

Moran v. UCBR - Cmwlth. Cour - Ap[ril 27, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1659CD08_4-27-09.pdf

Employer's appeal was timely filed, where the date on the emvelope, from the the employer's postage meter, was within the appeal period, upholding the validity of 34 Pa. Code 101.82 and distinguishing Lin v. UCBR, 735 A.2d 697 (Pa. 1999), a pre-regulation decision.

adminative law - regulation v. statement of policy

Borough of Bedford, et al. v. DEP, et al. - Cmwlth. Court - April 14, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/160MD08_4-14-09.pdf

DEP's motion for summary judgment denied. DEP claimed that the relevant document was a statement of policy, 45 P.S. 1102(13). The Plaintiffs claimed that it was a regulation, 45 P.S. 1102(12). The court said that the statutory definitions "do little to separate a statement of policy from a regulation" and that the resolution of the legal issue would require factual development.

There is an extensive discussion about the important administrative law issue of whether an agency promulgation is a

- regulation, which has the force of law, establishes a "binding norm," and must be adopted according to a strict procedure - The "basic procedures by which an agency promulgates a regulation are set forth in the Commonwealth Documents Law. In essence, these procedures require an agency to give notice to the public of its proposed rule-making and an opportunity for the public to comment.11 See Eastwood Nursing, 910 A.2d at 141 n.13. However, this is only the beginning. The agency must also obtain the approval of the Attorney General and the General Counsel of a proposed regulation’s form and legality. Sections 204(b) and 301(10) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §§732-204(b) and 732-301(10). Finally, an agency’s regulation must also undergo legislative scrutiny in accordance with the Regulatory Review Act." - OR

- statement of policy, which does not have the force of law , but rather is "merely an announcement to the public of the policy which the agency hopes to implement in future rulemakings or adjudications. A general statement of policy, like a press release, presages an upcoming rulemaking or announces the course which the agency intends to follow in future adjudications....A general statement of policy, on the other hand, does not establish a ‘binding norm’…. A policy statement announces the agency’s tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. Id. at 349-350, 374 A.2d at 679 (quoting Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 33, 38 (1974)) (emphasis added)."

UC - petition for review - statement of objections

Shimp v. UCBR - Cmwlth. Court - March 30, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1798CD08_3-31-09.pdf

The pro se form petition for review stated that the "Board of Review should be reversed because (You must state with specificity why you believe the Board is in error)." Claimant did not make any allegation here but just attached a postal proof of mailing.

Claimant's failure to raise any allegation of error regarding the Board’s decision in the petition for review was a waiver and violated Pa.R.A.P. 1513(d), since there was no "general statement of the objections to the order or other determination." See Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996) (Commonwealth Court was correct in refusing to consider issues not fairly comprised from objections raised in petition for review); Jimoh v. UCBR, 902 A.2d 608 (Pa. Cmwlth. 2006) (issue not raised in the stated objections in the petition for review nor “fairly comprised therein” is waived and will not be addressed by this Court); Tyler v. UCBR, 591 A.2d 1164 (Pa. Cmwlth. 1991) (same).

arbitration - express, unequivocal mutual agreement

Kirleis v. Dickie, McCamey & Chilcote, PC - Third Circuit - March 24, 2009

http://www.ca3.uscourts.gov/opinarch/073504p.pdf

Attorney-shareholder of law firm sued for sex discrimination. The firm moved to compel arbitration under the terms of the corporate bylaws. The 3d Circuit upheld the district court's refusal to grant the firm's motion.

Plaintiff alleged--and the firm did not challenge--that she was never informed of the presence of the arbitration provision in the by-Laws, she never signed any agreement or document which refers to or incorporates the arbitration provision in the by-Laws. and she never agreed to arbitrate my claims against the firm.

Pennsylvania law about contract formation/arbitration requires that "[b]efore a party to a lawsuit can be ordered to arbitrate . . . there should be an express, unequivocal agreement to that effect," Par-Knit Mills, 636 F.2d at 54. No such agreement was shown in this case. The court held that plaintiff's status as a shareholder did not put her on constructive notice of the provision. "Under Pennsylvania law, explicit agreement is essential to the formation of an enforceable arbitration contract...."A mutual manifestation of intent to be bound is an essential element of a contract.". Thus, the firm's argument that Kirleis impliedly agreed to
arbitrate her claims must fail under Pennsylvania law. See also, Quiles v.
Financial Exchange Co., 879 A.2d 281 (Pa. Super. Ct. 2005)

federal courts - standing - organizational standing

SUPREME COURT OF THE UNITED STATES
SUMMERS ET AL. v. EARTH ISLAND INSTITUTE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 07–463. Argued October 8, 2008—Decided March 3, 2009

After the U. S. Forest Service approved the Burnt Ridge Project, a salvage sale of timber on 238 acres of fire-damaged federal land, respondent environmentalist organizations filed suit to enjoin the Service from applying its regulations exempting such small sales fromthe notice, comment, and appeal process it uses for more significant land management decisions, and to challenge other regulations thatdid not apply to Burnt Ridge. The District Court granted a preliminary injunction against the sale, and the parties then settled theirdispute as to Burnt Ridge. Although concluding that the sale was no longer at issue, and despite the Government’s argument that respondents therefore lacked standing to challenge the regulations, thecourt nevertheless proceeded to adjudicate the merits of their challenges, invalidating several regulations, including the notice and comment and the appeal provisions. Among its rulings, the NinthCircuit affirmed the determination that the latter regulations, which were applicable to Burnt Ridge, were contrary to law, but held that challenges to other regulations not at issue in that project were not ripe for adjudication.

Held: Respondents lack standing to challenge the regulations still atissue absent a live dispute over a concrete application of those regulations. Pp. 4–12.

(a) In limiting the judicial power to "Cases" and "Controversies," Article III restricts it to redressing or preventing actual or imminently threatened injury to persons caused by violation of law. See, e.g., Lujan v. Defenders of Wildlife, 504 U. S. 555, 559–560. The standing doctrine reflects this fundamental limitation, requiring that "the plaintiff . . . ‘alleg[e] such a personal stake in the outcome of thecontroversy’ as to warrant his invocation of federal-court jurisdiction," Warth v. Seldin, 422 U. S. 490, 498–499. Here, respondentscan demonstrate standing only if application of the regulations will affect them in such a manner. Pp. 4–5.

(b) As organizations, respondents can assert their members’ standing. Harm to their members’ recreational, or even their mere esthetic, interests in the National Forests will suffice to establish the requisite concrete and particularized injury, see Sierra Club v. Morton, 405 U. S. 727, 734–736, but generalized harm to the forest or the environment will not alone suffice. Respondents have identified noapplication of the invalidated regulations that threatens imminentand concrete harm to their members’ interests. Respondents’ argument that they have standing based on Burnt Ridge fails because, after voluntarily settling the portion of their lawsuit relevant to Burnt Ridge, respondents and their members are no longer under threat of injury from that project. The remaining affidavit submitted in support of standing fails to establish that any member has concrete plans to visit a site where the challenged regulations are being applied in a manner that will harm that member’s concrete interests. Additional affidavits purporting to establish standing were submitted after judgment had already been entered and notice of appeal filed,and are thus untimely. Pp. 5–8.

(c) Respondents’ argument that they have standing because they have suffered procedural injury—i.e., they have been denied the ability to file comments on some Forest Service actions and will continueto be so denied—fails because such a deprivation without some concrete interest affected thereby is insufficient to create Article III standing. See, e.g., Defenders of Wildlife, supra, at 572, n. 7. Pp. 8–9.

(d) The dissent’s objections are addressed and rejected. Pp. 9–12. 490 F. 3d 687, reversed in part and affirmed in part.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

federal courts - pre-emption - drug warnings

SUPREME COURT OF THE UNITED STATES - WYETH v. LEVINE
CERTIORARI TO THE SUPREME COURT OF VERMONT
No. 06–1249. Argued November 3, 2008—Decided March 4, 2009

Petitioner Wyeth manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the "IVpush" method, whereby a drug is injected directly into a patient’s vein, the drug entered Levine’s artery, she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that Levine’s injury would not have occurred if Phenergan’s label includedan adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as aprofessional musician. Declining to overturn the verdict, the trial court rejected Wyeth’s argument that Levine’s failure-to-warn claimswere pre-empted by federal law because Phenergan’s labeling hadbeen approved by the federal Food and Drug Administration (FDA). The Vermont Supreme Court affirmed.

