consumer - no govt/sovereign immunity under state consumer protection law

Myer, D., et al., etc. v. Community College of Beaver County, Nos. 20-21 WAP 2009
Opinion By: Saylor, Thomas G.
Posted By: W.D. Prothonotary
	Date Rendered: 8/17/2010
	Date Posted: 8/17/2010
	Opinion Type: Majority Opinion	J-22A&B-2010mo.pdf
	Date Rendered: 8/17/2010
	Date Posted: 8/17/2010
	Opinion Type: Concurring Opinion	J22AB-2010co.pdf

Reversing the Commonwealth Court, 965 A.2d 406, 968 A.2d. 235 (Cmwlth. 1009), the Supreme Court held that claims against a government entity under the state consumer protection law, 73 P.S. sec, 201-1 et seq., were not barried by sovergeign/governmental immunity.


The court agreed with the plaintiff/appellants "that the approach taken by the Commonwealth Court is not sustainable. As Appellants ably explain, the language of the statute conferring governmental immunity, and of that implementing the exceptions, pertains to conduct causing 'injury to a person or property.' 42 Pa.C.S. §§ 8541, 8542. The Commonwealth Court previously has recognized that these terms reflect the main policy consideration historically underlying tort law, whereas, the central focus of contract law is the protection of bargained-for expectations. See Hazelton Area Sch. Dist. v. Bosak, 671 A.2d 277, 282-83 (Pa. Cmwlth. 1996). . . .In line with the extant understanding of the Political Subdivision Tort Claims Act, we believe the Legislature centered the immunity there conferred on “injury to a person or property” as a reflection of traditional tort jurisprudence. . . .

civil services - removal - just cause

State Board of Probation and Parole v. State Civil Service Commission (Manson)

Commonwealth Court - August 18, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1958CD09_8-18-10.pdf


The court affirmed the Commission's decision that the employer Board did not meet its burden of proving just cause for the employee's removal pursuant to section 807 of the Civil Service Act, 71 P.S. §741.807, but did establish just cause for Manson’s suspension under section 803 of the Act, 71 P.S. §741.803. The case involved a missing firearm and an alleged improper relationship with a parolee under Board supervision.

In an appeal challenging the removal of a regular status employee, the appointing authority has the burden of establishing just cause for the personnel action. Mihok v. DPW, 607 A.2d 846 (Pa. Cmwlth. 1992).

To show just cause for the removal of a regular status civil service employee, the appointing authority must demonstrate that the actions resulting in the removal are related to an employee’s job performance and touch in some rational and logical manner upon the employee’s competence and ability. Ellerbee-Pryer v. State Civil Service Commission, 803 A.2d 249 (Pa. Cmwlth. 2002).

What constitutes ample just cause for removal is largely a matter of discretion on the part of the head of the department. However, to be sufficient, the cause should be personal to the employee and such as to render the employee unfit for his or her position, thus making dismissal justifiable and for the good of the service. Woods v. State Civil Service Commission, 590 Pa. 337, 912 A.2d 803 (2006). Whether actions of a civil service employee constitute just cause for removal is a question of law fully reviewable by the court. Ellerbee-Pryer.

The Commission is the sole fact finder in civil service cases and has exclusive authority to assess witness credibility and resolve evidentiary conflicts. Here, the Commission appeared to credit the parolee’s denial of a relationship with the employee, and it it correctly concluded that the evidence presented by the Board was insufficient to establish the employee's knowledge of the person’s status as a parolee.

The Commission properly invoked its authority to modify the Board’s disciplinary action from removal to a thirty-day suspension without back pay or benefits. Section 952(c) of the Civil Service Act, 71 P.S. §741.952(c) (granting the Commission discretion to modify or set aside the disciplinary action of the appointing authority and, where appropriate, order reinstatement with or without payment of salary or wages lost).

disability - onset date - progressive impairment - medical advisor expert opinion required

Kirkwood v. Astrue - ED Pa. - Augut 11, 2010


http://www.paed.uscourts.gov/documents/opinions/10D0838P.pdf


SSR 83-20 requires that an ALJ use a medical advisor to determine the onset date of impairments when the onset date must be inferred due to the progressive nature of the impairment.1 See Walton v. Halter, 243 F.3d 703, 710 (3d Cir. 2001) (“[T]his is a situation in which an opinion based on personal, contemporaneous observation was not available. In such a situation, SSR 83-20 calls for an ALJ to have the benefit of expert medical advice based on the best available data without regard to its source.”). The Third Circuit reiterated this requirement in Newell v. Commissioner, 347 F.3d 541 (3d Cir. 2003).

SSR 83-20 states in relevant part:

In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred. If there is information in the file indicating that additional medical evidence concerning onset is available, such evidence should be secured before inferences are made. If reasonable inferences about the progression of the impairment cannot be made on the basis of the evidence in file and additional relevant medical evidence is not available, it may be necessary to explore other sources of documentation. Information may be obtained from family members, friends, and former employers to ascertain why medical evidence is not available for the pertinent period and to furnish additional evidence regarding the course of the individual's condition.

