juvenile record - expungement - 18 Pa. CS 9123 - "cause shown"

In the Interest of A.B. - Superior Court - December 24, 2009


http://origin-www.courts.state.pa.us/OpPosting/Superior/out/E05005_08.pdf

Appellant, A.B., appeals from the order entered in the Monroe County Court of Common Pleas, which denied his petition to expunge his juvenile record. Specifically, Appellant asks us to determine whether the court committed an error of law or an abuse of discretion when it denied Appellant’s petition, after he had fulfilled all of the requirements for expungement under 18 Pa.C.S.A. § 9123(a)(3), the Criminal History Record Information Act (“CHRIA”).

We hold the trial court misapplied the law in denying Appellant’s expungement petition, where Appellant fulfilled the requirements under Section 9123(a)(3); and the Commonwealth failed to show cause to deny expungement and retain Appellant’s juvenile record. Accordingly, we reverse and remand with directions to expunge Appellant’s juvenile recore.

The CHRIA states the court “shall” expunge a juvenile record where the petitioner meets the requirements of any subsection under Section 9123(a)(3), unless the Commonwealth successfully justifies retention of the juvenile record, otherwise stated as “except upon cause shown.” 18 Pa.C.S.A. § 9123(a)

The lower courts misconstrued the "cause shown" language by applying adult cases and criteria.

The lower court relied on a criminal drug statute, because the juvenile offense involved possession with intent to distribute. However, Appellant was not charged with,indicted for, or convicted of committing PWID or any other criminal offense. Rather, the juvenile court adjudicated Appellant delinquent on a juvenile offense. See 42 Pa.C.S.A. § 6354(a)...In relying on Section 780-119(a), the Commonwealth essentially treated Appellant’s juvenile adjudication as synonymous with a criminal record, which blurred the fundamental and material differences between the Juvenile Code and the Crimes Code.

The lower courts also improperly relied on the decision in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981), which applied its factors test only to the adult expungement petitions before that Court, and declined to extend that analysis to the juvenile expungement petition at issue in the case.

Appellant had no record before his adjudications, he was a juvenile at the time of the offense, and subsequently he is living a law-abiding life. When Appellant filed his expungement petition, he worked a steady job, resided with his mother, and attended community college. Thus, Appellant demonstrated the conditions necessary to reasonably assure his redemption, consistent with the criteria in Section 9123(a)(3). Further, we recognize there are numerous adverse consequences inherent in the existence of a juvenile record, including the elusive stigma attached to an adjudication of delinquency, which the expungement statute sought to eliminate. Id. Appellant met the statutory requirements for expungement; he had no additional burden to show specific adverse consequences suffered before relief could be granted. Given the remedial nature of Section 9123(a), Appellant was entitled to a liberal construction and application of the statute, while the “show cause” exception to the remedial provisions should have been narrowly construed against the Commonwealth as its proponent.

Appellant was entitled to expungement of his juvenile record as a matter of law, because he met the requirements under 18 Pa.C.S.A. § 9123(a)(3). Five (5) years elapsed since his final discharge from probation, he has not been convicted of a subsequent felony, misdemeanor or adjudication of delinquency, and no proceeding is pending seeking a conviction or adjudication. Appellant maintains he finished high school, works a steady job, takes courses at a community college, and has had no further encounters with the legal system since the one in 1999. Under the statute, he was entitled to have his record expunged.

UC - willful misconduct - lateness - child-care problems

Mount Airy Casino Resort v. UCBR - Cmwlth. Court - December 23, 2009 - unreported memorandum opinion


http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/791CD09_12-23-09.pdf


child care problems can be "good cause" for lateness or absence
The court affirmed the UCBR holding that the claimant, who was sometimes late for work because of child-care problems, was not guilty of willful misconduct because he had "good cause for his absences and late arrivals. An employee may be entitled to receive benefits despite the violation of a work rule if he can demonstrate “good cause for his actions.” Crawford v. UCBR, 455 A.2d 751, 752 (Pa. Cmwlth. 1983).

Even "excessive late arrivals or absences will not constitute willful misconduct if the employee has good cause for the absences or late arrivals and properly reports them. Gillespie v. UCBR, 523 A.2d 1205, 1207 (Pa. Cmwlth. 1987). The necessity of taking care of children can constitute good cause. Mulqueen v. UCBR, 543 A.2d 1286, 1288 (Pa. Cmwlth. 1988); King v. UCBR, 414 A.2d 452, 455 (Pa. Cmwlth. 1980).

voluntary quit v. termination due to child-care issues
In cases where a claimant voluntarily quits due to childcare issues, the court has required a showing that the claimant reasonably investigated options to obtain the necessary childcare prior to quitting. Shaffer v. UCBR, 928 A.2d 391, 394 (Pa. Cmwlth. 2007); Beachem v. UCBR, 760 A.2d 68, 71 (Pa. Cmwlth. 2000). The court appears to have applied a similar standard in determining whether a claimant had good cause for an absence that led to her termination in King, 414 A.2d at 455 (noting that the claimant’s “efforts to make child care arrangements with friends, neighbors, relatives and day care centers were more than reasonable”).


The court found, however, that "there is a qualitative difference between a claimant who quits due to childcare issues and one who is terminated despite attempting to continue working in good faith. Importantly, a claimant who decides to quit his employment due to childcare reasons is in control of when the employment relationship ultimately ends. Therefore, it is expected that such a claimant will make substantial efforts in searching for alternative childcare before he resorts to quitting due to a lack of childcare. [emphasis added]

On the other hand, where a claimant is discharged from his employment for absenteeism or tardiness, the claimant is not in control of when the employment relationship ends, and the claimant must operate under more limited time constraints that are dictated, in large part, by the employer." While a claimant with a child-care problem "is expected to make reasonable efforts to find alternative childcare before he may use lack of childcare to establish a good cause basis for being absent or tardy, he is not necessarily required to make the same efforts that would be needed to justify quitting due to a lack of childcare." [emphasis added]

In this case, the record supports a finding that the claimant made sufficient attempts to arrange for alternative childcare under the circumstances. It also showed the "employer’s own acknowledged unwillingness to work with Claimant to arrange a schedule that would accommodate Claimant’s childcare needs."

Therefore the court "agreed with the Board that, under the circumstances of this case, Claimant had good cause for his final late arrivals and these late arrivals do not, therefore, rise to the level of willful misconduct."

housing - sec. 8 - termination - grounds - notice by T of intent to move to new unit - no HA approval required

Cain v. Allegheny Co. Housing Authority - Cmwlth. Court - December 22, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2440CD08_12-22-09.pdf

Sec. 8 tenant properly gave the housing authority notice of the fact that she was moving out of her apartment and moving to another unit, pursuant to the HA's termination notice due to her failure to pay rent and a plumbing bill. The tenant was not required to get the HA's approval to do this and thus the HA's proposed termination of her sec. 8 benefits was not proper.