Held: Federal law does not pre-empt Levine’s claim that Phenergan’slabel did not contain an adequate warning about the IV-push method of administration. Pp. 6–25.

(a) The argument that Levine’s state-law claims are pre-empted because it is impossible for Wyeth to comply with both the state-law duties underlying those claims and its federal labeling duties is rejected. Although a manufacturer generally may change a drug labelonly after the FDA approves a supplemental application, the agency’s"changes being effected" (CBE) regulation permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety. Pursuant to the CBE regulation, Wyeth could have unilaterally added a stronger warning about IV-push administration,and there is no evidence that the FDA would ultimately have rejected such a labeling change. Wyeth’s cramped reading of the CBE regulation and its broad assertion that unilaterally changing the Phenerganlabel would have violated federal law governing unauthorized distribution and misbranding of drugs are based on the fundamental misunderstanding that the FDA, rather than the manufacturer, bearsprimary responsibility for drug labeling. It is a central premise of theFood, Drug, and Cosmetic Act (FDCA) and the FDA’s regulationsthat the manufacturer bears responsibility for the content of its label at all times. Pp. 11–16.

(b) Wyeth’s argument that requiring it to comply with a state-law duty to provide a stronger warning would interfere with Congress’ purpose of entrusting an expert agency with drug labeling decisions is meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to preempt state law. The history of the FDCA shows that Congress didnot intend to pre-empt state-law failure-to-warn actions. In advancing the argument that the FDA must be presumed to have established a specific labeling standard that leaves no room for different state-law judgments, Wyeth relies not on any statement by Congress but on the preamble to a 2006 FDA regulation declaring that statelaw failure-to-warn claims threaten the FDA’s statutorily prescribed role. Although an agency regulation with the force of law can preempt conflicting state requirements, this case involves no such regulation but merely an agency’s assertion that state law is an obstacleto achieving its statutory objectives. Where, as here, Congress has not authorized a federal agency to pre-empt state law directly, theweight this Court accords the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency,and persuasiveness. Cf., e.g., Skidmore v. Swift & Co., 323 U. S. 134. Under this standard, the FDA’s 2006 preamble does not merit deference: It is inherently suspect in light of the FDA’s failure to offer interested parties notice or opportunity for comment on the preemption question; it is at odds with the available evidence of Congress’ purposes; and it reverses the FDA’s own longstanding positionthat state law is a complementary form of drug regulation without providing a reasoned explanation. Geier v. American Honda Motor Co., 529 U. S. 861, is distinguished. Pp. 17–25.
___ Vt. ___, 944 A. 2d 179, affirmed.

STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA, J., joined.

UC - willful misconduct - nolo contendere plea

Smith v. UCBR - Cmwlth. Court - February 27, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1760CD08_2-27-09.pdf

A nolo contendre plea to theft by deception "essentially constituted an admission of the facts charged in the underlying criminal proceedings" and constituted substantial evidence of willful misconduct under sec. 402(e) and fault under sec. 3

UC - subpoena - standard for granting

Alston v. UCBR - Cmwlth. Court - February 19, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf

The court reversed the UCBR decision on the merits and remanded the case for a hearing with claimant witnesses whom the referee improperly refused to subpoena.

The court rejected the Board's claim that the witnesses' evidence would be "directly contradictory" to that of the employer and held that it need only lead to "relevant and provative evidence," citing Hamilton v. UCBR, 532 A.2d A.2d 535, 537 (Pa. Cmwlth. 1987).

UC - appeal letter - pro se litigant

Alston v. UCBR - Cmwlth. Court - February 19, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf

A letter to the court served as an appeal under Pa. RAP 1514(a) and sec. 67.13 of court internal operating procedure, which gives a pro se claimant 30 days from receipt of timely appeal letter in which to file a proper petition for review.

arbitration - class action - no stay as to plaintiffs whose contracts do not have arbitration clause

Mendez, et al. v. Puerto Rican International Companies - 3d Cir. - January 26, 2009

http://www.ca3.uscourts.gov/opinarch/074053p.pdf

The issue for resolution is whether a defendant who is entitled to arbitrate an issue which it has with one plaintiff in a suit can insist on a mandatory stay of litigation of issues it has with other plaintiffs who are not committed to arbitrate those issues. We conclude that Section 3 was not intended to mandate curtailment of the litigation rights of anyone who has not agreed to arbitrate any of the issues before the court.

We acknowledge at the outset that Section 3 can be read literally to confer a right to a mandatory stay in the context of this case. Section 3 is an integral part of a statutory scheme, however, and reading it in the context of the FAA as a whole, we decline to attribute that intent to Congress.

The purpose of the FAA is to render agreements to arbitrate fully enforceable. 9 U.S.C. § 2 (a contract to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”). The purpose of Section 3, in particular, is to guarantee that a party who has secured the agreement of another to arbitrate rather than litigate a dispute will reap the full benefits of its bargain. In short, the “liberal policy ‘favoring arbitration agreements . . . is at bottom a policy guaranteeing the enforcement of private contractual arrangements.’”

Accordingly, “under the FAA, ‘a court may compel a party to arbitrate where that party has entered into a written agreement to arbitrate that covers the dispute.’” Because Congress thus limited the rights it created in the FAA to situations involving corresponding obligations voluntarily assumed by another, we decline appellants’ invitation to interpret Section 3 in a way that would mandate the imposition of a material burden on a party’s right to litigate claims it has not agreed to arbitrate.

While Section 3, as appellants read it, would postpone rather than eliminate a party’s right to litigate its claims against another, it would nevertheless defer that right for the duration of a proceeding over which the constrained party has no control and would deprive the Court of any discretion to consider the impact of that delay on that party. We find no persuasive evidence in the FAA for sanctioning such a burden.

disability - attorney fees - subantially justified

Magwood v. Astrue - ED Pa. - January 21, 2009

http://www.paed.uscourts.gov/documents/opinions/09D0086P.pdf

Government's position was not substantially justified where it was contrary to clearly established law concerning step 2 (severity) of the disability evaluation process. The government's prior "string of successes" before a 3d Cir. reversal was not enough to satisfy its burden.

A fee of $12,275.21 was awarded (68.30 hours at a rate of $176.23, plus $238.70 for expenses)

mortgage foreclosure - defective Act 91 - prejudice

Wells Fargo v. Monroe - Superior Court - January 26, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s71014_08.pdf

An allegedly defective* Act 91 notice was held not to be a defense to a foreclosure action when the mortgagors were given and availed themselves of the opportunity to pursue mortgage assistance through the HEMAP program.

They met with a credit counseling agency within the 30, as provided by the Act 91 Notice, and applied for mortgage assistance, which was ultimately denied. Under these circumstances, no prejudice could be presumed because of lack of compliance with the Act 91 requirements, and no prejudice was shown.

The " trial court did not abuse its discretion in finding that the Act 91 Notice sufficiently apprised the Monroes of their options with regard to the aid to which they were entitled. Therefore, the trial court’s grant of the motion for summary judgment filed by Wells Fargo was proper."

*The Act 91 notice was alleged to be defective for lack of notation of a place to cure and the inclusion of improper fees.

attorney fees - lease - prevailing party

Bayne v. Smith - Superior Court - January 26, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a28016_08.pdf

The court reversed the trial court and held that the lease was not an adhesion contract and that the attorney fee provision was not unconscionable. The tenant did not show a lack of meaningful choice about whether to accept the provision, or that the provision unreasonably favored the landlord.

The court held that critical language in Galligan v. Arovitch, 421 Pa. 301[, 219 A.2d 463] (1966), was mere dicta. It found that the trial court’s reliance on Galligan and Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 485-486, 329 A.2d 812, 830 (1974)] was "misplaced" and the the tenant "failed to satisfy her burden as to unconscionability."

The fee provision in question would have allowed the tenant to recover attorney fees from the landlord had she prevailed in her defense. It gave the "prevailing party" the right to recover fees.

discovery - sanctions - Pa. courts

Cove Centre, Inc. v. Westhafer Construction Co. - Superior Court - January 26, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a32023_08.pdf

Where a discovery sanction either terminates the action directly or would result in its termination by operation of law, the court must consider multiple factors balanced together with the necessity of the sanction.(1) the nature and severity of the discovery violation;(2) the defaulting party's willfulness or bad faith;(3) prejudice to the opposing party;(4) the ability to cure the prejudice; and(5) the importance of the precluded evidence in light of the failure to comply.