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UC - cosmetologist - employee v. indpt. contractor

Osborne Associates v. UCBR - Cmwlth. Court - August 13, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2084CD09_8-13-10.pdf


The court remanded this case back to the UCBR and directed it to apply the court's indpt. contractor body of law to the facts. The Board had granted benefits to the claimant, a cosmetologist, without applying the independent contractor test factors, concluded that Claimant was not disqualified from receiving benefits under Section 402(h) and Section 4(l)(2)(B) of the Law, because it believed that the cosmetology statute, 63 P.S. § 514.1 and related regulations, 49 Pa. Code § 7.81et seq., prohibited a cosmetologist from being an independent contractor, analogizing the matter to the case of a dental hygienist.


The court held that Board had created a body of law out of whole cloth and should, rather, have followed the court's analysys set out in Glatfelter Barber Shop v. UCBR, 957 A.2d 786 (Pa. Cmwlth. 2008), concerning the effect of a supervision requirement on the issue of employee v. indpt. contractor.


The "Board freely acknowledges that it decided this case on the basis of a different legal theory and that it did not make all of the findings necessary to determine Claimant’s eligibility for benefits based on the independent contractor test factors. The Board, thus, requests that this Court remand this matter back to the Board to make the necessary findings. We believe that the remand requested by the Board would be consistent with our precedent. See Resource Staffing, 961 A.2d at 265... D.K. Abbey Marketing, Inc. v. UCBR, 645 A.2d 339, 341-42 (Pa. Cmwlth. 1994)

federal courts - right to proceed anonymously

Doe v. Megless et al. - ED Pa. - August 5, 2010


http://www.paed.uscourts.gov/documents/opinions/10D0780P.pdf


The court rejected the sec. 1983 plaintiff's request to proceed anonymously in an action against school officials, who had circulated flyers calling plaintiff a "suspicious person," giving his name, address, pictures, vehicle information, etc. and stating “Extra Patrols Around Schools, Suspicious Person [John Doe] has been known to hang around schools in Upper Merion and other townships. He has not approached any kids to this point. [John Doe’s] mental status is unknown. If seen, stop and investigate.”

Lawsuits are inherently public events. SeeDoe v.Morrisville, 130 F.R.D. 612, 614 (E.D. Pa. 1990) (“[L]awsuits are public events and the public has a legitimate interest in knowing the pertinent facts, including the true names of the parties.”). The Federal Rules of Civil Procedure require litigants provide the names of all parties. Fed. R. Civ. P. 10(a);Morrisville, 130 F.R.D. at 614.

The public has a presumptive right to open judicial proceedings, and this right is not taken lightly. Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1043 (9th Cir. 2010); see also Doe v. Provident Life and Accident Ins. Co., 176 F.R.D. 464, 465 (E.D. Pa. 1997) (“This Court recognizes the strong public interest militating against pseudonymity— the public right of access to civil judicial records, and proceedings.”).

A plaintiff’s use of a pseudonym “runs afoul of the public’s common law right of access to judicial proceedings.” Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000). A court may allow a party to proceed anonymously in exceptional cases. Morrisville, 130 F.R.D at 614 (“Under special circumstances . . . courts have allowed parties to use fictitious names, particularly where necessary to protect privacy.”). Anonymity may be warranted if a case involves highly sensitive or personal matters, or if there is a concrete risk of injury to the plaintiff by disclosure. M. M. v. Zavaras, 139 F.3d 798, 803 (10th Cir. 1998). To proceed anonymously, a plaintiff must show “both a fear of severe harm, and that the fear of severe harm is reasonable.” Kamehameha Sch., 596 F.3d at 1043. The risk a plaintiff may suffer some embarrassment is not enough. Morrisville, 130 F.R.D. at 614; see also Rose v. Beaumont Indep. Sch. Dist., 240 F.R.D. 264, 266 (E. D. Tex. 2007)

A district court has broad discretion to decide whether to permit a plaintiff to proceed anonymously. Doe v. C.A.R.S. Protection Plan, Inc., 527 F.3d 358, 371 n.2 (3d Cir. 2008). In making this determination, “the public’s right of access [to the court] should prevail unless the party requesting pseudonymity demonstrates that [his] interests in privacy or security justify pseudonymity.” Doe v. Evans, 202 F.R.D. 173, 175 (E.D. Pa. 2001).

The Third Circuit has not addressed the standard for granting anonymity, but other circuits conduct a balancing test weighing the public interest in open proceedings against a litigant’s personal privacy and security. See Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001) (“The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally embedded presumption of openness in judicial proceedings.”) (citation, punctuation, and internal quotation marks omitted); Does I Thru XXIII, 214 F.3d at 1068 (“[We] hold that a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.”).

A district court considers a number of non-exclusive factors when decidingwhether to grant a party anonymity. Evans, 202 F.R.D. at 175. Factors in favor of anonymity include: (1) the extent litigant has kept his identity confidential; (2) the reason for anonymity; (3) if there is public interest in favor of anonymity; (4) if the case is fact sensitive or purely of a legal nature; (5) whether the litigant will pursue his claim if he cannot proceed anonymously; and (6) if the party opposing anonymity has illegitimate ulterior motives. Id. at 175-76. Factors against anonymity include: (1) the general level of public interest in the case; (2) if there is a higher level of public interest in the trial because of the subject matter involved or the public status of a litigant; and (3) if the party seeking anonymity has an ulterior motive. Id. . . .