The applicable regulation, 24 C.F.R. §982.552, provides that:

(b) Requirement to deny admission or terminate assistance (2) The PHA [Public Housing Authority] must terminate program assistance for a family evicted from housing assisted under the program for serious violation of the lease…

(c) Authority to deny admission or terminate assistance. (1) Grounds for denial or termination of assistance. The PHA may at any time deny program assistance for an applicant, or terminate program assistance for a participant, for any of the following grounds: (i) If the family violates any family obligations under the program (see §982.551) See §982.553 concerning denial or termination of assistance for crime by family members…. (Emphasis added).

Also relevant is sec. 982.314, which governs when a tenant can move to a new unit, with continuing sec. 8 assistance. The grounds for denial under this section are the same as those set out in §982.552(c). The failure to obtain approval of a move is not an enumerated basis to terminate assistance.

We agree with Tenant and the decisions of our sister courts that the ACHA cannot expand the basis for terminating assistance by stating that failure to obtain approval prior to a move can result in that consequence. Hill v. Richardson, 740 F.Supp. 1393 (SD Ind. 1990), vacated and remanded, 7 F.3d 656 (7th Cir. Ind. 1993); Holly v. Housing Authority of New Orleans, 684 F.Supp. 1363 (ED La. 1988); Smith v. Hamilton County, 2007 Ohio 1725 (Ohio App. 1 Dist. 2007).

HEMAP - circumstances - voluntary hardship - financial overextension

Schrack v. PHFA - Cmwlth. Court - December 21, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/719CD09_12-21-09.pdf

A homeowner’s voluntary decision which results in financial hardship does not constitute circumstances beyond a homeowner’s control. Cullins v. PHFA, 623 A.2d 951, 953 (Pa. Cmwlth. 1993).

The record here shows that when the applicant refinanced her home in 2006 in order to rebuild it after a fire, her monthly expenses exceeded her net monthly income and continues to do so. The Agency determined that the applicant became financially overextended with the origination of the mortgage and has remained financially overextended since the mortgage origination, and thus that she was not suffering financial hardship due to circumstances beyond her control. Whatever hardship was suffering was due not to her being laid off from work but rather her overextending herself prior to her unemployment.

Her contention that she would be employed soon, as would her fiancé, "cannot be the basis for the agency’s determination, as both contentions are speculative." The Agency is bound to evaluate a petitioner’s eligibility on the basis of her actual income history. Cullins. The Agency here properly considered petitioner’s only source of guaranteed income, unemployment benefits.

"As Petitioner’s income had been, and continued to be, inadequate to support her total housing expense, we conclude that the Agency was correct in determining that Appellant’s financial situation was simply the result of long term financial difficulties and not the emergency situation contemplated by Act 91."

UC - reopening of hearing - good cause

Motley v. UCBR - Cmwlth. Court - December 16, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/426CD09_12-16-09.pdf

Claimant did not show good cause for missing her UC hearing under 34 Pa. Code 101.24(a), which says that

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. 34 Pa. Code §101.24(a) (“Reopening of hearing”).

If the Board determines that a claimant did not have proper cause for failing to attend the referee’s hearing, then it must issue a decision based on the evidence developed in the claimant’s absence. Ortiz v. UCBR, 481 A.2d 1383 (Pa. Cmwlth. 1984).

In determining whether a claimant had proper cause for failing to attend a referee’s hearing, the Court in Savage v. UCBR, 491 A.2d 947, 950 (Pa. Cmwlth. 1985), concluded “a claimant's own negligence is insufficient ‘proper cause,’ as a matter of law, to justify his failure to appear at a referee's hearing ….”

The Court concluded here that it was the claimant’s own negligence that caused her failure to appear, and that her negligence was insufficient proper cause. The claimant testified that she had become lost and couldn't find the hearing office. The Board and court felt that she should have made more effort to find the hearing locations, including taking a test trip prior to the hearing.

admin. law - appeal - final adjudication

NHS Human Services v. DPW - December 8, 2009 - Commonwealth Court

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/347CD09_12-8-09.pdf

In holding a warning was not a final adjudiction under the Administrative Agency Law, 2 Pa. C.S. §§ 501-508, 701-704, the Court said that an "An adjudication is defined as 'Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities, or obligations of any or all of the parties to the proceeding in which the adjudication is made.' 2 Pa. C.S. §101.

A letter or an email message can constitute an adjudication, requiring notice and a hearing, if a two-prong test is met: 1) the letter must be an agency’s final order, decree, decision, determination or ruling; and 2) it must impact on a party’s personal or property rights, privileges, immunities, duties, liabilities or obligations. Guthrie v. Borough of Wilkinsburg, 505 Pa. 249, 478 A.2d 1279 (1984), Benson Lincoln Mercury, Inc. v. DOT, 602 A.2d 496 (Pa. Cmwlth. 1992), and Fiore v. DER, 510 A.2d 880 (Pa. Cmwlth. 1986).

UC - voluntary quit - racial discrimination

Atlas Machining and Welding v. UCBR - December 8, 2009 - Cmwlth. Court - unreported memorandum opinion


http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/651CD09_12-8-09.pdf


The court affirmed a Board decision finding that an African-American claimant had good cause to quit because of racial harassment, including racial slurs by a co-worker and foreman and several instances of his finding a rope fashioned in the shape of a noose.


"There is no question that racial discrimination may constitute necessitous and compelling cause to terminate one’s employment. Taylor; Brown v. UCBR, 780 A.2d 885 (Pa. Cmwlth. 2001); McIntyre v. UCBR, 420 A.2d 34 (Pa. Cmwlth. 1980); Watts v. UCBR, 410 A.2d 976 (Pa. Cmwlth. 1980)."

Given the employer's "ineffectual" attempts to address these problems, it would have been futile for claimant to pursue things further with the employer. Claimant thus had good cause to quit.

housing - code enforcement - illegal search - civil rights

Ciarlone v. City of Reading - ED Pa - November 18, 2009

http://www.paed.uscourts.gov/documents/opinions/09d1382p.pdf

Apartment owner and several tenants brought sec. 1983 action against city, code enforcement officer, et al. for unlawful inspection of premises by forced actions -- including breaking into apartments with sledge hammer -- without any warrant or notice to owner or tenants.

Defendants' motion to dismiss was rejected by the court, which held that plaintiffs had pleaded sufficient facts concerning a) the constitutionality of the search, b) the city's failure educate and train code enforcement officers, c) due process claims. and d) first amendment retaliation (plaintiff owner had publicly and repeatedly spoken out against the city code enforcement department) to survive a 12(b)(6) motion to dismiss.

consumer - natl. banks - gift card - state UDAP claims - no pre-emption

Mwantembe, et al. v. TD Bank, et al. - ED PA - November 17, 2009

http://www.paed.uscourts.gov/documents/opinions/09d1375p.pdf

Plaintiff brought class action on behalf of Pennsylvania residents who held or hold gift cards sold by the defendants, assert causes of action under Pennsylvania law for violations of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201-2(3), 201-2(4)(xxi), 201-3, breach of contract and third party beneficiary.

