UC - quit v. discharge - imminence of discharge

Consolidation Coal Co. v. UCBR - March 15, 2010 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1583CD09_3-15-10.pdf

The court reversed the UCBR decision granting benefits to the claimant, holding that he quit to avoid the possibility of a later discharge.

Discharge imminent
Generally, where a claimant resigns in lieu of imminent discharge, the situation is considered to be a discharge. See Ford v. UCBR, 498 A.2d 449, 451 (Pa. Cmwlth. 1985) (in order for a quit to be treated as a discharge, a claimant must be “given the choice of quitting or being fired”); UCBR v. Simone, 355 A.2d 614, 615 & n.2 (Pa. Cmwlth. 1976) (Board properly considered claimant’s quit a discharge where claimant was “given the option of resigning or being discharged [and] resigned in order to avoid being fired”).

Discharge possible
However, “where an employee resigns to avoid the chance of being fired, that employee will be treated as having voluntarily quit for the purposes of determining eligibility for unemployment compensation.” Scott v. UCBR, 437 A.2d 1304, 1307 (Pa. Cmwlth. 1981) (emphasis in original). Whether a claimant was discharged or voluntarily quit is a question of law subject to this Court’s plenary review, based on the facts as found by the Board. Wise v. UCBR, 700 A.2d 1071, 1073 (Pa. Cmwlth. 1997). “In deciding whether an employee voluntarily resigned or was discharged, we must examine the facts in their totality.” Pennsylvania Liquor Control Board v. UCBR, 648 A.2d 124, 127 (Pa. Cmwlth. 1994).

In this case, it appears that Employer wished to discharge Claimant, but it is not clear that Employer could have successfully done so. “[T]he existence of a right to appeal [a] threatened discharge render[s] the prospect of discharge less than a certainty.” Hill v. UCBR, 385 A.2d 1032, 1033 (Pa. Cmwlth. 1978). See also Rosenberg v. UCBR, 560 A.2d 292, 294 (Pa. Cmwlth. 1989) (claimant voluntarily quit his employment despite his employer’s expressed desire to discharge him because he had a contractual right to continued employment).

Here, Employer wished to discharge Claimant, but Claimant only faced the possibility of discharge. Claimant, by his own admission, had a right to arbitration; he would only have lost his job if the outcome of arbitration would have been unfavorable to him. Claimant testified that he resigned to avoid the possibility that he would be discharged after arbitration and because he did not have a driver’s license.3 “[O]ne who quits his work merely to avoid the chance of being fired is not entitled to compensation.” Hill, 385 A.2d at 1033. Under these circumstances we hold that, as a matter of law, Claimant voluntarily resigned his employment without good cause to do so.4 We must, therefore, reverse the order of the Board.

welfare - tax refund intercept - distribution

Rooney v. DPW - Cmwlth. Court - February 24, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1128CD09_2-24-10.pdf


Held: Tax refund to father properly retained by the Commonwealth and applied to the amount of child support arrears owed to DPW. The refund was held to have been properly distributed according to 23 Pa. C.S. §4374. Mother's pro se challenge rejected.

FMLA - serious health condition - proof

Schaar v. Lehigh Valley Health Services - 3d Cir. - March 11, 2010


http://www.ca3.uscourts.gov/opinarch/091635p.pdf


Held: A combination of lay and expert testimony can establish that a worker has a "serious health condition" under the FMLA.


The purpose of the FMLA is “to balance the demands of the workplace with the needs of families.” 29 U.S.C. § 2601(b)(1). Accordingly, the FMLA “entitle[s] employees to take reasonable leave for medical reasons,” id. § 2601(b)(2), but they must do so “in a manner that accommodates the legitimate interests of employers.” Id. § 2601(b)(3).

An eligible employee is entitled “to a total of twelve workweeks of leave during any twelve month period” but only if the employee has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” Id. § 2612(a)(1)(D).

The FMLA defines serious health condition as “an illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider.” Id. § 2611(11). A DOL regulation further defines continuing treatment by a health care provider as a “period of incapacity . . . of more than three consecutive calendar days . . . that also involves . . . [t]reatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.”4 29 C.F.R. § 825.114(a) (2005). Incapacity means the “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.” Id.

The only issue in dispute is whether Schaar presented evidence that she was incapacitated for more than three days. The District Court held Schaar had to establish more than three days of incapacitation through medical evidence. Because Schaar presented a doctor’s note that established incapacitation for only two days and relied on her own testimony about the remaining days, the District Court granted summary judgment for Lehigh Valley.

Although we have not addressed the question presented by this appeal, other courts have adopted three approaches: (1) the evidence of incapacitation must come exclusively from a medical professional; (2) lay testimony, on its own, is sufficient; or (3) lay testimony can supplement medical professional testimony or other medical evidence. Many district courts, including those in the Third Circuit, have held that a health care provider’s professional medical opinion is the only evidence that can establish incapacity. Contrary to the aforementioned district courts, all of the circuit courts of appeals to address the question we now consider have held that lay testimony can create a genuine issue of material fact regarding incapacitation. Some of our sister circuits have held that lay testimony alone is sufficient to establish incapacitation, while others have held that lay testimony may be used to supplement medical evidence.