With few exceptions, there is no greater sanction in a civil case than a deemed admission of a Request for Admission, as well as preclusion of expert testimony and entry of judgment, so a balancing of the equities emphasizing the nature and motive of the non-compliant party’s conduct is mandatory.

The mere failure of an unrepresented party to comply with discovery rules does not amount to “willfulness or bad faith” as contemplated by case law.

As concerns potential prejudice occasioned by the failure to comply with discovery, the record discloses no hardship to the party seeking sanctions which is not readily remedied upon remand.

The party never filed a Motion to Compel Discovery so as to invoke the trial court’s authority in the interest of advancing the litigation and minimizing delay, which has now been extended by the necessity of this appeal. Moreover, the violations in question did not result in a loss of evidence favorable to the movant. Compliance with the discovery requests in question, even at this late date, would allow the matter to proceed to a full and fair resolution.Compared to the extraordinary prejudice of a sanction order that the trial court has since repudiated, the prejudice to the movant imposed by the failure to comply with discovery is minimal.

contracts - right-to-cure clause - incurable breach

LJL Transportation v. Pilot Air Freight Corp. - Pa. Supreme Court - January 22, 2009

http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-60-2008mo.pdf

Held: A party’s conduct in breaching a francise agreement can may justify its immediate termination, even if the contract includes an express provision granting the breaching party the right to cure before the contract is terminated, when there is a material breach of the contract so serious it goes directly to the heart and essence of the contract, rendering the breach incurable.

The wrongful conduct consisted of plaintiff's admittedly dishonest, indefensible diversion of business to defendant's competitor.

The court looked to the law of other states, which had adopted the “Williston view,” which provides, “Unless a contract provision for termination for breach is in terms exclusive . . . it is a cumulative remedy and does not bar the ordinary remedy of termination for a breach which is material or which goes to the root of the matter or essence of the contract.” Williston, A Treatise on The Law of Contracts, § 842, 165 n.1 (3d. ed. 1962).

diability - examining physician opinion

Brownawell v. Commissioner - 3d Cir. - Dec. 9, 2008

http://www.ca3.uscourts.gov/opinarch/074405p.pdf

The appellate court entered an outright reversal and directed the payment of benefits, because

- the decision to deny benefits was improperly based on a number of erroneous facts and discredits the opinions of two examining doctors (who clearly considered her to be disabled), improperly favoring the opinion of a non-examining psychologist, and

- because substantial evidence on a fully developed record indicates that Brownawell is disabled.

birth registration - "gestational carrier"

In re I.L.P. - Superior Court - January 21, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A30027_08.pdf

employment - wages - "hours worked" - donning and doffing

Lugo, et al. v. Farmers Pride, Inc. - Superior Court - January 15, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a10011_08.pdf

Dismissal of employees wage claims reversed on appeal.

The Pennsylvnaia Minimum Wage Act requires that certain minimum wages be paid for all “hours worked.” 43 P.S. § 333.104(a). The focal point of the issue before us is whether the concept of “hours worked” includes, under the PMWA, the time that appellants spent donning, doffing, and sanitizing their protective gear for their work in a chicken processing plant.

"The answer, under the facts of this case, is found in the regulations promulgated in support of the Pennsylvnaia Minimum Wage Act, which defines “hours worked” to include "time during which an employee is required by the employer to be on the premises of the employer, to be on duty or to be at the prescribed work place, time spent in traveling as part of the duties of the employee during normal working hours and time during which an employee is employed or permitted to work...." 34 Pa.Code § 231.1" Under that definition, the time spent donning, doffing, and sanitizing work gear is included in "hours worked" and is compensable.

The court also held that the employees could alternatively plead a claim for unjust enrichment.

criminal conviction - expungement - factual basis and nature of plea agreement

Commonwealth v. Hanna - Superior Court - January 14, 2008

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a18026_08.pdf

Case remanded for hearing to resolve factual disputes about the factual basis and nature of the defendant's plea agreement, under which he pleaded guilty to one charge and many others were dismissed.

In the course of the opinion, the court reviewed many of the most important expungement cases, including Wexler and A.M.R., infra, as well as Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001)

General principles

“The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth. We review the decision of the trial court for an abuse of discretion.” Commonwealth v. Rodland, 871 A.2d 216, 218 (Pa. Super. 2005) (citation omitted).

This Court explained the nature of the right to expungement as follows: In this Commonwealth, there exists the right to petition for expungement of a criminal arrest record. This right is an adjunct of due process and is not dependent upon express statutory authority.

In Commonwealth v. Wexler, [431 A.2d 877, 879 (Pa. 1981)], the seminal case on expungement hearings in the Commonwealth, our Supreme Court defined the responsibilities of a court as it decides whether to expunge an arrest record: “In determining whether justice requires expungement, the court, in each particular case, must balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth's interest in preserving such records.”

The Wexler factors “include the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.” Wexler, 431 A.2d at 879.

The Commonwealth’s retention of an arrest record, in and of itself, may cause serious harm to an individual. See Commonwealth v. Malone, 366 A.2d 584, 588 (Pa. Super. 1976) (noting possible effects of maintaining an arrest record, including economic and non-economic losses and injury to reputation). Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005) (footnote omitted).

In this case, counsel argued that Appellant was 26 years old at the time of the offense, had no prior criminal record, and successfully served his probation. Appellant is a high-school graduate with college credits and technology-class credits. He is married and supports three children. According to counsel, the dismissed charges were having a serious adverse effect on Appellant’s employment prospects in the computer field.

If the defendant is convicted of a crime, he is not entitled to expungement except under the extremely limited circumstances permitted by statute. Commonwealth v. Maxwell, 737 A.2d 1243, 1244 (Pa. Super. 1999), citing 18 Pa.C.S.A. § 9122. At the opposite extreme, if the defendant is acquitted, he is generally entitled to automatic expungement of the charges for which he was acquitted. Commonwealth v. D.M., 695 A.2d 770 (Pa. 1997); cf. Rodland, 871 A.2d at 219 (where the defendant is acquitted of some charges and not others, the court should expunge the acquitted charges unless the Commonwealth “demonstrates to the trial court that expungement is impractical or impossible under the circumstances”).

"Unsurprisingly, the cases posing the most difficulty fall in between these extremes."

court - rules - children's fast-track appeals

Order Adopting Amendments to Pa.R.A.P. 102, 904, 905, 1112, 1113, 1116, 1123, 1925, 1931, 1972, 2113, 2154, 2172, 2185, 2542, 2545, and to Official Notes to Pa.R.A.P. 2572 and 3723, No. 197 Appellate Procedural Rules Docket No. 1

Opinion Type: Rules
197aplt.1.pdf

Opinion Type: Rules
197aplt.1attach.pdf

Children’s fast track appeal—Any appeal from an order involving dependency, termination of parental rights, adoptions, custody or paternity. See 42 Pa.C.S. §§ 6301 et seq.; 23 Pa.C.S. §§ 2511 et seq.; 23 Pa.C.S. §§ 2101 et seq.; 23 Pa.C.S. §§ 5301 et seq.; 23 Pa.C.S. §§ 5102 et seq.

UC - vol. quit - unjust accusations - abusive employer conduct

Yellow Breeches Educ. Center v. UCBR - Cmwtlh. Court January 12, 2009 - unreported mem. decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1291CD08_1-12-09.pdf

Claimant had good cause to quit her job where the employer, in an abusive manner, unjustly accused her of insubordination.

A claimant need not indefinitely subject herself to unjust accusations and abusive conduct. First Federal Savings Bank v. UCBR, 957 A.2d 811 (Pa. Cmwlth. 2008). However, resentment of a reprimand, absent unjust accusations, profane language or abusive conduct, does not amount to a necessitous and compelling cause. Id. Here, the UCBR found that Claimant was subject to unjust accusations and abusive conduct prior to Claimant’s leaving her employment.

The court distinguished St. Barnabas, Inc. v. UCBR, 525 A.2d 885 (Pa. Cmwlth. 1987), where it had not found abusive conduct when a supervisor made an unjust accusation against an employee and, in doing so, yelled at the employee with his office door ajar. In St. Barnabas, the employer had a handbook that required employees to report problems to higher management. There was no such policy here. Moreover, unlike the employee in St. Barnabas, Claimant made a good faith effort to resolve the problems with her supervisor by speaking directly with her. Therefore, St. Barnabas does not apply.

