custody - pre-trial statement - witness list - Rule 1915.4-4

Order      http://www.pacourts.us/assets/opinions/Supreme/out/633civ.pdf?cb=1

 

Rule        http://www.pacourts.us/assets/opinions/Supreme/out/633civ-attach.pdf?cb=1

 

Explanatory comment  

http://www.pacourts.us/assets/opinions/Supreme/out/633civ-rpt.pdf?cb=1

 

 

                                                                     EXPLANATORY COMMENT

 

 

In 2013, the Domestic Relations Procedural Rules Committee (the “Committee”) recognized there was a wide disparity in pre-trial procedures in custody cases among

the various judicial districts. By adopting this rule, the Supreme Court established uniform state-wide pre-trial procedures in custody cases. With an eye toward reducing

custody litigation, the rule encourages early preparation and court involvement for purposes of expedited resolutions. The rule was based upon the pre-trial procedures in

divorce cases as set forth in Pa.R.C.P. No. 1920.33(b). The rule does not affect, however, the First Judicial District's practice of conducting a pre-trial conference upon

the filing of a motion for a protracted or semi-protracted trial.

 

In 2015, the Committee expressed concern the rule as previously adopted by the Supreme Court allowed for an interpretation contrary to the intent of the rule. The

Committee proposed and the Court adopted an amendment to the rule to clarify the rule’s mandate as it relates to witnesses. As a goal of any pre-trial conference is to

settle the case, in whole or in part, the Committee believed a best practice in reaching that goal is having a thorough knowledge of the case, including the substance of

anticipated witness testimony. As amended, the rule plainly states that counsel or a self-represented party is required to discuss with the witness their testimony prior to

including the witness on the pre-trial statement.

 

Unlike Pa.R.C.P. No. 1920.33(b), the rule does not require inclusion of a summary of the witness’s testimony in the pre-trial statement; but rather, an affirmation

by counsel or self-represented party that there was actual communication with each witness about the witness’s testimony. With the additional information from witnesses,

counsel, self-represented parties and the trial court can better engage in more fruitful settlement discussions at the pre-trial conference.

 

_____________________

 

(b)(2)  Inclusion of a witness on the pre-trial statement constitutes an affirmation that the party’s counsel or the self-represented party has communicated with the

witness about the substance of the witness’s testimony prior to the filing of the pre-trial statement

 

 

UC - notice of ineligibility/overpayment - late notice

Grimm v. UCBR – Cmwlth. Court – October 28, 2015 – unreported memorandum decision

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2265CD14_10-28-15.pdf?cb=1

 

Claimant argues that he was prejudiced by the Department’s delay of five months in issuing the notices of determination to inform Claimant that he was ineligible for unemployment compensation benefits and was subject to a fault overpayment and penalty weeks while he continued to receive benefits. However, Claimant did not raise this issue of timeliness of the notices before the referee, and therefore the issue is waived. Grever, 989 A.2d at 402 (“Issues not raised at the earliest possible time during a proceeding are waived.”).

 

Furthermore, the Law does not impose a deadline on the Department to issue notices of determination; instead, Section 501 of the Law requires that the Department “promptly examine” each claim for benefits and notify the claimant in writing if a claim is determined to be invalid.6 43 P.S. § 821(c)(1), (2). Here, that is exactly what happened: the Service Center collected questionnaires from Employer and Claimant regarding Claimant’s separation and also conducted telephonic interviews with Employer and Claimant prior to issuing the notices of determination.

 

6 Timely notice is one of the essential elements of due process; however, “timely notice” for the purpose of procedural due process requires that notice “sufficiently precedes a hearing so as to give the accused enough time to prepare a defense.” Howell v. Bureau of Professional and Occupational Affairs, State Board of Psychology, 38 A.3d 1001, 1008 (Pa. Cmwlth. 2011).  

 

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

An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

If the case is old, the link may have become stale and may not work, but you can use the case and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

admin. law - agency interpretation of statute - level of deference

Lancaster County v. PLRB – Pa. Supreme Court – October 27, 2015

 

http://www.pacourts.us/assets/opinions/Supreme/out/J-15A_B-2015mo.pdf?cb=1

 

To the extent the issues before us concern statutory interpretation, i.e., a legal standard, we note:

 

[A]n administrative agency’s interpretation [of a statute] is be to given

‘controlling weight unless clearly erroneous.’ However, when an

administrative agency’s interpretation is inconsistent with the statute itself,

or when the statute is unambiguous, such administrative interpretation

carries little weight. Appreciating the competence and knowledge an

agency possess in its relevant field, our Court [has] opined that an appellate

court ‘will not lightly substitute its judgment for that of a body selected for its

expertise whose experience and expertise make it better qualified than a

court of law to weigh facts within its field.’ Moreover, we have emphasized

that this high level of deference is especially significant in the complex area

of labor relations.  Lancaster County v. PLRB, ___ Pa. ___, 94 A.3d 979, 986 (2014) (quotations and

citations omitted).

 

Although the Board’s interpretation of the statute is consistent with [the statute], and  thus should be given due deference, the Commonwealth Court effectively substituted, without justification, its own judgment [over that of the agency] .  See Lancaster County, ___ Pa. at ___, 94 A.3d at 986.  The Commonwealth Court’s holding. . . contravenes the plain language of [the statute] , and since there is no indication the Board’s interpretation is clearly erroneous, it should be given controlling weight. See id.