After weighing the factors [at length], this Court holds Plaintiff has not proven his private interest in anonymity outweighs the public’s interest in open judicial proceedings. Accordingly, Plaintiff’s motion to proceed anonymously is denied.

sheriff's sale - setting aside

Irwin Union National Bank and Trust v. Famous - Superior Court - August 9, 2010

http://www.pacourts.us/OpPosting/Superior/out/S42044_10.pdf

Pennsylvania Rule of Civil Procedure 3132 provides: Setting Aside Sale - Upon petition of any party in interest before delivery of . . the sheriff's deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances. [Pa.R.C.P. 3181(a)(1)(8) makes Pa.R.C.P. 3132 applicable to mortgage foreclosure actions.]

The relevant inquiry is whether proper cause has been shown to set aside the sheriff's sale. The decision to set aside a sheriff's sale is within the sound discretion of the trial court. Merrill Lynch Mortgage Capital v. Steele, 859 A.2d 788, 791 (Pa. Super. 2004), appeal denied, 872 A.2d 1199 (Pa. 2005) (table).

A petition to set aside a sheriff’s sale is based on equitable principles. National Penn Bank v. Shaffer, 672 A.2d 326, 329 (Pa. Super. 1996).

“The burden of proving circumstances warranting the exercise of the court's equitable powers is on the petitioner, and the request to set aside a sheriff's sale may be refused due to insufficient proof to support the allegations in the petition.” Kaib v. Smith, 684 A.2d 630, 631 (Pa. Super. 1996) (internal citations omitted).

Sheriff’s sales have been set aside where the validity of the sale proceedings is challenged, a deficiency pertaining to the notice of the sale exists, or where misconduct occurs in the bidding process. Blue Ball National Bank v. Balmer, 810 A.2d 164, 167 (Pa. Super. 2002), appeal denied, 820 A.2d 702 (Pa. 2003) (table).

The appellate court will not reverse the trial court's decision absent a clear abuse of discretion. Kaib, supra.

nurses - license - crime - moral turpitude

Dwumaah v. State Board of Nursing - Cmwlth. Court - August 6, 2010 - unreported memorandum opinion



http://www.pacourts.us/OpPosting/Cwealth/out/2234CD09_8-6-10.pdf



Nursing license suspended because of conviction of crimes involving moral turpitude and immoral conduct, 63 P.S. § 224(a)(5) and (9), to wit, theft of public monies.

child abuse - expungement - hearsay - A.Y. case

Crawford Co. CYS v. DPW - Cmwlth Court. - August 6, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/2372CD09_8-6-10.pdf

ALJ did not commit an error of law by refusing to give any evidentiary weight to a typewritten transcript of an interview with the child victim that was not supported by an audio or video recording, under guidelines concerning hearsay set out in A.Y. v. Department of Public Welfare, 537 Pa. 116, 641 A.2d 1148 (1994). See 42 Pa. C.S. §5986.

social security - exempt funds - bankruptcy

In re Carpenter - 8th Cir. - July 30, 2010


http://www.ca8.uscourts.gov/opndir/10/07/092897P.pdf


Bankrupt's lump sum payment from the Social Security Administration (SSA) was exempt and should not be included in his bankruptcy estate, under 42 U.S.C. § 407 (“[N]one of the moneys paid . . . under this [Social Security Act] shall be subject to . . . the operation of any bankruptcy or insolvency law.”).


The court rejected the argument that the social security proceeds were property of the estate pursuant to 11 U.S.C. § 541 (including “all legal or equitable interests of the debtor in property as of the commencement of the case,” and not excluding social security payments).

__._,_.___

child abuse - "person responsible for child's welfare"

Westmoreland Co. CYS v. DPW - Cmwlth. Court - July 29, 2010 - unreported memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/2522CD09_7-29-10.pdf


The court held that the ALJ erred in holding an alleged perpetrator of child abuse was not a "person responsible for the child's welfare," as defined in 23 Pa. C.S. § 6303(a), where the minor child was, in fact under the accused's "temporary care, supervision and control" of the accused "in lieu of parental care, supervision and control," in spite of the minor child's false statement to her parents about being with a friend rather than the accused.


The court held that "there is no requirement that a person responsible have been 'entrusted' with this responsibility, so the deception of [the minor's] parents as to her whereabouts is not relevant." It was sufficient that the accused was, in fact, in the position of a "person responsible for the child's welfare."

admin. law - petition for review - amendment - time

Edwards v. UCBR - Cmwlth. Court - July 29, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2100CD09_7-29-10.pdf


After a petition for review is filed, the appeal proceeds directly to briefs on the merits, where clarification and detailed analysis of the questions will certainly be made. Thus, once the time for filing a petition for review has expired, the filing of an amended petition is of no import. To the extent it would add additional issues, it is improper; to the extent it does not, it is surplusage.

child abuse - expungement - discovery

Northumberland Co., CYS - DPW - Cmwlth. Court - July 29, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1799CD09_7-29-10.pdf


The Court affirmed DPW's order directing CYS to comply with the alleged perpetrator's request for production of all documentation, including medical records and films of the child, on which CYS' expert witness relied in his report and will rely at the hearing


It reversed DPW's decision denying the alleged perpetrator's request for production of the report of CYS' expert witness.


It affirmed the order to the extent that it denied the request that DPW produce other information in the investigatory file.