UC - vol. quit - marital, family, or domestic reasons - fiancée

Wagner v. UCBR - Cmwlth. Court - January 12, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1023CD08_1-12-09.pdf

The court held that a claimant had good cause to quit his job under the following "marital, family or domestic reasons."

He took 28 days leave from his job in Iraq to lend support to his fiancée, who was dealing with a contentious custody battle with an abusive ex-boyfriend, and a child who suffered from a congenital heart defect and microcephaly. Claimant left to return to Iraq but found that he was unable to handle the issues in his home life from that significant distance. He spoke to his manager to try to get a job in the US but was told none were available and that, in any event, he was not eligible for such a job even it it existed. He then resigned and returned home.

Family obligations can be sufficiently necessitous and compelling to entitle a claimant to unemployment compensation benefits. Wallace v. UCBR, 393 A.2d 43 (Pa. Cmwlth. 1978) (declared unconstitutional the section of the UC Law that disqualified from benefits claimants who voluntarily terminate their employment for marital, filial or domestic reasons).

The Supreme Court in Taylor v. UCBR, 474 Pa. 351, 359, 378 A.2d 829, 833 (1977) held that if a worker leaves his employment when he is compelled to do so by necessitous circumstances or because of legal or family obligations, his leaving is voluntary with good cause, and under the act he is entitled to benefits. The pressure of necessity, of legal duty, or family obligations, or other overpowering circumstances and his capitulation to them transform what is ostensibly voluntary unemployment into involuntary unemployment. Accord, Bliley Elec. Co. v. UCBR, 45 A.2d 898 (Pa. Super. 1946)); Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000) (claimant when he quit his job to return to live with his son, who was suffering from emotional and behavioral problems in his absence); Speck v. UCBR, 680 A.2d 27 (Pa. Cmwlth. 1996) (claimant quit his job when a transfer created a daily commute consisting of 337 miles each way and he was newly married, and the only child of a parent who needed his assistance from time to time due to a heart condition.)

admin. law - due process - discovery

Vaders v. State Horse Racing Commn. - Cmwlth. Cour - January 9, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/703CD08_1-9-09.pdf

due process - In an administrative hearing, due process requires, at a minimum, notice and the opportunity to be heard. See Section 504 of the Administrative Agency Law, 2 Pa.C.S. § 504; Grossman v. State Bd. of Psychology, 825 A.2d 748 (Pa. Cmwlth. 2003); and Gruff v. Dep’t of State, 913 A.2d 1008 (Pa. Cmwlth. 2006).

discovery - Discovery, as provided for in the Pennsylvania Rules of Civil Procedure for court proceedings, is not made available in administrative proceedings.

Rule 35.142(a) of the General Rules of Admin. Practice and Procedure 1 Pa. Code § 35.142(a) http://www.pacode.com/secure/data/001/chapter35/s35.142.html allows parties to request subpoenas for the attendance of witnesses or production of documents upon written application to the agency’s head or oral application at a hearing. Weinberg v. Ins. Dep’t, 398 A.2d 1120 (Pa. Cmwlth. 1979).

UC - willful misconduct - failure to follow employer directive to attent meeting

Bonawitz v. UCBR - Cmwlth Court - Janaury 9, 2009 - unreported memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1027CD08_1-9-09.pdf

“Where an employee is discharged for refusing or failing to follow an employer’s directive, both the reasonableness of the demand and the reasonableness of the employee’s refusal must be examined.” Dougherty v. UCBR, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).

Where an employee’s action is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. UCBR, 450 A.2d 305 (Pa. Cmwlth. 1982). “In other words, if there was ‘good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.” Id. at 308 (citation omitted).

Under some circumstances, a claimant’s mistaken belief can constitute good cause justifying otherwise willful misconduct. Caterpillar, Inc. v. UCBR, 654 A.2d 199 (Pa. Cmwlth. 1995). However, incorrect subjective beliefs as to legal rights do not establish good cause for willful misconduct. Simpson.

Here, the Board did not find that Claimant had a mistaken belief as to the subject of the meeting. Instead, the Board determined Claimant failed to carry his burden to establish good cause for two reasons: [T]he employer credibly established that the claimant had proper representation present since a union steward was already in his office and another one was on the way.

Furthermore, the employer stated that no union representation was necessary, since the employer was not required to have union representation at a counseling session. Clearly, the Board made all credibility findings in favor of the Employer and none in favor of the Claimant. Also, the Board reasoned that any need for union representation was satisfied, regardless of the subject of the meeting.

UC- willful misconduct - intentional v. negligent conduct

Appleyard v. UCBR - Cmwlth. Court - January 8, 2009 - unreported en banc 4-3 decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/653CD08_1-8-09.pdf

Pharmacy technician held guilty of willful misconduct for failure to run prescription through scanning device, even absent evidence or finding that she acted either intentionly or mistakenly. The UCBR found that she intentionally skipped the scanning process to save time, in a rush situation. Given that, the court held that it was within the power of the Board to infer that claimant's actions were willful and not negligent or inadvertent.

"Given that no one other than Claimant knew whether she intentionally or mistakenly failed to follow the procedure, we cannot say the Board’s inference was unreasonable. Thus, given the Board’s role as the ultimate finder of fact, we are bound by the Board’s reasonable inference that Claimant deliberately violated the scanning policy because she was in such a hurry. In short, Claimant’s conduct, as a matter of law, constituted willful misconduct."

Dissent - There was a strong dissent, which cited employer testimony, admitting specifically ("I can't answer that.") that it could not determine, from what it knew, whether claimant had refused to follow the procedure or forgot to do so, or whether claimant's actions were unintentional and inadvertent."

" Employer’s witness was unable to testify as to whether Claimant deliberately violated Employer’s scanning rule. In fact, Employer’s witness stated that he hoped Claimant’s violation of the rule was not intentional. Such testimony is ironic given Employer’s burden to prove that Claimant’s violation of the scanning policy was intentional.

"An employer cannot establish willful misconduct merely by showing that a claimant committed a negligent act. Navickas v. UCBR, 567 Pa. 298, 787 A.2d 284 (2001). Thus, Employer could only meet its burden of proving a deliberate violation of the scanning rule through Claimant’s testimony. Claimant testified in her defense of the charge of willful misconduct that she grabbed the medicine without first scanning the bottle because she was “in a rush” to fill the prescription so that the delivery driver could leave on time.

"Claimant’s testimony establishes that her intention was to further Employer’s interest in seeing that customers receive their prescriptions in a timely manner.4 However, Claimant does not indicate whether, while in a rush to provide good customer service, Claimant deliberately skipped the scanning to save time or merely forgot about the relatively new scanning procedure. Thus, it is impossible to determine from Claimant’s testimony whether her violation of Employer’s scanning policy was intentional or negligent. The majority states, “Significantly … Claimant did not respond that she had forgotten to scan the medicine bottle or that her failure was inadvertent.” However, it was not Claimant’s burden to prove that her violation of the scanning policy was unintentional."

" Employer had to prove that Claimant deliberately violated the scanning rule, but Employer never asked Claimant whether she gave any thought to the rule while she was rushing to fill the prescription. Thus, I submit that Employer failed to meet its burden of proof.

HEMAP - reasonable prospect

Abess v. PHFA - Cmwlth. Court - January 8, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1035CD08_1-8-09.pdf

Applicant denied HEMAP mortgage loan assistance for failure to prove that he could resume full mortgage payments within applicable time.

To qualify for a HEMAP loan, a homeowner must meet all of the eligibility requirements set forth in Section 404c, 35 P.S. §1680.404c of the Homeowner’s Emergency Mortgage Assistance Act (Act), Act of December 23, 1983, P.L. 385, No. 91, as amended, 35 P.S. §1680.401c-§1680.410c.

That section provides that: (a) No assistance may be made with respect to a mortgage or mortgagor under this article unless all of the following are established:

(5) The agency has determined that there is a reasonable prospect that the mortgagor will be able to resume full mortgage payments within twenty-four (24) months after the beginning of the period for which assistance payments are provided under this article and pay the mortgage or mortgages in full by its maturity date or by a later date agreed to by the mortgagee or mortgagees for completing mortgage payments. (Emphasis added.) Section 404c of the Act, 35 P.S. §1680.404c(a)(5). (emphasis added)

Applicant's evidence about his work record showed that he had been self-employed in a number of businesses, but that none of those businesses generated any significant income. "Given the fact that those businesses failed to generate any substantial income in the past, and the fact that Petitioner’s expenses and mortgage payments far exceeded his income, the Agency had no other choice but to find that there was no reasonable prospect for him to resume full mortgage payments within 24 months." See Cullins v. PHFA, 623 A.2d 951 (Pa. Cmwlth. 1993); Koch v. PHFA, 505 A.2d 649 (Pa. Cmwlth. 1986).

zoning - standing - "close proximity"

Laughman v. Zoning Hearing Board - Cmwlth. Court - January 5, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/159CD08_1-5-09.pdf

Property was held to be not in "close proximity" to the zoning area, therefore owner did not have standing to question the zoning decision.