Because the incapacitation regulation does not require, or even mention, a health care provider determination, id. § 825.114, we find no support in the regulations to exclude categorically all lay testimony regarding the length of an employee’s incapacitation. However, we do not find lay testimony, by itself, sufficient to create a genuine issue of material fact. Some medical evidence is still necessary to show that the incapacitation was “due to” the serious health condition. 29 C.F.R. § 825. This does not place an undue burden on employees because they must present some medical evidence anyway to establish the inability to perform the functions of the position. Id. § 825.115. In contrast, allowing unsupported lay testimony would place too heavy a burden on employers to inquire into an employee’s eligibility for FMLA leave based solely on the employee’s self-diagnosed illness. For these reasons, we hold that an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony.

civil procedure - frivilous litigation - pro se plaintiff - Rule 233.1

http://www.pacourts.us/OpPosting/Supreme/out/522civ.attach.pdf - rule

Rule 233.1. Frivolous Litigation. Pro Se Plaintiff. Motion to Dismiss

(a) Upon the commencement of any action filed by a pro se plaintiff in the court of common pleas, a defendant may file a motion to dismiss the action on the basis that

(1) the pro se plaintiff is alleging the same or related claims which the pro se plaintiff raised in a prior action against the same or related defendants, and

(2) these claims have already been resolved pursuant to a written settlement agreement or a court proceeding.

(b) The court may stay the action while the motion is pending.

(c) Upon granting the motion and dismissing the action, the court may bar the pro se plaintiff from pursuing additional pro se litigation against the same or related defendants raising the same or related claims without leave of court.

(d) The court may sua sponte dismiss an action that is filed in violation of a court order entered under subdivision (c).

Note: A pro se party is not barred from raising counterclaims or claims against other parties in litigation that the pro se plaintiff did not institute.

(e) The provisions of this rule do not apply to actions under the rules of civil procedure governing family law actions

= = = = = = = = =

http://www.pacourts.us/OpPosting/Supreme/out/522civ.rpt.pdf

Explanatory Comment

It has come to the attention of the Supreme Court that certain litigants are abusing the legal system by repeatedly filing new litigation raising the same claims against the same defendant even though the claims have been previously adjudicated either through settlement or through court proceedings.

New Rule 233.1 provides relief to a defendant who has been subjected to this type of repetitive litigation.

While attorneys are subject to the rules of disciplinary procedure, no analogous rule exists to curb this type of abuse when done by a pro se party.

Upon the filing of an action by a pro se plaintiff, a defendant may file a motion to dismiss a pending action provided that (1) the pro se plaintiff is alleging the same or related claims against the same or related defendants, and (2) the claims have already been resolved pursuant to a settlement agreement or a court proceeding.

The new rule also gives the trial court discretion to bar the pro se litigant from filing further litigation against the same or related defendants raising the same or related claims without leave of court.

By the Civil Procedural Rules Committee

Stewart L. Kurtz Chair

UC - financial eligibility

Fasy v. UCBR - Cmwlth. Court - March 5, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1442CD09_3-5-10.pdf

Claimant had high quarter wages of $13,846.00 in the 4th quarter of 2008, and total base year wages of $21,515.00.

Section 401(a) of the Law provides that compensation shall be payable to any employee who is or becomes unemployed and who has, within the base year, been paid wages for employment as required by Section 404(c) of the Law.

Section 404(c) of the Law sets forth that a claimant’s financial eligibility will be determined in accordance with the table set forth in Section 404(e) of the Law. Section 404(e) of the Law provides that a claimant whose highest quarter base year wages amount to $13,846.00 can qualify for benefits at a weekly rate of $556.00 provided his total base year wages amount to at least $22,160.00.

In the present controversy, Claimant’s total base year wages amounted to $21,515.00, an amount which falls short of the qualifying $22,160.00. Therefore, Claimant must be ruled financially ineligible for benefits under Section 404(e) of the Law.

However, Section 404(a)(3) of the Law provides the following:

If the base year wages of an employe whose weekly benefit rate has been determined under clause (1) of paragraph (1) of this subsection, or redetermined under paragraph (2) of this subsection, as the case may be, are insufficient to qualify him under subsection (c) of this section but are sufficient to qualify him for any one of the next three lower weekly benefit rates, his weekly benefit rate shall be redetermined at the highest of such next lower rates.

The third lowest weekly benefit rate requires total base year wages of $22,040.00. As stated previously, Claimant’s total base year wages amounted to $21,515.00, which is less than the third lowest weekly benefit rate required. Therefore, Claimant is financially ineligible for benefits under Section 404(a)(3) of the Law and the Board and referee did not err in so determining.

In Martin v. UCBR, 502 Pa. 282, 466 A.2d 107 (1983), the Supreme Court determined that the statutory scheme used to determine the level of monetary earnings qualifying a worker for unemployment compensation benefits under Section 404(a) of the Law, did not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Thus, the Board, in the present controversy, did not violate Claimant’s constitutional rights.

admin. law - credibility - does not depend on # of witnesses

Affordable Comfort Contracting, Inc. v. UCBR - Cmwlth. Court - February 18, 2010 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/944CD09_2-18-10.pdf

When an employer trots out a whole bunch of witnesses at a UC hearing, with just the claimant on the other side, remind the referee of the quote from the Supreme Court cited in this case.