Concerning the right of the alleged perpetrator to the information, the court said that

It is undisputed that as a perpetrator of child abuse named in the indicated report, S.C. meets the definition of a "subject of the report." Under the plain and unambiguous language in 23 Pa. C.S. sec. 6340(b), therefore, S.C. is entitled to receive a copy of all information contained (1) in the Statewide central register or (2) in any report filed pursuant to Section 6313, subject to the restriction under Section 6340(c) as to revelation of the identity of the person who made the reports. . . .When [all of the relevant provisions of the CPSL] are construed in conjunction with the confidentiality provision in Section 6339 of the Law and the exception for a subject of the report in Section 6340(b), the Law clearly permits the subject of the report to receive all information contained in the reports filed with the county agency, including any accompanying photographs, X-rays and medical tests.

There is, however, a significant limitation to this apparent very broad grant. While the

Law clearly permits the subject of the report to receive all information contained in the reports filed with the county agency, including any accompanying photo-graphs, X-rays and medical tests.[23 Pa. C.S.] Section 6340(b) plainly and unambiguously limits the release of information to a subject of the report to that maintained in the Statewide central register or in any report filed pursuant to Section 6313. Consequently, S.C. is not entitled to receive any other information in the county agency's investigatory file. [emphasis added]

In discussing whether the case involved the appeal of a collateral order, the court noted the importance of the interests in this case:

Under Article I, Section 1 of the Pennsylvania Constitution, Pa. CONST. art.1, § 1, an individual has an "inherent and indefeasible" right to protect his or her reputation. In Pennsylvania, therefore, reputation is a fundamental interest which cannot be abridged without compliance with constitutional standards. R.H.S. v. Allegheny County Dep't of Human Servs., Office of Mental Health, 936 A.2d 1218 (Pa. Cmwlth. 2007). The discovery issue raised in these appeals involves the constitutionally protected reputation interest of an individual accused of child abuse and the competing interest of the agency in maintaining the confidentiality of information in its possession. The Court is also asked to decide the validity of a provision of the Department's regulations. Resolution of these issues affects not only the parties in this case but also all other litigants in expungement proceedings. Hence, the Bureau's order satisfies the second element of a collateral order.

debt collection - FDCPA - letter from mortgage servicer was "in connection with collection of debt"

Gburek v. Litton Loan Servicing - 7th Cir. - July 27, 2010


http://www.ca7.uscourts.gov/tmp/ZR0QHJX5.pdf


Generally speaking, a communication from a debt collector to a debtor is not covered by the FDCPA unless it is made “in connection with the collection of any debt.” FDCPA §§ 1692c, 1692e. Defendant's offers to participate in loan-workout was made “in connection with” debt collection efforts, even though they did not contain an explicit demand for payment.


The mortgage was in default, and the text of the letters indicate they were sent to induce the homeowner to settle her mortgage-loan debt in order to avoid foreclosure. The complaint thus sufficiently alleges communications that were “sent in connection with an attempt to collect a debt,” Ruth v. Triumph P’ships, 577 F.3d 790, 798 (7th Cir. 2009), and were in violation of the FDCPA.


Neither the 7th Circuit nor any other has established a bright-line rule for determining whether a communication from a debt collector was made in connection with the collection of any debt. However, the court cited three of its cases that is said established that "the absence of a demand for payment is just one of several factors that come into play in the commonsense inquiry of whether a communication from a debt collector is made in connection with the collection of any debt. The nature of the parties’ relationship is also relevant, as are a "communication made specifically to induce the debtor to settle her debt," and the payment status of the account.

admin. law - regulation v. statement of policy

Northwestern Youth Services v. DPW - Cmwlth. Court - July 23, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/386MD09_7-23-10.pdf


DPW Bulletins were held to be invalid, since

- they purported to establish a "binding norm" and "unambiguously mandate" certain actions and results, but
- DPW did not go throught the required procedures to get them adopted, under the Commonwealth Documents Law, 45 P.S. sec. 1102 et seq.


The bulletin imposed statewide mandatory requirements of CAOs and providers concerning residential placement services.


The analysis considered that

- the plain language of the bulletins was mandatory, using words like "binding" and "mandatory."
- the bulletins limited DPW's discretion.


The determination of whether an agency’s pronouncement is an unpromulgated regulation is a question of law. Eastwood Nursing & Rehabilitation Center v. DPW, 910 A.2d 134, 141 (Pa. Cmwlth. 2006), appeal denied, 592 Pa. 791, 927 A.2d 626 (2007). If an agency fails to properly promulgate a regulation in accordance with the CDL, we will declare the pronouncement a nullity. Borough of Bedford v. DEP, 972 A.2d 53, 62 (Pa. Cmwlth. 2009) (en banc).


Our Supreme Court has explained that an agency pronouncement constitutes a regulation when it purports to create a “binding norm”: “The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings…. A properly adopted substantive rule establishes a standard of conduct which has the force of law…. A general statement of policy, on the other hand, does not establish a ‘binding norm’…. A policy statement announces the agency’s tentative intentions for the future.” Pennsylvania Human Relations Commission v. Norristown Area School District, 473 Pa. 334, 350, 374 A.2d 671, 679 (1977) (citation omitted). “Statements of policy are agency pronouncements that declare [the agency’s] future intentions but which are applied prospectively on a case-by-case basis and without binding effect.” Borough of Pottstown v. Pennsylvania Municipal Retirement Board, 551 Pa. 605, 610 n.8, 712 A.2d 741, 743 n.8 (1998) (emphasis in original). A statement of policy also tracks the language of a statute and does not expand on its plain meaning. Bedford, 972 A.2d at 64.