Generally, in order to establish standing as an “aggrieved person,” it must be shown that the person has a substantial, direct and immediate interest in the claim sought to be litigated. A substantial interest is one in which there is some discernible adverse effect to some interest other than an abstract interest all citizens have, and a direct interest requires a showing that the matter complained of causes harm to the party’s interest, though not necessarily a pecuniary interest.

Immediacy requires that the interest is something more than a “remote” consequence and centers on a causal nexus between the action complained of and the injury to the party challenging it....For a party to be “aggrieved,” the interest of the party who will be affected by the alleged illegal law must be distinguishable from the interests shared by all citizens.

However, the Commonwealth Court has held tat a property owner need not establish pecuniary or financial loss if his property is located in close proximity to the subject property because the zoning decision is presumed to have an effect on the property owner’s property.

Obviously, property that is adjacent to or abuts the zoning area in question is in close proximity for standing purposes. In this case, the petitioner's commercial properties are located two miles from the district, his personal residence is almost a full mile away, and his rental residential properties are 8/10 of a mile awayict. Because these properties are not in close proximity to the subject property, without a showing of some sort of direct injury, he lacks standing to challenge the zoning amendment.

tax sale - standing

Fongsue v. Tax Claim Bureau - Cmwlth. Court - January 5, 2008 - unreported mem. decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1229CD07_1-5-09.pdf

Party who purchased property subsequent to tax claim tax does not have standing to petition to set aside the sale, since he was not the "owner" under 72 P.S. § 5860.607(a) at the time of the tax sale.

consumer - state UDAP claims - federal court - removal

Byrd v. Car and SUV Outlet, et al. - ED Pa. - December 29, 2008

http://www.paed.uscourts.gov/documents/opinions/08D1533P.pdf

Plaintiff sued defendant, from which he bought a used car, for various alleged state-law causes of actions, including one under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, which claim alleged several distinct violations, including assertions that Defendants violated the UTPCPLby breaching two federal statutes, the Truth in Lending Act and the Equal Credit Opportunity Act. Defendants sought to remove the case to federal court.

The court refused the motion to remove, holding that it did not have jurisdiction, since plaintiff had sought relief only under state law, not federal law, which were "merely two theories on which Plaintiff plans to proceed to establish a state law UTPCPL violation."

The court also held that it could still have jurisdiction if “the vindication of [Plaintiff’s] right[s] under state law necessarily turned on some construction of federal law” but held that “the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction. The federal issue must be “an essential one in the forefront of the case and not collateral, peripheral, or remote”

The federal issues in this case were held to be "not essential to establishing Plaintiff’s right to relief....The TILA and ECOA violations are merely two theories, in addition to the various theories based on state law, that Plaintiff has asserted to establish his right to relief under the UTPCPL. This is insufficient, however, to establish federal jurisdiction."

UC - willful misconduct - employer disciplinary policy - lack of Board findings

Jones v. UCBR - Cmwlth. Court - December 31, 2008 - unpublished memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1097CD08_12-31-08.pdf

Claimant was terminated for several alleged incidents of no-call/no-show.

inconsistent Board findings - The court found that "[b]ecause the Board's findings are inconsistent with the evidence, this matter must be remanded for clarification...and a new decision."

no finding on employer compliance with its own disciplinary policy - Claimant argued that the employer did not comply with its own disciplinary policy and that therefore "she should be allowed to return to work for Employer to comply with the policy." The court said that "[w]here an employer promulgates a specific disciplinary system, a discharge under that system may not be deemed to be for willful misconduct if the employer fails to follow the specified process. PMA Reinsurance Corp. v. UCBR, 558 A.2d 623 (Pa. Cmwlth. 1989).

The Board made no findings on whether Employer followed its policy by giving warnings to Claimant after the alleged occurrences of her no calls/no shows, and the Board did not mention the issue in its decision. This issue therefore must be addressed upon remand of this matter. Accordingly, the Board's order is vacated and this matter is remanded to the Board for a clarification of its inconsistent findings of fact and for additional fact finding, if necessary, as to whether Employer complied with its written policy requiring that it provide employees with verbal and written warnings in the case of no call/no show occurrences."

mortgage foreclosure - abuse of process - elements/pleading

Birchall v. Countrywide Home Loans - ED Pa. - December 23, 2008

http://www.paed.uscourts.gov/documents/opinions/08D1517P.pdf

Claim for abuse of process dismissed for failure to allege sufficient facts. The bare allegation was that there was an abuse of process.

"To establish a claim for abuse of process, a plaintiff must show that the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed, (3) resulting in harm to the plaintiff. Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa. Super. 2002)."

pre-emption - cigarette warnings - FTC and state consumer protection laws

Altria Group v. Good - US Supreme Court - December 15, 2008

http://www.supremecourtus.gov/opinions/08pdf/07-562.pdf

From the court's syllabus....

Respondents, smokers of petitioners’ "light" cigarettes, filed suit, alleging that petitioners violated the Maine Unfair Trade Practices Act(MUTPA) by fraudulently advertising that their "light" cigarettes delivered less tar and nicotine than regular brands. The District Court granted summary judgment for petitioners, finding the state-lawclaim pre-empted by the Federal Cigarette Labeling and Advertising Act (Labeling Act). The First Circuit reversed, holding that the Labeling Act neither expressly nor impliedly pre-empts respondents’ fraud claim.

Held: Neither the Labeling Act’s pre-emption provision nor the Federal Trade Commission’s actions in this field pre-empt respondents’ statelaw fraud claim. Pp. 5–20.

(a) Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose. When the text of an expresspre-emption clause is susceptible of more than one plausible reading,courts ordinarily "accept the reading that disfavors pre-emption." The LabelingAct’s stated purposes are to inform the public of the health risks ofsmoking while protecting commerce and the economy from the ill effects of nonuniform requirements to the extent consistent with the first goal. Although fidelity to these purposes does not demand thepre-emption of state fraud rules, the principal question here is whether that result is nevertheless required by 15 U. S. C. §1334(b), which provides that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to theadvertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." Pp. 5–9.

(b) Respondents’ claim is not expressly pre-empted by §1334(b). As determined in several Supreme Court cases, the phrase "based onsmoking and health" modifies the state-law rule at issue rather than a particular application of that rule. The plurality in one case concluded that "the phrase ‘based on smoking and health’ fairly but narrowly construed" did not pre-empt the plaintiff’s commonlaw claim that cigarette manufacturers had fraudulently misrepresented and concealed a material fact, because the claim alleged a violation of a duty not to deceive—a duty that is not "based on" smokingand health. Respondents here also allege a violation of the duty not to deceive as codified in the MUTPA, which, like the common-law duty in Cipollone, has nothing to do with smoking and health. Respondents’ claim is not analogous to the "warning neutralization" claim found to be pre-empted in Cipollone. Reilly is consistent with Cipollone’s analysis. This Court disagrees with petitioners’ alternative argument that the express pre-emption framework of Cipollone and Reilly should be rejected.

(c) Various Federal Trade Commission decisions with respect to statements of tar and nicotine content do not impliedly pre-empt state deceptive practices rules like the MUTPA. Pp. 17–20. 501 F. 3d 29, affirmed and remanded.

STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined.