The facts that [Employer] produced a greater number of witnesses, and that they assert that their witnesses were more credible, are not paramount. Evidence offered by the claimants was not rendered insubstantial by the mere fact that it was contradicted by evidence introduced by [Employer]. Hence, the court below properly determined that the. . . testimony adduced by the claimants provided the requisite basis for the referees' findings.

Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 531 Pa. 287, 393, 612 A.2d 434, 437 (1992).

tax sale - notice - rescheduled sale - statutory and due process rights

In re Upset Sale Tax Claim - Appeal of David Keller - Commonwealth Court - March 2, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1373CD09_3-2-10.pdf


The court rejected the appeal of the purchaser of real property at an upset tax sale, who claimed that the property owner received sufficient knowledge of the original and rescheduled sales. The court held that the property owner had not received the notice required by the relevant statutes, and that the tax bureau violated the lower court's order concerning notice of the rescheduled sale, in volation of the property owner's due process rights.


In cases where a final, rescheduled sale takes place within the same calendar year as the date for which it was originally scheduled, no additional notice of a rescheduled sale is required, as set out in 72 P.S. §5860.601(a), provided that there there is proper notice of the original sale. Appeal of Manor Investments, Ltd., 640 A.2d 946 (Pa. Cmwlth. 1994); Sale of Property of Dalessio, 657 A.2d 1386 (Pa. Cmwlth. 1995)


Here, notice of the original sale "was given by several methods, but not all methods required by law," 72 P.S. §§5860.601(a). Thus, even though "there was some notice for the [original] sale, and some other notice for the [rescheduled] sale,. . . no sale satisfied all the statutory requirements. A valid tax sale depends on strict compliance with the three notice requirements in Section 602 of the Law: publication, certified mail and posting. Fernandez v. Tax Claim Bureau, 925 A.2d 207 (Pa. Cmwlth. 2007). The Bureau bears the burden of proving it complied with these notice requirements. Id. The Bureau failed to carry its burden in this case."


In addition, the court stated (in n. 5) that the trial court’s orders rescheduling the tax sale provided that the local tax bureau was "directed to take the requisite steps to provide adequate notice of the rescheduled sale date” but that it failed to do so. Thus, the "Bureau violated the court order upon which it claims the authority to effectuate the [final] tax sale. This constitutes a violation of Owner’s due process rights. See Jones v. Flowers, 547 U.S. 220 (2006) (before a government can force a citizen to satisfy his tax debt by forfeiting his property, due process requires the government provide adequate notice of the impending taking).


--------------------------------


Note: The court's statement in n. 5 above under the decision of the Superior Court in Dewey v. LaSalle Bank Natl. Assn., a case which David Hull and Kevin Quisenberry litigated, which also involved inadequate notice of a rescheduled sale. The gist of their argument concerns Pa. R.C.P. 3129. The Supreme Court denied their petition for allowance of appeal, but the instant decision may help in future cases.

consumer - Debt Management Services Act - constitutionality

US Organizations for Bankruptcy Alternatives v. Dept. of Banking - Cmwlth. Court - February 25, 2010 (2-1 decision)


http://www.pacourts.us/OpPosting/Cwealth/out/69MD09_2-25-10.pdf


A 3-judge panel of the Commonwealth Court held that sections of the Debt Management Services Act, Act of October 9, 2008, P.L. 1421, 63 P.S. §§ 2401 – 2449 were facially unconstitutional. The DMSA (Act 117), grants the Department of Banking broad powers to regulate both debt settlement services (DSS) Providers and providers of debt management services (DMS Providers).


Regulation of conduct
Because we have held, Association of Settlement Companies v. Department of Banking, 977 A.2d 1257, 1262-63 (Pa. Cmwlth. 2009), that the Department lacks the authority to promulgate regulations affecting DSS Providers, we must declare the Section 3(b) requirement that DSS Providers operate “in accordance with regulations promulgated by the department regarding the conduct of debt settlement services,” 63 P.S. § 2403(b), unconstitutional and unenforceable.


Regulation of fees
Similarly, in Association of Settlement Companies, this Court held that Act 117, Section 15(h) of Act 117, 63 P.S. § 2415(h), provided no standards or restraints on its grant of authority to the Department to set and regulate the fees that DSS Providers may charge. Id., 977 A.2d at 1269- 70.


Licensing
However, with regard to the licensing of DSS Providers, i“Act 117 contains adequate policy choices with regard to the licensing of DSS Providers and contains sufficient standards to guide and restrain the Department in carrying out these policy choices.” Id., 977 A.2d at 1265. Therefore, we do not have, at this stage in the litigation, any basis upon which to declare the remainder of Act 117 unconstitutional. We, therefore, grant USOBA’s Application only in part, as discussed above, and deny it in part.

UC - after-discovered evidence

Mansour v. UCBR - Cmwlth Court - February 25, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1221CD09_2-25-10.pdf


Employer did not become aware of Claimant’s fabrication of the facts concerning a fire at work until after Employer terminated Claimant. The Board, however, relied on this fabrication when it determined that Claimant committed willful misconduct.