They allege that the defendants’ deducting undisclosed dormancy and other fees that diminish the value of the gift cards before their expiration is “deceptive, unlawful, and misleading,” and is calculatedto “trick, mislead, and significantly confuse consumers in Pennsylvania into not retaining or claiming the full value and buying power” of the cards.

The plaintiffs allege that the defendant banks marketed and sold the gift cards without adequately disclosing the cards’ material terms and conditions to purchasers and recipients. They also claim that prior to purchase, the defendants’ representatives never discussed or otherwise disclosed to purchasers the imposition of dormancy and replacement fees, or issue dates and expiration dates.

The question is whether state law imposing disclosure and marketing requirements for gift cards prevents or significantly interferes with the national banks’ activity or the federal regulator’s exercise of its powers.

Because enforcing state consumer protection laws regarding the disclosures does not conflict with federal law governing gift cards and will not unduly impair the defendants banks’ ability to engage in the business of selling gift cards, we hold that the plaintiffs’ state law claims are not preempted.

UC - appeal - lack of jurisdiction

Pa. Turnpike Commission v. UCBR - Cmwlth. Court - December 3, 2009

http://www.pacourts.us/OpPosting/Cwealth/out/1104CD09_2-19-10.pdf

The court upheld a UCBR decision that a UC Service Center did not have jurisdiction to issue an amended financial determination, finding claimant ineligible under sec. 1002(11) (policy-making services excluded from "employment"), when it had previously issued a financial determination finding claimant eligible.

= = = = = = = = = = = = =

Claimant was laid off from her job on November 20th, when her position was eliminated. She applied for UC shortly after that time.

On December 2nd, the UCSC issued a financial determination notice (First Notice) finding the claimant was financially eligible for UC. Claimant began receiving benefits. The Notice advised the employer that it had until December 17th to appeal. It did not do so.

On January 20, 2009, and "without any intervening activity of record," the UCSC issued a Second Notice of financial determination finding claimant not financially eligible, because her job involved making policy decision. Claimant filed a timely appeal.

At the ensuing referee, claimant testified that her duties did not involve making policy decisions. The employer witness testified that employer did not receive the First Notice but that it would have known about claimant's receipt of UC benefits shortly after payments began. Employer did not appeal from the First Notice.

The Board affirmed the referee decision that, because Employer did not appeal the First Notice, the UCSC lacked jurisdiction to issue the Second Notice, where it was outside of the appeal period, citing 43 P.S. 821(3), which says that a party must appeal a determination within 15 days.

The court held that the Service Center did not have jurisdiction to issue the Second Notice.

Section 501(e) of the Law, 43 P.S. §821(3), provides. . .that a party must appeal a determination within 15 calendar days after such notice was delivered to that party personally or was mailed to his or her address. The Service Center may issue a revised notice of determination within the appeal period if no appeal has been filed. Garza v. UCBR, 669 A.2d 445 (Pa. Cmwlth. 1995). However, the Service Center may not issue a revised notice of determination after the appeal period has expired; the determination becomes final and the Board loses jurisdiction to consider the matter. Vereb v. UCBR, 676 A.2d 1290 (Pa. Cmwlth. 1996). It is well-settled the statutory time limit for filing an appeal is mandatory in the absence of fraud or a breakdown in the administrative agency. First Nat’l Bank of Bath v. UCBR, 619 A.2d 801 (Pa. Cmwlth. 1993).

Here, the certified record lacks any indication Employer attempted to appeal the First Notice, and HR Director admitted as much. Absent an appeal, the First Notice became final and binding on the parties and, concomitantly, deprived the Service Center of jurisdiction to issue the Second Notice. Vereb; First Nat’l Bank. Thus, we discern no error in the Board’s order vacating the Second Notice. (emphasis added)

The court also rejected the Employer argument that it had submitted documents that showed an intent to appeal. First, the court noted that the documents were not part of the certified record. More important, however, the court held that even

assuming the forms evidenced Employer’s intent to challenge the Service Center’s eligibility determination, they do not negate Employer’s obligation to file an appeal of the First Notice. In First National Bank of Bath, [619 A.2d 801 (Pa. Cmwlth. 1993)], [t]his Court rejected the employer’s assertions the form [requesting relief from charges] manifested its intent to appeal. We explained that “[t]he language of [S]ection 501(e) … is both clear and mandatory. Employers have fifteen (15) days to file an appeal from a determination … or that determination ‘shall be final and compensation shall be paid or denied in accordance therewith.’ Because appeal provisions of the [Law] are mandatory, appellants carry a heavy burden to justify untimely appeals, and absent proof of fraud, cannot prevail.” 619 A.2d at 803. (First emphasis added).

Applying the above principle here, none of Employer’s forms can substitute for an appeal unless they specifically advise the Board that Employer appealed. See 34 Pa. Code §101.82(c)(1) (use of the prescribed form is not mandatory to initiate an appeal; any written notice specifically advising that the interested party is filing an appeal or requesting review of a decision is sufficient). Once again, the lack of the forms in the record prevents review to determine whether Employer specifically advised the Board it was appealing the First Notice.

admin. law - regulations - type, adoption, validity

Slippery Rock School District v. UCBR - Pennsylvania Supreme Court - November 30, 2009

http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-72-2009mo.pdf

This case concerns the adoption by the Pennsylvania Dept. of Labor and Industry (DOLI) of a UC regulation concerning benefits for teachers and other educ. employees, who are disqualified from receiving benefits if they have a "reasonable assurance" of continuing employment during the ensuing regular school period, UC Law sec. 402.1, 43 P.S. sec. 802.1.

The regulation involved established a new test of "economic equivalency" -- that there is reasonable assurance only if the "economic terms and conditions" offered for the ensuing academic period are "not substantially less that the terms and conditions of the individual's employment" prior to being laid off at the end of the first academic period. 34 Pa. Code sec. 65.161(a)

In holding that the DOLI regulation in question was valid, the court discussed several important features of state administative law concerning the types, adoption, and validity of regulations.

Pennsylvania courts have developed a two-step process for determining whether an administrative regulation is mandatory and binding. First, a court must determine what type of regulation it is examining (legislative or interpretive) and second, whether the regulation is valid.
Depending on what type it is, the regulation may be either binding (legislative) or merely entitled to deference (interpretive). Id. Generally, a legislative regulation establishes “a substantive rule creating a controlling standard of conduct.”

Legislative regulation - validity - A legislative regulation is valid if adopted pursuant to delegated legislative power, in accordance with the appropriate administrative procedure, and is reasonable. By comparison, an interpretive regulation merely construes and does not expand upon the terms of a statute.