PFA - abuse - fear of imminent serious bodily injury; indecent assault

Thompson v. Thompson - Superior Court - December 16, 2008

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56023_08.pdf

Actual physical harm is not a prerequisite for the entry of a PFA order; the victim need only be in reasonable fear of imminent serious bodily injury. Fonner, 731 A.2d at 163. Mother establish that by evidence that

- Father forcibly grabbed Mother's breasts and crotch and yelled obscenities at their sons when they tried to intervene on her behalf.
- On one occasion Father came home drunk early in the morning, got into a fight with the older son, and then tried to hit him with his car.
- Father drinks and abuses cocaine, that she is afraid of Father, and that she fears for her children when they are in his custody.
- Father sideswiped eldest son with his car as son walked to school, because he was afraid that father was high on cocaine
- Father pushed and shoved youngest son and regularly threatened to hurt him

The court considered the sufficiency of the evidence in light of McCance v. McCance, 908 A.2d 905 (Pa. Super. 2006), where the Superior Court concluded that the evidence was sufficient to establish reasonable fear of imminent serious bodily injury where plaintiff testified that defendant stood in front of her car while she was in it and yelled obscenities and threats, that the defendant struck her car with such force that repairs were needed, and that the defendant had a drinking problem, anger issues and had been physically violent with other people in the past.

The evidence also establishes that Father has grabbed Mother in a sexual way when she arrived at his house to pick the children up, by grabbing her breasts and crotch while making lascivious comments such as, "You know you like it." This was indecent assault under 18 Pa. C.S.A. § 3126(a). "Accordingly, the evidence supports the PFA court’s determination."

UC - petition for review - preservation of issues

Patla v. UCBR - Cmwlth. Court - December 18, 2008

http://www.courts.state.pa.us/OpPosting/Cwealth/out/823CD08_12-18-08.pdf

The court granted the UCBR's motion to strike the appeal for failure of the petition for review to state appellant's objections with specificity, as required by Pa. R.A.P. 1513. The petition "merely that the determinations in the UCBR’s order were “not supported by the record,” and “that there is no legal basis for the UCBR’s denial of benefits.”

The court said that those objections did not "fairly embrace the willful misconduct issue, and failed to identify specific findings of fact that are allegedly unsupported by substantial evidence. Pearson v. UCBR, 954 A.2d 1260, 1263 (Pa. Cmwlth. 2008)."

To determine if a petition for review states a claimant’s objections with sufficient specificity, the court said that it looks to Pa. R.A.P. (Rule) 1513(d), which requires that a petition for review contain “a general statement of the objections to the order or other determination.” The general statement “will be deemed to include everysubsidiary question fairly comprised therein.” Rule 1513(d)(6).

However, more than a bare restatement of the scope of review is required, as the court held in Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005). In Deal, the court dismissed the petition for review because it stated only that the Board "was guilty of an error of law in deciding to reverse the decision of the Referee and deny benefits, and that there was a "a lack of substantial evidence to support the decision of the Board." It "did not contain any statement that fairly embraced the legal issue in the case and did not identify specific findings that were allegedly unsupported by substantial evidence; thus, the petition contained no issues for review."

"In the instant case, Claimant’s petition suffers from the same insufficiencies as the petition in Deal. Claimant’s Claimant’s Petition for Review offers no statement that this Court could deem “fairly embraces” willful misconduct, nor does it set forth what findings of fact were unsupported by the evidence. Accordingly, although developed in Claimant’s brief, his arguments regarding the issues will not be considered by this Court on appeal. See Deal."

In addition the claimant did not address any of the issues raised in the UCBR’s motion to strike the petition for review, despite the court’s direction to do so.

UC- failure to attend hearing - remand - good cause

Scott v. UCBR - Cmwlth. Court - December 18, 2008 - unreported memorandum opinion

http://www.courts.state.pa.us/OpPosting/Cwealth/out/985CD08_12-18-08.pdf

Held, that where good cause for a remand does not appear on the face of a request by a party who did not attend the initial hearing, it is error for the Board to grant a remand under 34 Pa. Code §101.24. In this case, claimant said that she did not attend because she couldn't find the location of the hearing, even though she had received proper and timely written notice.

The regulation provides: (a) If a party who did not attend a scheduled hearing subsequently gives written notice, which is received by the tribunal prior to the release of a decision, and it is determined by the tribunal that his failure to attend the hearing was for reasons which constitute “proper cause,” the case shall be reopened. Requests for reopening, whether made to the referee or Board, shall be in writing; shall give the reasons believed to constitute “proper cause” for not appearing …. (c) A request for reopening the hearing which is not received before the decision was mailed, but is received or postmarked on or before the 15th day after the decision of the referee was mailed to the parties shall constitute a request for further appeal to the Board and a reopening of the hearing, and the Board will rule upon the request. If the request for reopening is …. denied, the Board will append to the record the request, supporting material and the ruling on the request, so that it shall be subject to review in connection with any further appeal to the Commonwealth Court.

The Board has discretion regarding requests for remands to supplement a hearing record. Harrison v. UCBR, 457 A.2d 238 (Pa. Cmwlth. 1983). In reviewing a decision of the Board to deny a request for a remand, the court will reverse the Board’s decision only if the Board has abused its discretion. Department of Auditor General v. UCBR, 484 A.2d 829 (Pa. Cmwlth. 1984).

The usual purpose of a remand is to allow the submission of pertinent evidence that a party did not offer at the initial hearing because it was not available at that time. Brady v. UCBR, 539 A.2d 936 (Pa. Cmwlth. 1988). Thus, in Flores v. UCBR, 686 A.2d 66 (Pa. Cmwlth. 1996), the court held that the Board did not abuse its discretion in denying a request for a remand for the submission of evidence that had been available at the time of the original hearing. See also Fisher v. UCBR, 696 A.2d 895 (Pa. Cmwlth. 1997).

In Sanders v. UCBR, 524 A.2d 1031 (Pa. Cmwlth. 1987), the court held that the Board had abused its discretion in remanding a case for a second hearing where the employer had not offered good cause as to why it did not appear at the initial hearing. The Court held that it was not “necessary to remand a case to the Board for findings of good cause where, as here, the employer’s explanations on for its failure to appear do not--on their face--rise to the level of ‘proper cause’ as a matter of law.” Sanders, 524 A.2d at 1033 (citation omitted). See also, Ortiz v. UCBR, 481 A.2d 1383 (Pa. Cmwlth. 1984) (Board should decide case on the merits, without remand, where no proper cause for a remand.)

In this case, the reasoning in Sanders applies, despite the harsh result. If one assumes that claimant’s description of her efforts is accurate, the court held that she could have taken more reliable measures to ensure that she knew where she needed to be and how to get there. In this case, had she called the referee’s office and obtained information, she may have been able to avoid the mistake she made in her effort to appear at the hearing. Claimant did not take the necessary steps to protect her own interests. The Board did not abuse its discretion in denying claimant’s request to reopen the case and remand to the referee for additional testimony

Social Security - standard of proof

http://edocket.access.gpo.gov/2008/pdf/E8-30056.pdf

SUMMARY: We are amending our rules to clarify that we apply the preponderance of the evidence standard when we make determinations and decisions at all levels of our administrative review process.

These rules do not change our policy that the Appeals Council applies the substantial evidence standard when it reviews a decision by an administrative law judge (ALJ) to determine whether to grant a request for review.

We are also adding definitions of the terms ‘‘substantial evidence’’ and ‘‘preponderance of the evidence’’ for use in applying these rules.

DATES: These final rules are effective on January 20, 2009.

Note:
This rule change highlights the difference between standard of proof and standard of review. It is consistent with state law on the issues. “The degree of proof required to establish a case before an administrative tribunal is the same degree of proof used in most civil proceedings, i.e., a preponderance of the evidence.” Samuel J. Lansberry Inc v. PUC, 578 A.2d 600, 602 (Pa. Cmwlth. 1990). Accord, Steadman v. SEC, 450 U.S. 91 (1981) (discussing the proper standard of proof and the confusion between standard of proof and standard of review.