To determine whether an agency has attempted to establish a binding norm, we must consider: (1) the plain language of the enactment; (2) the manner in which the agency implements it; and (3) whether it restricts the agency’s discretion. Cash America Net of Nevada, LLC v. Commonwealth, 978 A.2d 1028, 1033 (Pa. Cmwlth. 2009) (en banc).

foreclosure - HEMAP - circumstances - self-employment - business expenses

Meider v. PHFA - Cmwlth. Court - July 23, 2010 - unreported memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/164CD10_7-23-10.pdf


The court upheld PHFA's decision to exclude homeowner's business expenses from sole proprietorship from financial calculations, relying on Valentine v. PHFA, 511 A.2d 915 (Pa. Cmwlth. 1986) and Horton v. PHFA, 511 A.2d 917 (Pa. Cmwlth. 1986), where it held that "it was a voluntary choice for homeowners to divert payments on the home property to fund business enterprises. These voluntary choices precluded a finding that each applicant’s financial hardship was due to circumstances beyond the applicant’s control. Similarly, in this case, Petitioner expended funds toward a business enterprise, which depleted the funds available to pay the mortgage."


The court found the cases "similar to Cullins v. PHFA, 623 A.2d 951 (Pa. Cmwlth. 1993)....As in Cullins, we are not persuaded that the state of the economy caused Petitioner’s inability to find work. While Petitioner’s desire to maintain his long-standing business is laudable, the record is clear the business ceased being a source of income several years ago. In Cullins¸ husband applicant engaged in his business for only one year before trying to mitigate his economic difficulties by abandoning the business. In this case, Petitioner did not mitigate his economic difficulties, but exacerbated them by failing to accept the economic reality concerning his business. As in Cullins, we defer to the Agency, and we discern no error in the Agency’s determination that Petitioner’s choice in funding his business precluded a determination that his economic difficulties were caused by circumstances outside his control. Concomitantly, we discern no error in the Agency’s decision to not include in its calculations funds Petitioner expended toward the maintenance of his business.

UC - pro se appeal - timeliness

DeWitt v. UCBR - Cmwlth. Cour - July 15, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2638CD09_7-15-10.pdf



The court held that it did not have the power, under Rule 211 of its Internal Operating Procedure, 210 Pa. Code sec. 67.13, to extend the time for a party to take a pro se appeal beyond that stated in the rule, which provides that

(a) Upon receipt by the chief clerk from a pro se party of a written communication which evidences an intention to appeal, the chief clerk shall timestamp the writing with the date of receipt. The chief clerk shall advise the party by letter:
(1) As to the procedures necessary to perfect the appeal.
(2) That the date of receipt of the pro se communication will be preserved as the date of filing of the appeal, on condition that the party files a proper petition for review within 30 days of the date of the letter from the chief clerk. If the party fails to file a proper petition for review within that period, the chief clerk shall advise the party by letter that the court will take no further action in the matter.
(b) Upon receipt by the chief clerk of a notice of appeal in cases in which a petition for review is the proper appeal document, the chief clerk shall time-stamp the notice of appeal with the date of receipt and the court shall forthwith enter an order giving the party 30 days to file a petition for review and indicating that the failure to do so will result in the dismissal of the appeal. (emphasis added)

The court held that, if the petitioner files its petition for review more than 30 days from the date of the explanatory letter from the chief clerk, referred to abuse, the appeal will be dismissed.

The jurisdictional requirements of filing a petition for review can be deemed met when a petitioner has provided the Court with notice that he/she intends to appeal. Larocca. IOP 211(a)(2) preserves the filing date “on the condition that the party files a proper petition for review within 30 days of the letter from the chief clerk.” 210 Pa. Code § 67.13(a)(2). It then provides that if the party fails to do so “the chief clerk shall advise the party by letter that the court will take no further action in the matter.” Id. Thus, our jurisdiction is conditional on the party filing a perfected petition for review within thirty days of the chief clerk’s letter. Once this thirty-day time period expires, the date of the receipt of the pro se communication is no longer preserved and our jurisdiction is extinguished.

UC - willful misconduct - sleeping on job - medical condition

Philadelphia Parking Authority v. UCBR - Cmwlth. Court - July 14, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1995CD09_7-14-10.pdf


A claimant is not guilty of willful misconduct even when she admittedly slept on the job, under the circumstances of this case, since a) her violation of the employer rule was not deliberate, and b) she had a physical condition (sleep apnea) which caused the conduct and about which she informed the employer.


The court discussed claimant's proof of her physical condition at length, but ultimately resolved the case on the ground the employer did not prove that claimant had deliberately violated the employer rules against sleeping at work.