Interpretive regulation - validity - An interpretive regulation is valid if it “genuinely track[s] the meaning of the underlying statute.” Id. If the interpretive regulation “is unwise or violative of legislative intent, courts disregard [it].” The test for determining the validity of an interpretive regulation is also applied to a regulation that establishes a substantive rule in two other circumstances: if the regulation was adopted by a Commonwealth agency without lawmaking power or if it was adopted without meeting the appropriate procedural requirements.

Scope of DOLI power and authority to adopt regulations
Under Section 201 of the Act, 43 P.S. § 761(a), the Department shall have power and authority to adopt, amend, and rescind such rules and regulations . . . as it deems necessary or suitable. Such rules and regulations shall not be inconsistent with the provisions of [the Act.]

The court rejected the school district’s argument that the Section 201(a) limitation regarding regulations inconsistent with the statute should be given the broad interpretation that the Department may not adopt any legislative regulations. Such an interpretation "leads to the absurd result that enabling statutes that do not contain the limiting language permit the adoption of regulations inconsistent with those statutes. Clearly the legislature would not authorize agencies to adopt binding regulations inconsistent with the applicable enabling statutes. . . .Indeed, all regulations, whether legislative or interpretive “must be consistent with the statute under which they were promulgated.” The sec. 201(a) limitation merely codifies this requirement by stating that only Department regulations consistent with the provisions of the Act are valid.

The court also rejected the school district’s argument that the complex nature and “detailed statutory scheme” of the UC Act suggests that the Department’s regulatory authority is limited. Indeed, the Act specifically grants the Department “power and authority to adopt, amend, and rescind such rules and regulations . . . as it deems necessary or suitable.” 43 P.S. § 761(a). If the complex nature of a statute (the Act) were a criterion for denying a Commonwealth agency (the Department) the power to promulgate legislative regulations, then the intent of the legislature that the Department adopt regulations “as it deems necessary or suitable,” as expressed by the plain language of the Act, would be thwarted. Indeed, the logical consequence of the School District’s argument is that the Department would not be able to adopt any regulations because the legislature had spoken on every issue. The rules of statutory interpretation do not permit such a conclusion.

The court also refused to consider the complexity of a statutory scheme as an element in determining the ambit of an agency’s statutory power and authority to adopt regulations where the language of the statute is clear and unambiguous in its direction that the agency may adopt such regulations.

What is a "reasonable regulation"?
In deciding whether an agency action, such as promulgation of a legislative regulation, is reasonable, a court is "not at liberty to substitute its own discretion for that of administrative officers who have kept within the bounds of their administrative powers. To show that these have been exceeded in the field of action involved, it is not enough that [the agency’s regulation] shall appear to be unwise or burdensome or inferior to another. Error or unwisdom is not equivalent to abuse. What has been ordered must appear to be so entirely at odds with fundamental principles as to be the expression of a whim rather than an exercise of judgment." Similarly, the Court has held that “appellate courts must accord deference to the agency and may only overturn an agency determination if the agency acted in bad faith or the regulations constituted a manifest or flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions.”

The regulation in question was reasonable and consistent with the UC Law as a whole and corrected an "inequity" in the UC Law
The court held that the regulation was not inconsistent with the language of the state and that it was "reasonable, because it is not so at odds with [the statute's] “fundamental principles as to be the expression of a whim rather than an exercise of judgment.”

According to the school district, the regulation conflict with the legislative intent of sec. 402.1(1) because the purpose of that section is “to eliminate the payment of benefits to school employees during summer. However, the court found that that "view fails to acknowledge that sec. 402.1(1), when read in its entirety and in the context of the Unemployment Compensation Act, offers a limited right to avoid paying unemployment benefits." [emphasis added]

It is true that "intent of the legislature in passing sec. 402.1 was to eliminate the payment of benefits to school employees during summer months and other regularly scheduled vacations, on the rationale that such employees are able to anticipate and prepare for these nonworking periods. The law thus recognizes that these employees are not truly unemployed or suffering from economic insecurity during scheduled recesses."

However, this "rationale breaks down with respect to school employees like the claimant. The decrease in her income was not caused simply by the summer vacation but by the school district’s decision to offer her a position with fewer hours, salary, and benefits. The regulation addresses the inequitable gap created for school employees like claimant when her position disappears during the second academic year and her only option is to be unemployed or accept a position with less or possibly no compensation."

The Department’s regulation thus "remedies the inequity pursuant to the stated purposes of the Unemployment Compensation Act. The first stated goal is humanitarian: to provide “[s]ecurity against unemployment and the spread of indigency.” 43 P.S. § 752 (Declaration of public policy). The Regulation extends unemployment benefits to persons who have suffered a loss of income." [emphasis added]

The Act’s second stated and equally important goal is to cooperate fully with USDOL so as “to secure to this Commonwealth and its citizens all advantages available under the provisions of the Social Security Act that relate to unemployment compensation.” 43 P.S. § 767(a)(1). As the Pa. Bulletin publication recounts, USDOL notified the Commonwealth of its failure to conform to federal law in its interpretation of “reasonable assurances.” The Department’s regulation adjusted Pennsylvania unemployment law to conform to USDOL’s requirement and, as a result, met its statutory mandate. Placed into context, the regulation is clearly consonant with Section 402.1(1) and the rest of the Act so it is therefore reasonable.

contracts - student handbook

Tran v. State System of Higher Eduction - Cmwlth. Court - December 2, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1912CD08_12-2-09.pdf

Nursing student at state university sued school for improperly dismissing her from the program, in violation of the terms set out in the student handbook.

The court held that the handbook "does not constitute a bilateral contract by which the University was bound. The cases relied upon by Petitioner...to establish the existence of such a contract involved private college students pursuing contract damages against private colleges and universities for averred violations of the disciplinary procedures in the respective student handbooks. Pennsylvania Courts have held consistently that the relationship between a student and a privately funded college is “strictly contractual in nature.” Reardon, 926 A.2d at 480; see also Barker v. Bryn Mawr College, 278 Pa. 121, 122, 122 A. 220, 221 (1923); Psi Upsilon of Philadelphia v. University of Pennsylvania, 591 A.2d 755, 758 (Pa. Super. 1991); Boehm v. University of Pennsylvania School of Veterinary 7 Medicine, 573 A.2d 575, 579 (Pa. Super. 1990); Morein v. Drexel University, 44 Pa. D. & C. 4th 13 (2000); Smith v. Gettysburg College, 22 Pa. D. & C. 3d 607 (1982); and Eter v. College Misericordia, 28 Pa. D. & C. 3d 402 (1982). (emphasis in original).

Commonwealth Court "has declined to construe the student handbook of a public university as a contract between the public university and the student. Crabtree v. California University of Pennsylvania, 606 A.2d 1239, 1240 n. 3 (Pa. Cmwlth. 1990). Accordingly, because the University is a public entity, we conclude that the Handbook did not constitute a contract between Petitioner and the University. Rather, the Handbook set forth the administrative procedures and remedies available and, if the University failed to follow those procedures and remedies, Petitioner could have, and should have, appealed the University’s determinations.