The proper standard of proof can be a constitutional matter and involve balancing of competing interests. See, e.g., Addington v. Texas, 441 U.S. 323 (1979); In Re Winship, 397 U.S. 357 (1970). In a Child Protective Services Law case, J.S. v. DPW, 596 A.2d 1114, 1116 n. 2 (Pa. 1991), the court suggested that the proper standard of proof in administrative hearings under that statute was “clear and convincing,” because the fundamental right to reputation under Article I, sec. 1, of the Pa. Constitution was at stake. See also, A.Y. v. DPW, 641 A.2d 1148, 1152, 1153-4 (discussing the importance of right to reputation). This is also the standard in welfare cases where fraud is being charged, 55 Pa. Code 275.31.

administrative law - commissions - powers

Deoria v. State Athletic Commn. - Cmwlth. Court - December 8, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1266CD08_12-8-08.pdf

A commission has the status set out in the Administrative Code of 1929, 71 P.S. §§51 - 732. As a statutorily created agency of the Commonwealth, a commission has only those powers expressly conferred upon it by statute or those powers which are necessarily implied from its express powers. DeMarco v. Department of Health, 397 A.2d 61 (Pa. Cmwlth. 1979) (Administrative agencies, being creatures of the legislature, are vested only with those powers conferred by the statute or such as are necessarily implied from a grant of such powers; where authority is conferred on such an extrajudicial body, the legislative grant of power to act in any particular case must be clear.); Human Relations Commission v. St. Joe Minerals Corp., 476 Pa. 302, 382 A.2d 731 (1978) (The power and authority to be exercised by administrative commissions must be conferred by legislative language clear and unmistakable. A doubtful power does not exist.). An agency must act within the strict and exact limits as statutorily defined. Id.

real property - tax sale - redemption - timely petition

U.S. Bank Natl. Assn. v. Parker - Superior Court - December 8, 2008

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56038_08.pdf

Upon payment of all the necessary costs and fees, the owner of any property sold under tax or municipal claim may redeem the property at anytime within nine months of acknowledgement of the sheriff’s deed. 53 Pa. C. S. § 5293(a).

It is undisputed that the sheriff’s deed was acknowledged on March 19, 2007. Thus, Appellant had until December 19, 2007, in order to file her petition to redeem. Unfortunately for Appellant, she filed her petition on December 24, 2007, i.e., five days late.

employment - public - suspension - due process

Dee v. Borough of Dunmore - 3d Cir. - December 5, 2008

http://www.ca3.uscourts.gov/opinarch/071720p.pdf

Public employee (fire fighter) had property and liberty interests in non-suspension without just cause under 42 USC 1983 and 53 P.S. § 46190. Case remanded for determination of whether there were exigent circumstances which justified suspension without prior notice and hearing.

UC- vol. quit - voluntary retirement

Degosky v. UCBR - Cmwlth. Court - December 4, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1129CD08_12-4-08.pdf

Subjective, unsubstantiated fear of a layoff, plus offer of voluntary retirement package did not establish good cause to quit a job. In Staub v. UCBR, 673 A.2d 434, 437 (Pa. Cmwlth. 1996), the court held that speculation pertaining to an employer’s financial condition and future layoffs, however disconcerting, does not establish the requisite necessitous and compelling cause. Instead, the relevant inquiry is whether surrounding circumstances at the time an employee voluntarily leaves indicate a likelihood that fears about his or her job security will otherwise materialize, that serious impending threats to the employee’s job will be realized and that the employee’s belief that his job is imminently threatened is well founded. Moreover, while the fact that an employer has made an offer of retirement or other incentive package is important, it is not dispositive of the issue. There must be some additional circumstances existing at the time the employee accepts the offer, e.g., a lack of suitable continuing work, either currently or at a discernible point in time, together with statements or actions of the employer showing a likelihood of imminent layoff.

Here, Claimant's fear of loss of his job was "only a subjectively perceived possibility." He was "never informed that his job was in imminent danger and his supervisors informed him only that they did not know the status of his job, and further, there was evidence that continuing work was available to him. Other than his speculation that his job was in imminent danger because some of his work had been moved to Texas, there is no evidence that would prove that his concerns would be realized.

UC - willful misconduct - rule violation - mistreatment of fellow workers

Torres-Williams v. UCBR - Cmwlth. Court - December 4, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/910CD08_12-4-08.pdf

Employer rule required workers to treat each other with "courtesy, honor, and respect." On December 31, 2007, Employer issued a warning to Claimant for improper verbal communications to patients and co-workers. On January 9, 2008, Claimant asked a question of a co-worker. When the co-worker indicated that she did not know the answer to Claimant’s question, Claimant responded “Jesus Christ, what do you know?” Employer fired claimant for that behavior the next day. Employer produced evidence as hearing of other similar incidents as well.

Claimant alleged that she did not have any bad intent when she made the remark and that it is not considered offensive in some cultures. The court said that she did not produce any authority "for her position that the lack of offensive intent constitutes good cause in a willful misconduct case. The sole questions the Board, and this Court, can consider are: (1) whether the statement is offensive, (2) whether the employee intended to make the statement and (3) whether the statement violated a rule of the employer. See Williams v. UCBR, 926 A.2d 568 (Pa. Cmwlth.), petition for allowance of appeal denied, 596 Pa. 712, 940 A.2d 368 (2007). Again, the evidence of record supports the Board’s findings and ultimate conclusion herein."

UC - appeal - petition for review - preservation/waiver of issues

Torres-Williams v. UCBR - Cmwlth. Court - December 4, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/910CD08_12-4-08.pdf

The court rejected the Board's attempt to quash or strike the petition for review based on claims that (1) the petition does not seek to challenge the basis of the Board’s decision, i.e., Claimant’s conduct constitutes willful misconduct, and (2) the petition for review does not seek to challenge matters over which this Court can exercise its powers of review, i.e., the Board’s factual findings, legal errors or constitutional violations.

The court said that it "has recently indicated that we may 'decline to consider issues a claimant fails to raise with sufficient specificity in his petition for review.” Pearson v. UCBR, 954 A.2d 1260, 1263 (Pa. Cmwlth. 2008). We have also dismissed a claimant’s petition for review where the claimant only asserted vague issues of error on the part of the Board or simply asserted that the Board’s decision was not supported by substantial evidence. See Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005).

A claimant must submit a statement in his or her petition for review that is more substantial than merely a recitation of our standard of review. Admittedly, the grounds for reversal as stated by Claimant in her petition for review are somewhat lacking. However, Claimant does allege in her petition that she is challenging the Board’s decision based upon “minimum grounds of evidence.” We interpret this statement as a challenge to the Board’s findings and its conclusion that Employer met its burden of establishing willful misconduct. Claimant’s argument herein is similar to the arguments raised by the claimant in Pearson, who alleged that the Board had failed to “review all the facts” and that “this case is not strong enough,” which we interpreted as a challenge to the employer’s burden of proof and which we relied upon in rejecting the application of the waiver doctrine. Pearson, 954 A.2d at 1263.12

child abuse - expungement - photos as evidence of severe pain - perpetrator criminally negligent

S.T. v. DPW - Cmwlth Court - December 4, 2008 (order directing publication of Sept. 24th opinion)

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/91CD08_12-4-08.pdf

Denial of expungment affirmed

photographic evidence showed "severe pain"
Photographic evidence held to be sufficient proof of severe pain. "A finding that a child has suffered severe pain does not need to be supported by witness testimony or medical evidence. D.N. v. DPW, 562 A.2d 433 (Pa. Cmwlth. 1989). In fact, this Court has concluded that photographs alone of a child’s injuries may support a finding that the injuries caused the child severe pain. City of Philadelphia, Office of Children, Youth and Family Services v. DPW, 767 A.2d 10 (Pa. Cmwlth. 2001).

The ALJ said the the photots "show bruises over much of the child’s body. The picture of the extensive bruising from the child’s abdomen to his groin is especially graphic. As such, the pictures depict the result of a savage beating that was far removed from any acceptable corporal punishment." From the photos one could "reasonably infer that the injuries caused severe pain."

petitioner was one of the "perpetrators" of the abuse
Petitioner/mother was held to be a perpetrator of the abuse, even thought it was her boyfriend who inflicted most of it. The " standard to be used when evaluating a perpetrator’s actions in administering corporal punishment is whether or not her actions equals that of criminal negligence. P.R. v. DPW, 569 Pa. 123, 801 A.2d 478 (2002)."

A person is criminal negligent "with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. 18 Pa. C.S. § 302(b)(4).

Petitioner, by her own testimony, decided to abdicate her parental responsibilities regarding discipline to her boyfriend. She then also chose not to be present in the room where she knew her son was being hit with a belt. Upon hearing her son cry, she entered his room. Once in the room, Petitioner did not suggest that she made any attempt to determine whether the punishment her son was receiving was appropriate. She did not raise any questions as to the force being used to hit the child or the location of the blows on his body. Instead, Petitioner’s only concern upon entering the room was to further punish S.P. for violating her “no crying while taking a beating” rule. After hitting S.P. herself, she chose to return the belt to her boyfriend so he could continue the punishment. She then left the room, again choosing not to monitor the situation. As such, Petitioner’s acts and omissions equal a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

consumer - arbitration clause - bank depositor agreement

Baylis v. Wachovia Bank, ED Pa., November 25, 2008

http://www.paed.uscourts.gov/documents/opinions/08D1397P.pdf

In customer's suit against a bank for allowing a wrongful attachment of her account, the court granted the bank's motion to compel arbitration, because of a depositor agreement that the bank customer said she never received. The court found that the custody "agreed to the terms of the depositor agreement, including the arbitration of disputes, because she continued to use her accounts." The customer said that she never got the depositor agreement and therefore could not have entered into a contract with the bank. She also argued that the agreement was a contract of adhesion and thus unenforceable.