In PrimePay, LLC v. UCBR, 962 A.2d 684 (Pa. Cmwlth. 2008), this Court held that an employer satisfies its burden of proving willful misconduct by evidence discovered after the termination of the employee if it establishes that the willful misconduct was concealed and it would have terminated the employee had it been aware of the concealed misconduct.

Astrue v. Ratliff: Who Owns Court Awarded Attorney's Fees?

The United States Supreme Court heard oral argument in the case of Astrue v. Ratliff on February 22, 2010.

In this case, the Social Security Administration argued that an award of fees and other expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), is payable to the prevailing party in Social Security cases and that an award of such attorneys’ fees is subject to an administrative offset to satisfy the prevailing party’s debt, if any, to the United States.

The SSA Claimant countered that because the award belongs to the party’s attorney and not to the party itself, the award of attorneys’ fees cannot be subject to an offset for a debt that is not his or her own.

The result in this case will have a serious impact on the ability of low-income claimants to retain counsel in cases before the Social Security Administration that are subject to the Equal Access to Justice Act.

A full summary of the case and the arguments of the respective parties has been compiled by the Legal Information Institute at the Cornell Law School. That summary can be viewed at THIS LINK.

admin. law - appeal - preservation of issues - claim that hearing was unfair

Atwell v. UCBR - Cmwlth. Court - February 17, 2009 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1030CD09_2-17-10.pdf


The fairness of a hearing is a matter of a constitutional dimension that can be raised for the first time in an appeal to this Court. See Felici v. UCBR, 444 A.2d 843 (Pa. Cmwlth. 1982) (holding that claimant’s challenge to the fairness of his hearing may be raised by the claimant for the first time in his brief to this Court).


Claimant was thus allowed to present his argument that the Referee did not ask him if he waived his right to counsel at the hearing and did not provide him with assistance in cross-examining witnesses, 34 Pa. Code sec. 101.21(a), even though he did not raise the issue before the UCBR.

admin. law - hearsay - due process

Speight v. Dept. of Corrections - Cmwlth. Court - February 16, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/663CD09_2-16-10.pdf


This case involves proof of the DOC's costs for medical treatment, which it sought to be placed on Speight, the prisoner-petitioner.


Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Bonegre v. Workers’ Compensation Appeal Board (Bertolini’s), 863 A.2d 68 (Pa. Cmwlth. 2004).


In an administrative hearing, hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding but only if competent evidence of record corroborates it. Walker v. UCBR, 367 A.2d 366 (Pa. Cmwlth. 1976).3

While [the petitioner] did not object to the admission of the medical bills, the Department, despite citing to Walker, has failed to cite anywhere in the record where those bills were corroborated by any competent evidence. In this case, all that [the DOC witness] did was go over each invoice and state the amount on the invoice. In the case of the invoice from the hospital where there were itemized amounts, she indicated what each amount was for. The other two invoices merely had a total due. She could not identify who created the document and who redacted the information pertaining to the phone numbers and addresses.

Because this Court has previously held that corroboration of the unobjected-to document is required, see Lee v. Pennsylvania Board of Probation and Parole, 885 A.2d 634 (Pa. Cmwlth. 2005), and there was no corroboration in this case, there was a violation of the hearsay rule.

3 The Walker Rule is not truly a rule of evidence but based on the principle that fundamental due process requires that no adjudication be based solely upon hearsay evidence. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172, 175 (1990) (quoting with approval Justice Flaherty’s concurring opinion in UCBR v. Ceja, 493 Pa. 588, 427 A.2d 631, 643 (1981)).

admin. law - petition for review - record - newly-discovered evidence

Grever v. UCBR - Cmwlth. Coourt - February 16, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1008CD09_2-16-10.pdf


The Commonwealth Court refused the claimant's request to take judicial notice of a pleading in a related case (before the Human Relations Commn.) where


- the pleading came into being after the the UC referee decision but before the UCBR decision
- the claimant did not ask the UCBR for permission to submit newly-discovered evidence
- the claimant appealed to Cmwlth. Court and attached the pleading to the Petition for Review
- claimant did not ask the court to take judicial notice of the document


The Commonwealth Court, when reviewing matters in its appellate capacity, is bound by the facts certified in the record on appeal. Cambria County Mental Health/Mental Retardation v. State Civil Service Commission, 756 A.2d 103, 106 (Pa. Cmwlth. 2000).

Although a court “may take judicial notice of filings or developments in related proceedings which take place after the judgment appealed from.” See Werner v. Werner, 267 F.3d 288, 295 (3d Cir. 2001), issues not raised at the earliest possible time during a proceeding are waived. Dehus v. UCBR, 545 A.2d 434 (Pa. Cmwlth. 1988).

The Claimant here, although able to do so, failed to present the documents prior to the Board issuing its decision. Allowing Claimant to present the documents now would usurp the Board’s role as the fact-finder and arbiter of credibility. Thus, judicial notice will not be taken of records which were available to Claimant prior to but presented after the Board’s decision was issued.

LIHEAP - sec. 8 - rent included heat - rent as fixed % of income

Sweetman v. DPW - December 15, 2009 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/786CD09_12-15-09.pdf


Applicant found to be not eligible for LIHEAP under 55 Pa. Code § 601.31(2)(i)(B), which provides that renters whose heating cost is included as an undesignated portion of rent and whose rent is based on a fixed income percentage are ineligible for LIHEAP benefits.