The record reveals that Claimant’s position involved sitting in the money room for hours with nothing to do and that she would get drowsy. Claimant recognized the problem and attempted to address it by informing Employer that she was tiring and asking for additional work to keep her busy and alert. However, with the exception of two small assignments, Employer did not provide her with additional work or take any other action to remedy the situation. Although Claimant fell asleep during her shift, Claimant attempted to resolve her drowsiness problem in a responsible manner that protected the interests of Employer. Considering Claimant’s actions in light of all of the circumstances of this case, we conclude that Employer failed to prove that Claimant deliberately or intentionally violated its work rules by sleeping during her shift. Because Employer failed to meet its initial burden, the burden never shifted to Claimant to demonstrate good cause for her actions, and we need not address whether Claimant’s testimony was sufficient to establish that medical problems provided her with good cause for sleeping on the job.

Here is the court's discussion about how a claimant must prove a medical condition/physical illness:

Physical illness can constitute good cause for a claimant's noncompliance with an employer's directive. Brillhart v. UCBR, 447 A.2d 697 (Pa. Cmwlth. 1982). To establish such a claim, a claimant is not required to produce expert testimony, but rather need only introduce “competent evidence”: The distinction between ‘competent evidence’ … and the ‘competent medical evidence’ requirement articulated in the opinion of the court below is vital. The former is a broader standard which allows an applicant to meet the burden with his own testimony and supporting documents. The latter is a more stringent requirement which could result in the denial of benefits simply because an applicant fails to provide the expert testimony of a physician even where such testimony would be superfluous or cumulative. The broader standard more effectively comports with this Court's view that the Unemployment Compensation Law must be liberally and broadly construed. Steffy v. UCBR, 499 Pa. 367, 372, 453 A.2d 591, 594 (1982) (emphasis added). This Court subsequently interpreted Steffy to allow a claimant to satisfy his or her burden of production by presenting her testimony and/or supporting documents. Lee Hospital v. UCBR, 637 A.2d 695 (Pa. Cmwlth. 1994); Judd v. UCBR, 496 A.2d 1377 (Pa. Cmwlth. 1985). In Goettler Distributing, Inc. v. Unemployment Compensation Board of Review, 508 A.2d 630 (Pa. Cmwlth. 1986), this Court expressly concluded that the disjunctive “and/or” interpretation of Steffy was the better analysis and was consistent with the broad and liberal interpretation of the Law.

In a concurring opinion, one panel member addressed proof of a medical/physical condition as follows:

I believe that, ordinarily, corroborative medical evidence, either documentary or testimonial, should be required, or at least some corroborating circumstances. Thus, I would revisit those prior published opinions which suggest, in dicta,4 that the claimant’s testimony alone is sufficient as a matter of law. I would not do so here, however, for two reasons. Arguably, medical condition or not, anyone left alone in a room for hours on end late at night with nothing to do might well fall asleep unintentionally. Second, because of this claimant’s significant prior medical history and pre-termination complaints to employer, I would find her credited testimony to be sufficient.

employment - health insurance - employer Ch. 11 bankruptcy

In re Visteon Corp. - 3d Circuit - July 13, 2010


http://www.ca3.uscourts.gov/opinarch/101944p.pdf (95 pp.)


The Industrial Division of the Communications Workers of America , as the representative of approximately 2,100 retirees from Visteon Corporation’s manufacturing plants, appeals the district court’s order, affirming the bankruptcy court’s order permitting Visteon to terminate retiree health and life insurance benefits without complying with the procedures set forth in 11 U.S.C. § 1114.


Both courts reasoned that, notwithstanding the language of that statute, it would be unreasonable to interpret § 1114 as limiting an employer’s right to modify or terminate benefits during the pendency of a Chapter 11 bankruptcy proceeding, if the employer could unilaterally terminate those benefits outside of bankruptcy pursuant to a reservation of rights clause in the benefit plan. Since Visteon reserved the right to unilaterally terminate the retiree benefits at issue here, the courts concluded that Congress did not intend § 1114 to limit that right.


On appeal, the union argues that the plain language and legislative history of § 1114 compel exactly the result the district and bankruptcy courts avoided. The union claims that Congress intended to restrict a debtor’s ability to modify or terminate, except through the § 1114 process, any retiree benefits during a Chapter 11 bankruptcy proceeding, regardless of whether the debtor could terminate those benefits outside of bankruptcy. Based on the plain language of § 1114 (as well as its legislative history), we agree. Accordingly, as explained more fully below, we will reverse the order of the district court and remand for further proceedings.


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Section 1114 was enacted...as the primary substantive component of the Retiree Benefits Bankruptcy Protection Act of 1988 (“RBBPA”), Pub. L. No. 100-334, 102 Stat. 610 (1988) (codified as amended at 11 U.S.C. §§ 1114, 1129(a)(13)). Congress enacted the RBBPA in response to LTV Corporation’s termination of the health and life insurance benefits of 78,000 retirees during its 1986 Chapter 11 bankruptcy, with no advance notice to the affected retirees.

In crafting § 1114, Congress provided certain procedural and substantive protections for retiree benefits during a Chapter 11 proceeding. Section 1129(a)(13) ensures that some measure of those protections extends beyond the proceeding....and provides additional protection for retiree benefits by giving them priority they would not otherwise have.

tax sale - notice - posting - hearsay evidence

Ebersole v. Blair County Tax Claim Bureau - Cmwlth. Court - July 9, 2010
unreported memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/2002CD09_7-9-10.pdf


Hearsay evidence about posting by employee of the tax office was not sufficient under the law to prove proper posting.