Query: What is the basis for distinguishing private v. public here?

execution - entireties property

State Farm v. Lincow - ED Pa. - December 1, 2009 (decision of magistrate judge)

http://www.paed.uscourts.gov/documents/opinions/09D1420P.pdf

The property at issue -- season tickets to the Philadelphia Eagles -- is not the sort that our clients are likely to have, but the principles involved are very important and relevant.

The creditor got a judgment against husband and began execution on Eagles season tickets. The judgment debtor moved for a determination of ownership, claiming that the tickets were entireties property belong to both him and his wife.

Under Pennsylvania law, a judgment creditor may execute on property held by husband and wife as tenants by the entireties only if both spouses are judgment debtors. Klebach v. Mellon Bank, N.A., 565 A.2d 448, 450 (Pa. Super. Ct. 1989). If only one spouse is the judgment debtor, entireties property is immune from process, execution, or sale. The judgment in this case was just against the husband and not the wife.
The issue of ownership of is a matter of contract interpretation. Under Pennsylvania law, when the intention of the parties is clear in the written contract, there is no need to resort to extrinsic evidence. Instead, the meaning of a clear and unequivocal written contract “must be determined by its contents alone.” Bohler-Uddeholm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79, 92 (3d Cir. 2001), cert. denied, 534 U.S. 1162 (2002).

However, where the contract terms are ambiguous and susceptible to more than one reasonable interpretation, the court may receive extrinsic parol evidence to resolve the ambiguity. See id at 93. A contract “will be found ambiguous if, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning.” Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 614 (3d Cir. 1995).

In this case, only the husband signed the agreement. However, he testified that was because there was only one signature line. In addition, the tickets were paid for in the past from a joint account, and both husband and wife are listed as ticket owners on several documents. The court thus found that the agreements are ambiguous concerning ownership, and the court considered parol evidence to resolve the ambiguities. That evidence strongly favored a finding that the property was held by the entireties.

In the alternative, even if the court found that the terms of the agreements were not ambiguous, and that the husband/signatory of the contracts was the sole owner, "this is not dispositive because under Pennsylvania law the intent of the husband and wife to hold property by the entireties should be given effect if the evidence supports that fact. See Plastipak Packaging, Inc. v. DePasquale, 937 A.2d 1106, 1110 (Pa. Super. Ct. 2007) (“[I]ntention is the cardinal and controlling element, and if intention that the husband and wife shall take as such, i.e., by entireties, sufficiently appears, it will be given effect.”) (citation omitted), appeal denied, 956 A.2d 436 (Pa. 2008) (Table).

In the absence of a writing executed by both spouses, property titled in one spouse’s name alone, but treated by both spouses during the marriage as property owned by the entireties, constitutes jointly held property. See Hengst v. Hengst, 420 A.2d 370, 370 (Pa. 1980) (applying this principle to a savings plan titled in husband’s name alone; property owned by the entireties where both spouses treated it as jointly held property during the marriage). See also In re Estate of Holmes, 200 A.2d 745, 747-48 (Pa. 1964) (shares of stock purchased by the husband with his own funds, but the certificates for which were issued in the name of the husband and wife, created a gift and an estate by the entireties).

Here, despite only the signature of the husband on the agreements, it is clear that wife and husband treated the Eagles tickets throughout their marriage as entireties property, and intended them to be held as such. This intent is confirmed by the listing of both their names on two separate agreements. Thus, under Pennsylvania law, the property must be considered as being held as tenants by the entireties. As entireties property, the Eagles Tickets, and license associated therewith, are exempt from execution.

UC - reasonable assurance - economic equivalency

Slippery Rock School District v. UCBR - Pa. Supreme Court - November 30, 2009

http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-72-2009mo.pdf


Former long-term substitute teacher who was offered only day-to-day position in the ensuing school year did not have "reasonable assurance" of continuing employment and was thus eligible for UC benefits when laid off from the long-term position.


Section 402.1(1) of the UC Law provides that teachers and other school employees are not entitled to receive unemployment benefits during the summer recess if they have “reasonable assurance” of returning to their job in the next academic year, 43 P.S. § 802.1(1)


The decision was based on 34 Pa. Code § 65.161, which was held to be a reasonable, valid and binding regulation, which was properly adopted, within the Department's powers, and consistent with the terms of the UC Law, sec. 402.1, 43 P.S. § 802.1(1), even though it concededly created a "new standard of conduct" -- economic equivalency.


Under sec. 65.161, there is no reasonable assurance where the "economic terms and conditions of the employment offered to the individual for the second academic period are. . . substantially less than the terms and conditions of the individual’s employment in the first academic period.... (c) For the purposes of subsection (a), economic terms and conditions of employment include wages, benefits and hours of work. "The element of 'reasonable assurance' addressed by the Regulation is known as economic equivalency."


"The Regulation addresses the inequitable gap created for school employees like [the claimant] when her position disappears during the second academic year and her only option is to be unemployed or accept a position with less or possibly no compensation.


The Department’s Regulation also remedies the inequity pursuant to the stated purposes of the UC Act. The first stated goal is humanitarian: to provide “[s]ecurity against unemployment and the spread of indigency.” 43 P.S. § 752 (Declaration of public policy). The Regulation extends unemployment benefits to persons who have suffered a loss of income."


The Act’s second stated and equally important goal is to cooperate fully with USDOL so as “to secure to this Commonwealth and its citizens all advantages available under the provisions of the Social Security Act that relate to unemployment compensation.” 43 P.S. § 767(a)(1). As the Pa. Bulletin publication recounts, USDOL notified the Commonwealth of its failure to conform to federal law in its interpretation of “reasonable assurances.” 33 Pa. Bull. 25 (January 4, 2003). The department’s regulation adjusted Pennsylvania unemployment law to conform to USDOL’s requirement and, as a result, met its statutory mandate. Placed into context, the Regulation is clearly consonant with Section 402.1(1) and the rest of the Act so it is therefore reasonable. The court held that the regulation, 34 Pa. Code § 65.151 was a "valid exercise of the Department’s power to promulgate legislative regulations."

consumer - arbitration clause

Kaneff v. Delaware Title Loan - 3d Cir. - November 24, 2009

http://www.ca3.uscourts.gov/opinarch/081007p.pdf

This case involves a personal loan for $550 on which the plaintiff's car was collateral. Over a 6-month period, plaintiff paid over $800 but still owed over more than $700 on this loan, on which the interest rate was 300%. After a series of unfortunate events, including repossession, plaintiff sued the loan company. She eventually got the car back then brought a class action under a number of consumer protection statutes.