If the applicant directly paid a vendor for the main source of his heat or paid indirectly for heat, but not as a fixed percentage of his income, he would be eligible for LIHEAP cash benefits. In the present matter, Petitioner does not pay directly for his heat, but pays for his heat as part of his rent, which is a fixed percentage of his income.


Applicant testified and argued that his landlord did not provide sufficient heat and that he had to use electric space heaters to supplement the primary heat, which was natural gas. Although the applicant argued that his space heaters are the “main” source of heat, sec. 601.3 of the regulations provides that the “main” fuel type is the source of energy for the central heating system of the residence, or if the residence is not centrally heated, the source of energy used most by the household. 55 Pa. Code § 601.3.

DPW found that the main fuel type is natural gas and that applicant did not establish that electricity, as the source used to supply space heaters, is the “main” fuel type for applicant's home. "Therefore, we cannot say that DPW/BHA or the ALJ erred in concluding that Petitioner was ineligible for LIHEAP benefits."

procedure - standing - mootness

Finn v. Rendell - Commonwealth Court - February 2, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/505MD09_2-9-10.pdf

County sued the governor, general assembly, and state treasurer for reimbursement for percentage of country DA's salary, which state was to pay under the county code, 16 P.S. § 1401(p).

standing - The court held that the county had standing to bring the action. "One seeking judicial resolution of a dispute must satisfy a threshold requirement of standing to bring the action by demonstrating a substantial, direct and immediate interest in the outcome of the litigation. Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 888 A.2d 655 (2005). A substantial interest is an interest exceeding the interest of all citizens in procuring obedience to the law; an interest is direct if there is a causal connection between the asserted violation and the harm complained of; an interest is immediate if the causal connection is neither remote nor speculative. City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A.2d 566 (2003)."

mootness - The court held that the case was not moot. "Under the mootness doctrine, an actual case or controversy must exist at all stages of review, not just when the complaint is filed. Pub. Defender's Office of Venango County v. Venango County Court of Common Pleas, 586 Pa. 317, 893 A.2d 1275 (2006); Harris v. Rendell, 982 A.2d 1030 (Pa. Cmwlth. 2009). The existence of a case or controversy requires "a real and not a hypothetical legal controversy and one that affects another in a concrete manner so as to provide a factual predicate for reasoned adjudication …." City of Philadelphia v. SEPTA, 937 A.2d 1176, 1179 (Pa. Cmwlth. 2007)."

consumer - payday loans - arbitration agreement

Clerk, et al. v. Ace Cash Express, Inc. - ED Pa. - January 29, 2010

http://www.paed.uscourts.gov/documents/opinions/10D0111P.pdf

The court grant the motion to compel arbutration of Defendant ACE Cash Express, Inc. (“ACE”), in an action based on payday loans, a form of consumer lending involving short-term loans secured by excessively high interest rates

Plaintiffs alleged violations of the Pennsylvania Consumer Discount Company Act, 7 P.S. § 6201 et seq., the Pennsylvania Loan Interest and Protection Law, 41 P.S. § 101 et seq., and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq.

The payday loan agreement contained an arbitration clause, which stated that the agreement covered “all federal or state law claims, disputes or controversies, arising from or relating directly or indirectly to the Loan Agreement,” as well as “all claims based upon a violation of any state or federal constitution, statute or regulation," and that it was to be interpreted under Delaware law.

The court held that, under the Third Circuit’s holding in Kaneff v. Delaware Title Loans, Inc., 587 F.3d 616, 620 (3d Cir. 2009), applying Delaware law to the Arbitration Agreement would be contrary to a fundamental policy of Pennsylvania, and that Pennsylvania has a materially greater interest than Delaware, the state chosen in the Arbitration Agreement, and that it would thusl apply Pennsylvania law when determining whether the Arbitration Agreement is unconscionable.

However, the court found that the agreement was not procedurally unconscionable under Pennsylvnia law and was thus enforceable.

custody - jurisdiction - UCCJEA - inconvenient forum

A.D. v. M.A.B - Superior Court - February 1, 2010

http://www.pacourts.us/OpPosting/Superior/out/S75045_09.pdf

M.A.B. (“Father”) appeals from the order entered in the Philadelphia County Court of Common Pleas, which declined jurisdiction in this child custody matter in favor of the courts of the State of Michigan upon reconsideration of the trial court’s order of February 23, 2009, as requested by A.D. (“Mother”). We hold that the trial court considered and properly weighed all the relevant factors for inconvenient forums pursuant to 23 Pa.C.S. § 5427. Accordingly, we affirm.

__._,_.___

social security - atty. fees - sentence four remand - filing deadline

Walker v. Astrue - 3d Cir. - February 2, 2010

http://www.ca3.uscourts.gov/opinarch/081446p.pdf

This case presents a question of first impression in the Third Circuit and one that has divided our sister courts of appeals: what filing deadline under the Federal Rules of Civil Procedure governs a petition for attorney fees under Section 406(b) of the Social Security Act when a case is remanded under sentence four of Section 405(g) for a determination of benefits?