It is well settled that a valid tax sale requires strict compliance with all three of the notice provisions of the Law, and that the sale is void if any of the three forms of notice are defective. In re Upset Sale Tax Claim Bureau McKean County on September 10, 2007 (Miller), 965 A.2d 1244 (Pa. Cmwlth.), petition for allowance of appeal denied, 602 Pa. 682, 981 A.2d 221 (2009). Strict compliance is necessary to guard against any deprivation of property without due process of law. Id.; Ban v. Tax Claim Bureau of Washington County, 698 A.2d 1386 (Pa. Cmwlth. 1997); In re Upset Price Tax Sale of September 10, 1990 (Sortino), 606 A.2d 1255 (Pa. Cmwlth. 1992).

In determining whether a property is properly posted, a court “[m]ust consider not only whether the posting is sufficient to notify the owner of the pending sale, but provides sufficient notice to the public so that any interested parties will have an opportunity to participate in the auction process.” Ban, 698 A.2d at 1388. By notifying the public at large of the sale, the taxing authority has the greatest opportunity to recover lost tax revenues. O’Brien v. Lackawanna County Tax Claim Bureau, 889 A.2d 127 (Pa. Cmwlth. 2005).

As a result, a court may set aside a tax sale where the property is not properly posted under Section 602(e)(3), even though the property owner possesses actual knowledge of the tax sale, because a defect in posting prevents adequate notice to the public. Ban.

Section 602(e)(3) does not provide a specific method of posting, merely stating that “[e]ach property scheduled for sale shall be posted at lease ten (10) days prior to the sale.” 72 P.S. § 5860.602(e)(3). Although a presumption of the regularity of the posting exists until the contrary appears, a property owner may create a contrary appearance and overcome this presumption by filing exceptions to the tax sale on the basis that the Law’s notice provisions were not strictly followed. Miller; Sortino.

The burden then shifts to the Bureau or to the purchaser to show that the Bureau strictly complied with the notice provisions of the Law. Miller; Sortino. “[T]he case law clearly establishes that the posting must be done in a manner reasonably calculated to provide notice to the public. The courts have required that the posting be conspicuous.” O’Brien, 889 A.2d at 128. “’Conspicuous’ means posting such that it will be seen by the property owner and the public generally. In re Sale of Real Estate by Montgomery County Tax Claim Bureau, 836 A.2d 1037 (Pa. Cmwlth. 2003).” Wiles v. Washington County Tax Claim Bureau, 972 A.2d 24, 28 (Pa. Cmwlth. 2009).

Based on the foregoing, it is clear that the trial court erred in concluding that the Bureau had sustained its burden of proof with respect to the posting requirements of Section 602(e)(3) of the Law. That portion of the testimony that was found credible by the trial court11 merely demonstrates that the witness from the tax office could not independently recall how the parcels of property had been posted, and that she relied upon the Bureau exhibits in testifying regarding the manner by which the parcels had been posted.

punitive damages - constitutional factors

Klein v. Weidner - ED Pa. - July 2, 2010

http://www.paed.uscourts.gov/documents/opinions/10D0644P.pdf


This case involved an award of punitive damages for defendant's violation of the Pennsylvania Uniform Fraudulent Transfer Act, 12 Pa. C.S. § 5101, et seq. Defendant fraudulently transfered monies from his corporation to himself and his wife, as tenants by the entireties, in an attempt to shield the money.


In awarding punitive damages, the Court had to consider the constitutional parameters of punitive damages awards. “The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003). To determine the constitutionality of a punitive damages award, courts consider: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” Id. at 418.


"The most important factor of these three is the reprehensibility element. Id. at 419. Analysis of reprehensibility for constitutional purposes requires a different test than the analysis required by Pennsylvania law. To determine degree of reprehensibility for constitutional purposes, courts must consider whether “the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.” Id. at 419. No single factor is dispositive. Id."

admin. law - local agency appeal - adequacy of record

Pittsburgh Water and Sewer v. Gladstone - Cmwlth. Court - June 23, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/382CD09_6-23-10.pdf


In a local agency appeal, the authority of the common pleas court to remand or hear a case de novo is tied to a finding that a complete record was not made before the local agency. Only if common pleas determined that the record before the agency was incomplete does it have discretion to determine the manner of correcting a deficient record. Ret. Bd. of Allegheny County v. Colville, 852 A.2d 445, 450 (Pa. Cmwlth 2004) appeal after remand at 888 A.2d 21 (Pa. Cmwlth. 2005), aff’d¸592 Pa. 433, 926 A.2d 424 (2007); The School District of the City of Erie v. Hamot Med. Center of the City of Erie, 602 A.2d 407, 408 (Pa. Cmwlth. 1992) (“It is clear from the language of Section 754 that the trial court is empowered to hear the case de novo only if it determines that the record before the local agency was incomplete.”).

The CCP here determined that it had committed an error of law pursuant to Section 754 of the AAL by failing to determine whether the record submitted by the Authority was a complete record before proceeding to a de novo hearing. 2 Pa. C.S. § 754 provides:

(a) INCOMPLETE RECORD.-- In the event a full and complete record of the proceedings before the local agency was not made, the court may hear the appeal de novo, or may remand the proceedings to the agency for the purpose of making a full and complete record or for further disposition in accordance with the order of the court.

(b) COMPLETE RECORD.-- In the event a full and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency. After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter B of Chapter 5 (relating to practice and procedure of local agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. § 706 (relating to disposition of appeals).