The lower court dismissed the case and granted defendant's motion to compel arbitration, pursuant to a clause in the contract.

Here are comments about the case from plaintiff's counsel, Robert Salvin, staff attorney with Community Impact Legal Services. His brief is attached.

---

We finally have a decision in the Kaneff case, and unfortunately it is not good. The Third Circuit affirmed the district court decision enforcing the arbitration agreement. It is quite disheartening. A copy of the decision is attached. I was so much hoping that after all this time there would be a better decision than this one. The court did not find that the class action waiver was unconscionable.

The court agreed that the cost sharing provision of the arbitration agreement was unconscionable, and severed it from the agreement. That cost sharing provision, which was presumably in all of the contracts, required borrowers to pay their own fees and costs even though the applicable consumer protection statutes would allow fees and costs (including attorney's fees) to be shifted to Delaware Title Loans in a successful case. I had argued that even the presence of the clause was a problem because it was a misrepresentation to all of the consumers who signed similar contracts of their ability to obtain fees and costs in a successful arbitration and would having a chilling effect on challenges. There is not really any discussion of that argument in the decision. There is not much discussion of the exception to arbitration that allowed Delaware Title Loans to bypass arbitration and repossess borrowers' cars by self help. The court basically concludes in summary fashion that the arbitration clause is not unconscionable under Pennsylvania law.

There is one good point to the decision, which is that the court performed a choice of law analysis and did find that Pennsylvania law applied. That is a finding that supports the merits of the argument for every Pennsylvania borrower that title loans originating in Delaware are illegal in Pennsylvania. It is certainly helpful in the Salvatico case.

So the court makes a key choice of law decision that Pennsylvania law applies to the transaction despite the choice of law clause in the contract contrary, but then abandons thousands of Pennsylvanians who have borrowed money from this lender and others like it by depriving them of an effective remedy in the form of a class action.

I do not think it is clear that a Pennsylvania court would reach the same conclusion as to the class action waiver. The Third Circuit has previously indicated its rejection of the Pennsylvania Superior Court cases on class action waivers, which are favorable consumers, but a trial court in Pennsylvania would be bound by those decisions. In other words, I would suggest that a similar case could still be filed in state court against a similar entity challenging a class action waiver under the Superior Court authority, and such a case could be kept in state court if the complaint was limited to state law causes of action and contained express limitations on damages, not more than $74,999 per in person, not more than $4,999,999 in the aggregate. Food for thought. There is some possible subtlety in the decision. I suggest you take a look. I am wondering whether the court is suggesting that an arbitrator could still find that the entire contract, including the class action waiver, is unconscionable?

One might think the choice of law part of the decision would have a chilling effect on loans made to Pennsylvanians in the future, but I doubt it.

There is a limited period, ten days I suppose (but I need to check), to file for en banc review.

PFA - "family/household member" - grandfather of plaintiff's child

Slusser v. DeBoer - Superior Court - November 23, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a26039_09.pdf

PFA order properly granted PFA order to mother of defendant's grandchild. Defendant was a "family or household member" under the Act.

The court rejected grandfather's argument that his relationship to the mother of his grandchild does not fit within any of the relationships described in the definition of "abuse" -- the "occurrence of one or more...acts between family or household members, sexual or intimate partners or persons who share biological parenthood." (emphasis in original)

Both parties "have a direct blood relationship to the child, and by extension are inextricably linked to each other by that relationship. In fact, the parties are more directly related by consanguinity than the in-law relationship that was deemed adequate to invoke the protection of the Act in McCance v. McCance, 908 A.2d 905, 910 (Pa.Super. 2006) (Court interpreted “affinity” to include a family relationship of in-laws)."

----------

The abuse here consisted of defendant pulling a gun out of the glove compartment, showing it to plaintiff andt telling her that if she didn't let him see his granddaughter, she knows what he could do.

__._,_.___

child abuse - dependency - appeal - aggrieved party

In the Interest of J.G., a minor - Superior Court - November 13, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1948CD08_11-17-09.pdf

County child welfare agency (CWA) was not an "aggrived party" under PRAP 501 and did not have standing to appeal a lower court decision holding that the subject child was dependent, but failing to specify that the child's parents had committed the abuse.

CWA petitioned the court for a dependency order. It did not request a specific finding that the parents had abused the child. The lower court refused to make such a finding, given the fact that the child had been under the control of both the parents and a babysitter during the period when the abuse had taken place, thus preventing the application of the presumption in 23 Pa. C.S. 6381.

"Although a prevailing party may disagree with the trial court’s legal reasoning or findings of fact, the prevailing party’s interest is not adversely affected by the trial court’s ultimate order because the prevailing party was meritorious in the proceedings below.....Under Pa.R.A.P. 501, “[o]nly an aggrieved party can appeal from an order entered by a lower court.” ...This Court has consistently held that for purposes of Pa.R.A.P. 501, “[a] party is ‘aggrieved’ when the party has been adversely affected by the decision from which the appeal is taken. A prevailing party is not ‘aggrieved’ and therefore, does not have standing to appeal an order that has been entered in his or her favor.”

There is no statutory provision in the Child Protective Services Law or the Juvenile Act to suggest that the trial court must make a specific finding as to which caretaker perpetrated the abuse in order to adjudicate a dependent. These are two separate inquires. Where, as here, the evidence is inconclusive as to who had control or supervision over the child at the time of the abuse, the presumption in 23 Pa.C.S.A. § 6381(d) is inherently self-rebutting, and applying it to one or both persons alleged to be the perpetrators would be arbitrary and capricious in the absence of a credibility determination and a factual finding by the trial court to the contrary.

UC - referee performance - backlog

Horwitz v. Dept. of Labor and Industry - Cmwlth. Court - November 16, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/221CD09_11-16-09.pdf

UC referee's challenge to his employee performance report (EPR) rejected, holding that there was no discrimination against him based on non-merit factors.

The EPR essentially reflects the Department’s conclusion that Horwitz had an unacceptable backlog of decisions. Two standards pertinent to the present case provide as follows:

Disposal of Cases - Each referee is to schedule and dispose of an average of 30-35 appeals per week. 30-35 meets standard, more than 35 exceeds standard.
Issuance of Decisions - Federal mandates will remain the same until new mandates are promulgated in the near future. 60% of all hearings decided within 30 days, 80% of all hearings decided within 45 days are satisfactory.

In addition to the federal standards, DOLI requires that all Referees issue decisions as quickly as possible after hearings.

The opinion indicates that there were "nine complaints during the fall of 2007 from parties who had waited two to four months for decisions from Horwitz."