The Fifth and Eleventh Circuits have held that Rule 54(d)(2)’s fourteen-day filing deadline applies, see Bergen v. Barnhart, 454 F.3d 1273, 1277 (11th Cir. 2006); Pierce v. Barnhart, 440 F.3d 657, 663 (5th Cir. 2006), while the Tenth Circuit uses the more amorphous “reasonable time” standard under Rule 60(b), see McGraw v. Barnhart, 450 F.3d 493, 505 (10th Cir. 2006).

The District Court sua sponte dismissed Counsel’s petitions, holding that, under either rule, Counsel’s request was untimely.

We now join the Fifth and Eleventh Circuits in holding that Rule 54(d)(2) is the appropriate standard, subject to tolling until counsel’s notification of an award of benefits on remand. Accordingly, we will reverse the District Court’s dismissal and remand to give Counsel an opportunity to present evidence of his notification of the award.

I.

__._,_.___

stalking; PFA contempt

Commonwealth v. Abed - Superior Court - January 29, 2010

http://www.pacourts.us/OpPosting/Superior/out/A32014_09.pdf

Defendant's conviction for stalking under 18 Pa.C.S.A. § 2709.1 and contempt under a PFA order upheld on appeal.

Defendant's many "lewd and obscene texts, calls, flyers, and letters that accused Complainant of having an infectious disease are clearly encompassed in the statutory language [defining stalking]. Appellant’s assertion that proof of physical contact is necessary to convict him of stalking directly conflicts with Commonwealth v. Miller, 689 A.2d 238, 240 (Pa. Super. 1997), in which this Court rejected as “ludicrous” a similar argument that the defendant could not be convicted of stalking when he did not cause physical harm or attempt harm to his victim.

This Court found the “intent to place one in fear of bodily injury is but one mens rea that will sustain a conviction under § 2709(a) and (b)… as a conviction may be upheld upon a showing that the accused intended to harass, annoy, alarm or cause substantial emotional distress.”

disability - duty of ALJ to develop record - pro se claimant - mental health issues

Comiskey v. Astrue - ED Pa. - January 2010

http://www.paed.uscourts.gov/documents/opinions/10D0088P.pdf

This case was remanded, consistent with Magis. Judge's recommendation, for further development of the record.

The Third Circuit repeatedly has recognized that an ALJ must “assume a more active role when the claimant is unrepresented.” Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979); see also Reefer, 326 F.3d at 380; Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980). An ALJ “owes a duty to a pro se claimant to help him or her develop the administrative record.” Reefer, 326 F.3d at 380; see also Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995) (“ALJs have a duty to develop a full and fair record in social security cases.”). In particular, “‘[w]hen a claimant appears at a hearing without counsel, the ALJ must scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.’” Reefer, 326 F.3d at 380 (quoting Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (internal citation and quotation marks omitted)); see also Ventura, 55 F.3d at 902 (“[A]n ALJ must secure relevant information regarding a claimant’s entitlement to social security benefits.”). Although lack of counsel alone is not cause for remand when the claimant knowingly has waived the right to counsel, remand is appropriate when the lack of counsel prejudices the claimant or causes unfairness at administrative level, such as when the ALJ fails to adequately develop the administrative record. Livingston, 614 F.2d at 345.

The court was especially troubled by the lack of any "indication that the ALJ made any effort to obtain plaintiff’s medical records from any of the treating sources he identified. The need for such information was particularly important given the conflicting opinion evidence in the record regarding the extent to which plaintiff’s medical and physical impairments limited his ability to work.

Although the Third Circuit has declined to “say that an [ALJ] must search out all the relevant evidence which might be available,” Hess v. Sec’y of Health, Educ. & Welfare, 497 F.2d 837, 840 (3d Cir. 1974), in the circumstances presented here [where the claimant had a mental impairment] the ALJ should have obtained medical records from plaintiff’s treating sources as part of his obligation to help the pro se plaintiff develop the administrative record. See Reefer, 326 F.3d at 380 (stroke pro se claimant); Isaac v. Astrue, No. 08-1661, 2009 WL 1492277, at *13 (W.D. Pa. May 28, 2009); Sloss v. Astrue, No. 07-344, 2008 WL 2355853, at *2 (W.D. Pa. June 9, 2008)

In addition to the heightened duty of care an ALJ owes when the claimant is unrepresented, the ALJ is also obliged, under the applicable regulations, to ensure that the claimant’s complete medical history is developed for at least the twelve months preceding the month in which the claimant filed his application. 20 C.F.R. §§ 404.1512(d), 416.912 (d); see also 42 U.S.C. § 423(d)(5)(B).16 Thus, at a minimum, the ALJ should have obtained plaintiff’s medical records from those medical sources from which plaintiff received treatment in the twelve months prior to October 2006, when plaintiff filed his applications for DIB and SSI.

While the ALJ’s failure to develop the record must have prejudiced the claimant in order for remand to be appropriate, see Livingston, 614 F.3d at 345, the Third Circuit has not required the claimant to produce the very records to be considered in order to show prejudice, see Reefer, 326 F.3d at 380...; Dobrowolsky, 606 F.2d at 407-08...; Jozefick v. Shalala, 854 F. Supp. 342, 349 (M.D. Pa. 1994) (noting that the Third Circuit has remanded cases “in order to more fully develop the record without requiring the claimant to make a specific proffer of the evidence that would be presented to the ALJ on remand”). Rather, remand is appropriate when the ALJ “has failed to exercise his authority to attempt to fill significant evidentiary gaps that are material to the disability determination.” Id.

wages - FLSA - overtime - professional capacity

Pignataro v. Port Authority of NY and NJ - Third Circuit - January 27, 2010

http://www.ca3.uscourts.gov/opinarch/083605p.pdf

This case concerns helicopter pilots, not likely to be our clients, but it cites important general principles of FLSA law.