A review of the transcript here shows that common pleas proceeded to a hearing de novo after being advised by counsel for the Authority that this was the appropriate method of review of the agency determination It did so, however, without first independently reviewing the record to determine its completeness. We agree with the trial court that this procedure was not in accordance with Section 754 of the AAL.

The court did, however, make such a review post trial and determined the agency record to be inadequate. Moreover, at the de novo hearing both parties had the opportunity to submit documents into evidence and adduce testimony, thus compiling a complete record, and the trial court did not find that any error occurred during the course of that hearing. Therefore, the failure to make the determination required by Section 754 before proceeding de novo is entirely harmless, and we reverse the grant of a new trial.

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

On the merits, concerning a very large water bill , the Authority sent an invoice to Appellants for water service at the Residence for the thirty-four day period of $12,627.18 based upon a purported consumption of 1,204,000 gallons of water. The meter reading history for water usage at the Residence for the twenty-three months prior to May 2007 indicated usage had not exceeded 10,000 gallons per month and often had not exceeded 5,000 gallons per month. The average monthly invoice amount, which reflected both actual meter readings and estimates, was less than fifty dollars. After a de novo hearing in the CCP, the court reduced the invoice to $42.98

housing - sec. 8 - criminal conviction

Belajac v. Allegheny Co. Housing Authority - Cmwlth. Court - June 30, 2010 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1319CD09_6-30-10.pdf


The court upheld the decision of ACHA to terminate the petitioner's sec. 8 benefits based on a criminal convictions involving sexual offenses against a minor child that had taken place six (6) years earlier.

The court said that "the Authority is permitted to terminate Section 8 assistance “[i]f the family violates any family obligations under the program.” 24 C.F.R § 982.552(c)(1)(i). The family obligation set forth in Section 982.551(l) of the HUD regulations provides: “The members of the household may not engage in . . . violent criminal activity or other criminal activity that threatens the health, safety, or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises.” 24 C.F.R. § 982.551(l).


The tenant had been involved in the Section 8 program since 1995. In November of 2002, tenant was arrested and charged with indecent assault, endangering the welfare of children, corruption of minors, and involuntary deviate sexual intercourse. The charges related to conduct involving a five-year-old female victim, which occurred August 3, 2002, at tenant's subsidized unit at the time. On advice of counsel, tenant pleaded guilty to indecent assault and corruption of minors on September 24, 2003, and, as a result, was required to register as a sex offender with the Pennsylvania State Police for a period of ten years. In 2005, Belajac moved to his current subsidized unit located. On August 25, 2008, the Authority sent notification that it intended to terminate his Section 8 assistance for violating his family obligations2 and for being a lifetime registered sex offender.


The criminal incident was not reported to the HA. It is not stated in the facts when the HA became aware of it.


All the circumstances -- At the termination hearing, tenant presented mitigating evidence that he suffered a severe head injury in 1991, resulting in diminished competency, memory loss, high frustration levels, and temperament problems. He also presented letters of support from citizens of his community, including the chief of police. Citing its decision in Housing Authority of York v. Dickerson, 715 A.2d 525 (Pa. Cmwlth. 1998), allocatur denied, 560 Pa. 676, 742 A.2d 172 (1999), the Court held that, althought he hearing officer had in fact considered the mitigating evidence, "consideration of all of the circumstances in each case is discretionary, not mandatory," noting that Dickerson had overruled the decision in Housing Authority of York v. Ismond, 700 A.2d 559 (Pa. Cmwlth. 1997), affirmed, 556 Pa. 436, 729 A.2d 70 (1999), where it had held that the PHA was required to consider the mitigating factors listed in then-existing Section 882.216(c)(2) of the HUD regulations, formerly 24 C.F.R. § 882.216(c)(2), before terminating Section 8 assistance.


Threat to safety - Despite the remoteness of tenant's conduct, the HA and court held that his "obligation to register as a sex offender was 'highly suggesti[ve]' that he 'threatens the safety of other residents and those in the immediate vicinity of the premises' due to the fact that the purpose of the registration requirement is the protection of the community. The hearing officer determined that the conviction was not prohibitively remote due to the fact that he had a continuing obligation to register as a sex offender until 2014. In addition, the hearing officer explained that the period of time between tenant's conviction and the Authority’s decision to terminate Section 8 assistance was due to tenant's failure to report the conviction to the Authority. The hearing officer stated, “[t]here is no evidence that the [Authority] had knowledge of the conviction at the time it occurred. . . . [T]he conviction was discovered during a background check, rather than through normal reporting requirements of the tenant.” This discussion addresses the question of why the HA acted to terminate sec. 8 assistance when it did.


Scope of review - The court held that the trial court, which had reviewed and reversed the HA decision to terminate sec. 8 assistance, had exceeded its powers and wrongly substituted its discretion for that of the HA. "In Allegheny County Housing Authority v. Liddell, 722 A.2d 750, 753 (Pa. Cmwlth. 1998), this Court discussed a court’s scope of review when reviewing local agency action that by law is committed to the agency’s discretion. We stated: [C]ourts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion, in the absence of bad faith, fraud, capricious action or abuse of power; they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution. It is true that the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions." That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion. Liddell, 722 A.2d at 753 (emphasis in original).