UC - voluntary quit - personal preference v. necessitous and compelling reason

Dopson v. UCBR - Cmwlth. Court - November 13, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1129CD09_11-13-09.pdf

Claimant requested an FMLA leave to go to South Carolina to help care for the young child of her son and daughter-in-law, who were finishing students teaching study for medical board tests, respectively. The court held that "Claimant did not quit her job to rejoin a spouse, but to temporarily relocate to assist her son and daughter-in-law. While laudable, this was her personal preference. This Court agrees with the Board that Claimant lacked a necessitous and compelling reason to terminate her employment." Hammond v. UCBR, 569 A.2d 1013 (Pa. Cmwlth. 1990),

The court distinguished decisions in Truitt v. UCBR, 527 Pa. 138, 589 A.2d 208 (1991), Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000), and Wagner v. UCBR, 965 A.2d 324 (Pa. Cmwlth. 2009).

housing - disability - reasonable accommodation

Solivan v. Valley Housing Development Corp. - ED Pa. - November 9, 2009

http://www.paed.uscourts.gov/documents/opinions/09D1355P.pdf

This case involved a plaintiff-tenant's claims against a sec. 8 landlord for, inter alia, failure to reasonably accommodate her disability in the leasing of an apartment. For the most part, the Court rejected the defendant's motion for summary judgment, as follows:

- statute of limitations - plaintiff apparently came within the two-year statute

- disability - plaintiff present sufficient evidence that she was "disabled" under the ADA, i.e., that she suffered from “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2)

- reasonable accommodation - The Court must consider: 1) whether Plaintiff’s requested accommodation/modification was necessary to afford her an equal opportunity to use and enjoy the dwelling; and 2) whether Plaintiff’s requested accommodation was reasonable, or whether it imposed an undue hardship on Defendant. To show that a requested accommodation is necessary, a plaintiff “must show that, but for the accommodation, [she] will likely be denied an equal opportunity to enjoy the housing of [her] choice.” Lapid-Laurel, LLC v. Zoning Bd. Of Adjustment of Twp. Of Scotch Plains, 284 F.3d 442, 461 (3d Cir. 2002). Here, without the accommodation of a first floor apartment, Plaintiff was required to walk up two flights of stairs in order to enter or leave her apartment, which took her 30 minutes.

- expert testimony - not required at this point - The standard for whether expert testimony is required under federal law is as follows: Expert testimony is not necessary . . . if all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation. Padillas v. Stork-Gamco, Inc., 186 F.3d 412, (3d Cir. 1999).

- money damages - Under the section of the ADA prohibiting discrimination in public accommodations, private plaintiffs may not obtain monetary damages. Preventive relief, including an injunction or restraining order, is the only remedy. 42 U.S.C. § 12188 (a)(1) (providing that “the remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter;” 42 U.S.C. § 2000a-3(a) describes preventive relief). Summary judgment on this issue to defendant.

- sec. 1983 - The private landlord was not a state actor, in spite of receipt of rent in the form of govt. subsidies. Cases considering the application of 42 U.S.C. § 1983 against housing providers who accept and even rely exclusively on Section 8 vouchers hold that such housing providers are private actors who are not acting under color of state law. Miller v. Hartwood Apartments, 689 F.2d 1239, 1242 (5th Cir. 1982); Young, supra at 366; see Morris v. Dehaan, 1991 U.S. App. Lexis 22135, *10 (6th Cir. 1991); Tosta v. Williams, 1987 WL 17233, *3 (E.D.P.A. 1987).

disability - ALJ duty to a) order consultative exams and b) to develop the record

Poleck v. Astrue - ED Pa. - November 9, 2009

http://www.paed.uscourts.gov/documents/opinions/09D1349P.pdf

The Magistrate Judge found that the ALJ failed to fully articulate his reasons for denying plaintiff's claims regarding his alleged heart impairment and carpal tunnel syndrome and recommended that these claims be remanded for further consideration by the Commissioner. Plaintiff appealed, claiming that the ALJ should have ordered second consultative examination and should have more fully developed the record. The court disagreed.

Failure to Order a Second Consultative Examination
Plaintiff claims that 20 C.F.R. § 1519a creates an independent duty on the part of the ALJ to order a second consultative examination even though plaintiff had informed the ALJ that he had medical insurance and would see his doctors for further evaluation. Plaintiff's 443). Plaintiff's reading of the regulation is incorrect.

Section 1519a states that a consultative examination may be purchased when the record as a whole is insufficient to support a decision on a claim. It then lists five situations that normally require a consultative examination.1 None of them apply in this case. Moreover, 20C.F.R. § 404.1512 states that it is the claimant’s responsibility to provide medical evidence showing the existence and scope of any impairment. This is consistent with the general principle that the claimant – not the Commissioner – has the burden of proof.

1 The five situations in which a consultative examination is required are when (1) additional evidence needed is not contained in the claimant’s medical sources, (2) evidence from the claimant’s medical source cannot be obtained for reasons beyond the claimant’s control, (3) the evidence is highly technical or highly specialized and not available from the claimant’s medical sources, (4) a conflict, inconsistency, ambiguity or insufficiency in the evidence must be resolved but cannot be by contacting the claimant’s medical source and (5) there is an indication of a change in the claimant’s condition that is likely to affect the claimant’s ability to work but the severity of the change cannot be established. 20 C.F.R. § 1519a(b)(1) - (5).

ALJ Duty to Develop the Record
Claimant argued that the 1) status of his alleged back, heart and mental impairments was unknown at the time of the hearing, 2) in such circumstances the ALJ has an affirmative duty to develop the record, 3) this duty could only be satisfied by ordering a second consultative examination, 4) the ALJ did not order such an examination and, therefore, 5) the ALJ’s decision is not supported by substantial evidence.

"This argument’s third premise is mistaken. It is important to recognize that the scope of an ALJ’s duty to independently investigate the facts is relatively narrow. In Sims v.Apfel, the Supreme Court stated that ALJs have a duty “to investigate the facts and develop the arguments both for and against granting benefits,” but this portion of his opinion was joined by only three other members of the court and is not precedential. 530 U.S. 103, 111 (2000). Although the Third Circuit has quoted this language favorably in two precedential opinions, it has never formally imposed a broad duty to investigate and develop arguments for all parties...."

The regulation describing the duties of the ALJ states, in part, that the ALJ "shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. If the ALJ believes that there is relevant and material evidence available which has not been presented at the hearing, the ALJ may adjourn the hearing or, at any time prior to the mailing of notice of the decision, reopen the hearing for the receipt of such evidence." 20 C.F.R. § 410.640 (emphasis added).

The only Third Circuit opinion directly interpreting the scope of this regulation is Hess v. Secretary, 497 F.2d 837 (3d Cir. 1974). In Hess, an ALJ denied the claimant's benefits claim without consulting his attending physician and without interviewing or examining the plaintiff. Id. at 840. The Third Circuit concluded that this was error, explaining that the claimant had the burden of proving his disability but that “due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary systemprevails.” Id.

In its application of thismore tolerant standard the Third Circuit explicitly refused to hold “that the responsibility will always be upon the hearing officer to secure current medical evaluations.” Id. at 841. Instead, it stated that “some lesser effort might be employed” and, in a non-exclusive list of examples, noted that an ALJ might advise claimants of the importance of current medical evaluations and suggest their submission at a later date. Id.