Helicopter pilots were held to be not exempt as “professional” employees under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(a)(1), and therefore are entitled to mandatory time-and-a-half overtime compensation. The court award them two years of damages rather than three, because it concluded that the employer's FLSA violation was not willful.

The FLSA mandates that if an employee works more than forty hours per week, he must be compensated for overtime hours at a rate at least one-and-one-half times the employee’s regular rate. 29 U.S.C. § 207(a)(1). Employees who work in a “professional capacity,” however, are exempt from this rule.

Exemptions from the FLSA are to be narrowly construed against the employer, and the employer has the burden of establishing an exemption. Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1143 (3d Cir. 1983). Whether an employee is an exempt professional is a mixed question of law and fact.

To establish that the employer's violation of the FLSA was willful, plaintiffs must prove that the employer knew it was violating the FLSA or acted in reckless disregard of whether it was violating the FLSA. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 135 (1988). Whether a violation of the FLSA is willful is a question of fact that is reviewed for clear error. See Bianchi Trison Corp. v. Chao, 409 F.3d 196, 208 (3d Cir. 2005).

UC - willful misconduct - remoteness doctrine

Rich Carbide Burs, Inc. v. UCBR - Cmwlth Court - January 22, 2010 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/520CD09_1-22-10.pdf

The employer did not violate the remoteness doctrine by waiting from Thursday to the next Tuesday to fire the claimant for misconduct, because there was no substantial delay between the alleged act and the termination.

Where “there is an unexplained substantial delay between the claimant’s misconduct and the employer’s act to terminate the claimant, the remoteness doctrine will preclude an employer from seeking a denial of benefits based on allegations of willful misconduct.” Raimondi v. Unemployment Compensation Board of Review, 863 A.2d 1242, 1247 (Pa. Cmwlth. 2004) (emphasis in original). In the case at bar, the three-day delay between the altercation and Claimant’s discharge was, by any measure, insubstantial.

custody - homosexual parents - Constant A. overruled - shared custody - school-age children

M.A.T v. G.S.T - Superior Court - January 21, 2010

http://www.pacourts.us/OpPosting/Superior/out/e03008_09.pdf

Appellant M.A.T. (“Mother”) appeals the trial court’s order dated August 11, 2008 denying her petition for modification of a custody order granting Appellee G.S.T. (“Father”) primary physical custody of their daughter K.J.T. (“Daughter”).

The trial court based its decision on (1) its application of an evidentiary presumption against a homosexual parent, see, e.g., Constant A. v. Paul C.A., 496 A.2d 1 (Pa. Super. 1985); and (2) rejection of uncontroverted expert testimony recommending shared custody.

For the reasons set forth herein, we reverse the trial court’s order and grant Mother’s petition for modification of the custody order. In doing so, we overrule the holding and reasoning in Constant.

We further rule that the trial court in this case abused its discretion in rejecting the recommendations of the jointly retained custody evaluator and basing its decision to award primary physical custody to Father upon the trial court’s personal opinion that shared custody is seldom (if ever) in the best interests of school-age children.

Accordingly, we vacate the trial court’s order dated August 11, 2008 and remand for entry of an order consistent with this opinion.

Authenticating Web Pages as Evidence

An informative article entitled Authenticating Web Pages as Evidence, has been published in the Law Technology News section of law.com.

The article addresses the issue of how to authenticate evidence of something published on the Internet, typically in the form of a screen shot or PDF copy of a web page. it discusses authentication under the Federal Rules of Evidence, the use of the Internet Archive, and the issue of judicial notice of information on web sites.

The article was authored by M. Anderson Berry and David Kiernan. David C. Kiernan is a litigator in the Trial Practice Group of Jones Day in its San Francisco Office and is a member of the firm's E-discovery Committee. M. Anderson Berry is also an attorney in the same office.

mandamus

Petsinger v. OVR - Cmwlth. Court - January 21, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/263MD09_1-21-10.pdf


Petitioner brought mandamus action against the Office of Vocational Rehabilitation concerning his termination from employment following his threats against a fellow employee. The court held that mandamus would not lie.


The Civil Service Act, the federal Rehab Act, and the PA Rehab Act provided petitioner with adequate statutory and administrative remedies to seek redress for OVR’s alleged discriminatory treatment in his employment, his termination from that employment, his request to be reinstated or returned to his former civil service position, as well as OVR’s denial of his repeated requests to reopen his application for vocational rehabilitation services. Therefore, he is barred from raising these issues by petition for mandamus.

A writ of mandamus is an extraordinary remedy which compels the official performance of a ministerial act or a mandatory duty only where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a lack of any other appropriate or adequate remedy. McGill v. Dep’t of Health, Office of Drug & Alcohol Programs, 758 A.2d 268 (Pa. Cmwlth. 2000).