A depositor agreement was allegedly mailed to the customer in 2003. The agreement included the following: 25. Arbitration of Disputes/Waiver of Jury Trial and Participation in Class Actions. If either you or we request, any irresolvable dispute or claim concerning your account or your relationship to us will be decided by binding arbitration under the expedited procedures of the Commercial Financial Disputes Arbitration Rules of the American Arbitration Association (AAA), and Title 9 of the US Code.

proof of mailing, presumption of receipt - The court accepted the affidavit of mailing of a 3rd party company which had a contract with the bank to mail notices to depositors. The court said that the "affidavit credibly recites that the affiant's company...was retained in 2003 to mail notices to bank depositors... [and] stated he found plaintiff's name in the database used to generate the mailing. The contents of the mailing included a letter to depositors and the new Deposit Agreement." The court accepted this as creating a presumption of receipt under F.R.Civ.P 6(e).

The court rejected depositor's attempt to overcome the presumption, distinguishing Carnathan v. Ohio National Life Insurance Co., No. 06-999, 2008WL 2578919, at *5 (M.D. Pa. June 26, 2008), which held the plaintiff in that case had offered sufficient evidence to overcome the presumption of receipt when he detailed his business’s handling of incoming mail and invoices. " The court distinguished Carnathan "both by the quantum of evidence offered to rebut the presumption and by the rights at stake. In Carnathan, the court found only the plaintiff had offered sufficient evidence to preserve the issue for trial. Id. If the Carnathan court had granted summary judgment, the plaintiff would have lost a disability policy for which he had diligently paid for 13 years....In this case, Baylis has offered less evidence of non-receipt to overcome the presumption and she retains all of her rights to be made whole in arbitration. For that reason, I find Baylis received the 2003 mailing of the depositor agreement including Paragraph 25 compelling arbitration."

not a contract of adhesion - Citing 3rd Circuit law, the court said that a "contract is “not unconscionable merely because the parties to it are unequal in bargaining position.” Alexander v. Anthony Int’l, L.P., 341 F.3d 256, 265 (3d Cir. 2003). The dominant party must use its position to impose “terms that unreasonably favor one party to which the disfavored party does not truly assent.” Id. The Third Circuit held an arbitration clause is not unconscionable, even in a contract of adhesion, because “plaintiffs who sign valid arbitration agreements . . . retain the full range of . . . substantive rights.” Gay v. CreditInform, 511 F.3d 369, 391-92 (3d Cir. 2007) (holding a depositor to the terms incorporated by reference on a signature card). A consumer who objects to the terms of a contract of adhesion “certainly could have decided to forego obtaining [the bank’s] services.” Id. at 391 n.15.

Baylis’s contract with Wachovia is not unconscionable and she could have terminated her agreement with Wachovia had she objected to the arbitration clause. Because I find Baylis received the depositor agreement and entered into the contract by continuing to use her account, I conclude Baylis agreed to arbitrate any dispute with Wachovia. I will grant Wachovia’s Motion to Compel Arbitration.

federal courts - 11th Amendment - SEPTA - FLSA claims

Cooper et al. v. SEPTA - 3d Cir. - November 26, 2008

http://www.ca3.uscourts.gov/opinarch/071522p.pdf

SEPTA not entitled to 11th Amendment immunity for plaintiffs' FLSA claims for wages for pre-safety inspections.

issue preclusion - UC referee decision has no preclusive effect in wrongful discharge case

Gonzalez v. AMR, American Airlines - 3d Circuit - November 26, 2008

http://www.ca3.uscourts.gov/opinarch/065161p.pdf

A UC claimant lost a referee hearing and took no further appeal. He then sued under the state wrongful discharge statute, and the employer moved to dismiss on issue preclusion grounds.

There is a four-prong test for issue preclusion, including whether the issue determined in the prior action the same as that in the subsequent action.

In this case, there was no preclusive effect since, the issue in the UC case - willful misconduct - was not the same as the issues involved in the employee's cause of action under the state wrongful discharge statute.

admin. law - adequate findings - remand

Resource Staff, Inc. v. UCBR - Cmwlth. Court - November 25, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/779CD08_11-25-08.pdf

The court ordered a remand of this UC self-employment case, because of the UCBR's failure to "address all of the factual issues that are essential to the legal determination of Claimant's eligibility for benefits. "We recognize that the record contains ample testimony and other evidence that would support additional, necessary findings; however, it is for the UCBR, and not this court, to provide findings of fact that are sufficiently specific" to decide the legal issues in the case.

UC - self-employment

Resource Staff, Inc. v. UCBR - Cmwlth. Court - November 25, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/779CD08_11-25-08.pdf

This case was remanded because of the UCBR's failure to "address all of the factual issues that are essential to the legal determination of Claimant's eligibility for benefits " and the issue of whether claimant was an employee or independent contractor.
In its opinion the court noted the following:

- A determination regarding the existence of an employer/employee relationship is a question of law that depends upon the unique facts of each case. Danielle Viktor, Ltd. v. DLI, Bureau of Tax Operations, 586 Pa. 196, 892 A.2d 781 (2006).

- 43 P.S. §753(l)(2)(B) establishes a presumption that an individual earning wages for services rendered is an employee, as opposed to an independent contractor, and it also allows a putative employer to overcome that presumption by showing that: (a) the individual was free from control and direction in the performance of his work; and (b) in the performance of his services, the individual was customarily engaged in an independently established business or occupation. Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee.

- The issue of control of the putative employer "must be based on the totality of circumstances" and involves "many factors, such as: whether there was a fixed rate of remuneration; whether taxes were deducted from the claimant’s pay; whether the presumed employer supplied equipment and/or training; whether the presumed employer set the time and location for the work; whether the presumed employer had the right to monitor the claimant’s work and review his performance; and the requirements and demands of the presumed employer. No single factor is controlling."

ripeness - delay in court review

Philips Bros. Electrical Contractors v. Turnpike Commission - November 24, 2008 - Cmwlth. Court

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/318CD08_11-24-08.pdf

Held, that there was an adequately developed record and sufficiently concrete contest to rule on prospective bidder's protest filed in anticipation of solicitation of bids. The case was thus ripe for review by court.

The doctrine of ripeness arises out of a judicial concern not to become involved in abstract disagreements of administrative policies. Texas Keystone, Inc. v. DCNR, 851 A.2d 228 (Pa. Cmwlth. 2004). The doctrine insists on a concrete contest, where there is a final agency action so that the courts can properly exercise their function. Id. Court rulings applying the ripeness doctrine are premised on policies of sound jurisprudence; courts should not give answers to academic questions, render advisory opinions, or make decisions based on assertions of hypothetical events that might occur in the future. Phila. Entm’t & Dev. Partners, L.P. v. City of Phila., 594 Pa. 468, 937 A.2d 385 (2007). Township of Derry v. Pa. Dep’t of Labor & Industry, 593 Pa. 480, 482, 932 A.2d 56, 57-58 (2007).

In deciding whether the doctrine of ripeness bars our consideration of a declaratory judgment action, we consider “whether the issues are adequately developed for judicial review and what hardships the parties will suffer if review is delayed.” Alaica v. Ridge, 784 A.2d 837, 842 (Pa. Cmwlth. 2001)...The factors we consider under our “adequately developed” inquiry include: whether the claim involves uncertain and contingent events that may not occur as anticipated or at all; the amount of fact finding required to resolve the issue; and whether the parties to the action are sufficiently adverse. Id. Under the “hardship” analysis, we may address the merits even if the case is not as fully developed as we would like, if refusal to do so would place a demonstrable hardship on the party. Id.

However, the court held that there was no "requisite harm occasioned by delay in review...." The harms alleged pertained to the merits of the case and not to anything caused by delayed review. The "Prospective Bidder suffers no demonstrable hardship if review is delayed until the time frame set forth in the statute....[The statute] provides a complete remedy upon timely review" and the court saw "no demonstrable harm to the parties if review is delayed."