The Third Circuit explicitly refused to hold “that the responsibility will always be upon the hearing officer to secure current medical evaluations.” Id. at 841. Instead, it stated that “some lesser effort might be employed” and, in a non-exclusive list of examples, noted that an ALJ might advise claimants of the importance of current medical evaluations and suggest their submission at a later date. Id.

Here, the magistrate judge balanced plaintiff’s right to have his record developed by the ALJ with his burden to prove that he is disabled. The ALJ questioned claimant about the possibility of obtaining additional medical records. Claimant said that he had medical insurance, that he would consult his doctor, and that he would agree to any tests recommended by his doctor. His attorney said nothing to the contrary. Before this exchange, the ALJ had already agreed to leave the record open for thirty days so that claimant and his counsel could submit additional evidence. In these circumstances, the ALJ had every reason to believe that claimant would provide him with a complete record.

drivers license - refusal to take chemical test - location of request/refusal - silence

Deal v. PennDOT - Cmwtlh. Court - November 5, 2009 - unpublished memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/344CD09_11-5-09.pdf

silence - In Broadbelt v. DOT, 903 A.2d 636 (Pa. Cmwlth. 2006), our court determined that the licensee’s silence when asked to submit to chemical testing after having been read the DL-26 form, constituted a refusal in violation of Section 1547 of the Vehicle Code. This court has consistently held that “police officers are not required to spend effort either cajoling the [licensee] or spend time waiting to see if the [licensee] will ultimately change his mind.” King v. DOT, 828 A.2d 1, 5, n.8 (Pa. Cmwlth.), appeal denied, 577 Pa. 738, 848 A.2d 931 (2002)

location of request/refusal - Our Supreme Court in DOT v. Scott, 546 Pa. 241, 253, 684 A.2d 539, 545 (1996), stated that: the police must advise the motorist that in making this decision, he does not have the right to speak with counsel, or anyone else, before submitting to chemical testing, and further, if the motorist exercises his right to remain silent as a basis for refusing to submit to testing, it will be considered a refusal and he will suffer the loss of his driving privileges.

[I]t would be absurd for an officer to drive a licensee to the situs of the breath, blood or urine testing equipment, which could be miles away from the scene of arrest, in order to allow the licensee to look at the equipment prior to the licensee’s silence being considered a refusal. Requiring a police officer to drive the licensee to the situs of testing when the licensee has already been properly warned but has refused chemical testing, either explicitly or through his silence, would fail to serve the purposes of the current Implied Consent Law and would be a waste of valuable and limited police, and State Trooper, resources.

As police officers are now required to give licensees warnings prior to asking them to consent to chemical testing, and such warnings state that “remaining silent when asked to submit to chemical testing will constitute a refusal,” remaining silent will constitute a refusal, irrespective of where the licensee is at the time the warnings are given.

drivers license - refusal to take chemical test - knowing refusal - influence of prescr. drug and head injury

Sitoski v. PennDOT - Cmwlth. Court - October 29, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/431CD09_10-29-09.pdf

If a licensee takes a prescription drug, knowing its side effects, and then sustains a head injury in an accident, the licensee can establish an inability to make a knowing and conscious refusal by presenting expert medical testimony that the head injury played a greater role in the refusal than the prescription drug.

Here, the licensee presented medical testimony, but not about whether licensee’s closed-head injury played a greater role than the prescription sleep medication in his inability to make a knowing and conscious refusal. The doctor testified only that the sleep medication in combination with the closed-head injury made licensee unable to make a knowing and conscious refusal. The suspension, therfore, was proper.
__._,_.___

child abuse - expungement - founded report - finality of appeal

LC v. DPW - Cmwlth. Court - October 29, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/189CD09_10-29-09.pdf

DPW was not required to wait until appellant's criminal appeals were finally resolved to list him as an abuser in a "founded" report. Section 6303 of the Child Protective Services Law defines “founded report” as a child abuse report made pursuant to “any judicial adjudication” of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse. 23 Pa. C.S. §6303. Thus, DPW was not required to wait until L.C. exhausted his appeals to list him as an abuser in a “founded report.”

RESPA - anti-kickback provision - private right of action - no overcharge allegation requiredd

Alston et al. v. Countrywide Financial Corp. - 3d Cir. - October 28, 2009

http://www.ca3.uscourts.gov/opinarch/084334p.pdf

This is a class action brought by homebuyers who sought to recover statutory treble damages pursuant to §8(d)(2) of the Real Estate Settlement Procedures Act of 1974 (“RESPA”), 12 U.S.C. § 2607(d)(2).

Plaintiffs alleged that their private mortgage insurance premiums were channeled into an unlawful “captive reinsurance arrangement”—essentially, a kickback scheme—operated by their mortgage lender and its affiliated reinsurer, in violation of RESPA §8(a) and §8(b), 12 U.S.C. § 2607(a)-(b).*

The thrust of the complaint is that, in enacting and amending section 8, Congress bestowed upon the consumer the right to a real estate settlement free from unlawful kickbacks and unearned fees, and Countrywide’s invasion of that statutory right, even without a resultant overcharge, was an injury-in-fact for purposes of Article III standing. The District Court disagreed and dismissed the complaint without prejudice for lack of jurisdiction.

What is before us for decision turns on a question of statutory interpretation—does or does not the plain language of RESPA section 8(d)** indicate that Congress created a private right of action without requiring an overcharge allegation? We conclude that it does. Accordingly, we will reverse the Order of the District Court.

The plain language of RESPA section 8 does not require plaintiffs to allege an overcharge. The best indication of Congress’s intent in this regard is the method it prescribed for the calculation of statutory damages in [other sections of RESPA]....Critically, none of these provisions contains the word “overcharge” or otherwise implies that the plaintiff must allege that he or she paid more than he or she otherwise would have paid. See id. § 2607(a), (b), (d)(2). Instead, damages are fixed at three times the total charge paid by the consumer in exchange for a settlement service, and not merely any overcharge.

We agree with plaintiffs and the United States, intervening on plaintiffs’ behalf, that the provision of statutory damages based on the entire payment, not on an overcharge, is a certain indication that Congress did not intend to require an overcharge to recover under section 8 of RESPA.
______________
* Section 8(a) prohibits “any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.” 12 U.S.C. § 2607(a). Section 8(b) prohibits unearned fees: “No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service . . . other than for services actually performed.” Id. § 2607(b).

** Congress authorized private actions against a person who violates section 8. As amended in 1983, section 8(d)(2) provides that “[a]ny person or persons who violate the prohibition or limitations of this section shall be jointly and severally liable to the person or persons charged for the settlement service involved in the violation in an amount equal to three times the amount of any charge paid for such settlement service.” Id.