“Thus, in an action involving an administrative agency’s exercise of discretion, the court may only direct the agency to perform the discretionary act and may not direct the agency to exercise its judgment or discretion in a particular way or direct the retraction or reversal of action already taken.” Id. at 270. “The purpose of mandamus is not to establish legal rights, but to enforce those rights already established beyond peradventure.” Id.

A party challenging administrative decision-making who has not exhausted available administrative remedies is precluded from obtaining judicial review by mandamus6 or otherwise. Matesic v. Maleski, 624 A.2d 776 (Pa. Cmwlth. 1993). The availability of adequate, meaningful administrative remedies is a bar to a mandamus action. Mueller v. Pa. State Police Headquarters, 532 A.2d 900 (Pa. Cmwlth. 1987). In addition, an individual who allows his statutory appeal rights to expire cannot at a later date reclaim those appeal rights under the guise of a petition for mandamus. Lizzi v. Unemployment Comp. Bd. of Review, 466 Pa. 450, 353 A.2d 440 (1976).

disability - attorney fees - reasons for rejection of evidence - clearly established precedent

Kutoloski v. Astrue - ED Pa. - Janaury 2010

http://www.paed.uscourts.gov/documents/opinions/10D0062P.pdf

The ALJ's failure to explain his consideration of the testimony of the claimant's parents, after being directed to do so on remand, was contrary to clearly established precedent.

“[T]he burden is on the government to demonstrate that its position was ‘substantially justified.’” Watkins v. Harris, 556 F. Supp. 493, 498 (E.D. Pa. 1983). Specifically, the commissioner must show that its position has “a reasonable basis in both law and fact.” Pierce v. Underwood, 487 U.S. 552, 555 (1988).

Thus, “[w]hen the government’s legal position clearly offends established precedent . . . its position cannot said to be ‘substantially justified.’” Washington v. Heckler, 756 F.2d 959, 962 (3d Cir. 1985).

For this purpose, the government’s position includes “not only its litigation position but also the agency position that made the lawsuit necessary.” Id. at 961.

The commissioner has not met his burden. All of the commissioner’s arguments, in fact, fail for the same reason: The ALJ’s failure to explain his treatment of the testimony of plaintiff’s parents was contrary to established Third Circuit precedent. Although the ALJ recite[d] the testimony of plaintiff’s parents, the ALJ fail[ed] to properly explain his consideration of that testimony....

This failure violated the Third Circuit’s directive in Burnett v. Commissioner of Social Security Administration, 220 F.3d 112 (3d Cir. 2000), that the ALJ “must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence,” id. at 121 (emphasis added) – a requirement that exists because “‘[i]n the absence of such indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored,’” id. (quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).

In other words, the ALJ’s failure to explain his disregard of the testimony proffered by plaintiffs’ parents “clearly offends established precedent.” It therefore has no reasonable basis in law.

__._,_.___

UC - voluntary quit - sexual harassment

Miscoe Chiropratic Clinic v. UCBR - January 13, 2010 - unpublished memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1050CD09_1-13-10.pdf

The court rejected the employer's appeal and upheld the UCBR decision that claimant had good cause to quit her job because of sexual harassment by her employer, himself.

The court said that "[i]In order to establish a necessitous and compelling cause to leave employment, a claimant must establish that circumstances that produced real and substantial pressure to terminate employment existed; a reasonable person would act in the same manner; she acted with common sense; and she made a reasonable effort to preserve her employment. First Fed. Sav. Bank v. UCBR, 957 A.2d 811 (Pa. Cmwlth. 2008).

Sexual harassment may constitute a necessitous and compelling reason to voluntarily leave employment if the claimant can show that she acted with common sense and prudence to alleviate the sexual harassment. Hussey Copper Ltd. v. UCBR, 718 A.2d 894 (Pa. Cmwlth. 1998). Such common sense action includes providing the employer an opportunity to understand the nature of a claimant’s objections and to take steps to resolve those objections. Collier Stone Co. v. UCBR, 876 A.2d 481 (Pa. Cmwlth. 2005).

Where a mechanism, such as an employment policy, exists to deal with problems of sexual harassment, a claimant must make a good faith effort to utilize that mechanism. Hussey Copper Ltd. However, a claimant is not required to perform a futile act. Mauro v. UCBR, 751 A.2d 276 (Pa. Cmwlth. 2000). Further, where a claimant’s supervisor has knowledge of harassment against a claimant, the employer is deemed to have the knowledge as well, and the claimant is not required to report the harassment to higher levels of management. Peddicord v. UCBR, 647 A.2d 295 (Pa. Cmwlth. 1994).

Ultimately, the employer is responsible for eliminating harassment in the workplace. Collier Stone Co. We agree with the Board that Claimant would have committed a futile act by reporting the harassment to the office manager or Dr. Miscoe. It is undisputed that Dr. Miscoe is in charge of Employer’s office and is the only person in the office with the authority to terminate an employee. As the Board found, Dr. Miscoe grabbed and hugged Claimant, attempted to kiss her several times a week, and made inappropriate sexual comments to her. Claimant had no obligation to report the harassment to the office manager or Dr. Miscoe because the facts found by the Board establish that such report would have been futile. Accordingly, we affirm the Board’s order.