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

 

If the case is old, the link may have become stale and may not work, but you can use the case and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

 

 

arbitration - NAF designation - severability

Wert v. Manor Care of Carlisle – Pa. Supreme Court – 10-27-15

 

http://www.pacourts.us/assets/opinions/Supreme/out/J-24-2015oajc%20-%201024134215570705.pdf?cb=1

 

 

Golden Living Center - Gettysburg et al. (“Appellants”) appeal the Superior Court’s decision affirming, in relevant part, the trial court’s order overruling Appellants’ preliminary objections seeking to compel arbitration and reserving for trial the underlying

negligence action filed by Evonne K. Wert (“Appellee”), daughter of Anna E. Kepner (“Decedent”) and executrix of Decedent’s estate. For the following reasons, we affirm the order of the Superior Court and remand to the trial court for further proceedings

consistent with this decision.

 

The following issues of first impression have been presented before this Court:

 

(a) Whether the Superior Court’s decision in Stewart v.

GGNSC-Canonsburg, L.P., 9 A.3d 215 (Pa. Super. 2010), holding that the

NAF Designation voided an identical Arbitration Agreement, was

incorrectly decided and should be reversed, where there is no evidence

indicating that the NAF designation was integral to the Agreement?

 

(b) Whether the Court may ignore undisputed testimonial evidence that

the party seeking to void the Agreement did not consider the NAF

Designation to be an “integral part” of the Arbitration Agreement (because

she did not bother to read the agreement)?

 

Wert v. ManorCare of Carlisle PA, LLC, 95 A.3d 268, 268-69 (Pa. 2014) (per curiam

order) (footnote omitted).

 

Pursuant to the reasoning of the Stewart court and the majority of our sister jurisdictions, we find that, post-consent decree, Section five of the FAA cannot preserve

NAF-incorporated arbitration agreements unless the parties made the NAF’s availability  non-essential by specifically varying the terms of its procedure.17 Regardless of

whether Section five may apply where there is a lapse in the administrator, by its own rules, the NAF must administer its code unless the parties agree to the contrary. The

parties here agreed that any disputes “shall be resolved exclusively by binding arbitration to be conducted . . . in accordance with the [NAF] Code of Procedure, which is

hereby incorporated into this Agreement[.]” R. 348a (emphasis added).

 

We therefore find the provision integral and non-severable. Doing otherwise would require this Court to rewrite the Agreement. Underlying FAA policy, as interpreted by the Supreme Courtin Marmet, does not mandate a different result because our conclusion is based on settled Pennsylvania contract law principles that stand independent of arbitration.

 

UC - late appeal - confusion - UCSC mishandling - nunc pro tunc allowed

Victoria v. UCBR – Cmwlth. Court – October 14, 2015 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1809CD14_10-14-15.pdf?cb=1

 

Because the current status of the claimant’s case was “entirely unclear” due to numerous and sometimes conflicting notices, the Court found “persuasive a recent decision by this court, Walsh v. Unemployment Compensation Board of Review, (Pa. Cmwlth., No. 1248 C.D. 2012, filed May 13, 2013), 2013 Pa. Commw. Unpub. LEXIS 374” and held that  as a result of the service center’s mishandling of her claim, the claimant was understandably confused which led to “misstep[s] in her attempts to navigate her way through the Service Center’s errors.”

 

The court held that the circumstances constituted a breakdown in the administrative process and allowed the claimant’s untimely appeal.10  10 See also Carr v. Unemployment Comp. Bd. of Review, (Pa. Cmwlth., No. 662 C.D. 2014, filed December 19, 2014), 2014 Pa. Commw. Unpub. LEXIS 728   The UCSC mishandling of the claim constitutes a breakdown in the administrative process warranting a nunc pro tunc appeal.

_________________

 

An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

If the case is old, the link may have become stale and may not work, but you can use the case and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

consumer - Telephone Consumer Protection Act - standing - regular user

Leyse v. Bank of America National Assn. – 3d Circuit – October 14, 2015

 

http://www2.ca3.uscourts.gov/opinarch/144073p.pdf

 

A “regular user” of a phone line, such as the roommate of the intended recipient of a robocall advertising for credit cards, held to have  standing to sue under the TCPA, 47 USC 227, even though the roommate was not the “called party” or “intended recipient.”

 

The TCPA, 47 U.S.C. § 227, as well as its associated regulations prohibits any person from, among other things, “initiat[ing] any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the FCC.”

 

The court held that the roommate came within the “zone of interests’ that the TCPA was meant to protecr, given the interests and purposes of the statute.  It held that the evidence made it  “clear that the Act’s zone of interests encompasses more than just the intended recipients of prerecorded telemarketing calls. It is the actual recipient, intended or not, who suffers the nuisance and invasion ofprivacy. This does not mean that all those within earshot of an unwanted robocall are entitled to make a federal case out of it. Congress’s repeated references to privacy convince us that a mere houseguest or visitor who picks up the phone would likely fall outside the protected zone of interests. On the other hand, a regular user of the phone line who occupies the residence being called undoubtedly has the sort of interest in privacy, peace, and quiet that Congress intended to protect.

wages - payroll records - injunction - pre-emption

Martinez v. CFM Corp. – Pa.Superior – October 7, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A19003-15o%20-%201023867985473186.pdf?cb=1

 

Trial court not pre-empted by federal law from enjoing payroll services firm from issuing new W-2 forms for class of attendant caregivers for MA recipients.  Class alleged screw-up of payroll records and violations of Wage Payment and Collection Law and contract violations.

 

UC - willful misconduct - absence - pre-trial incarceration

Miller v. UCBR – Cmwlth. Court – October 9, 2015 –


order directing opinion to be reported http://www.pacourts.us/assets/opinions/Commonwealth/out/2282CD14ORD_12-23-15.pdf?cb=1

 

opinion 
http://www.pacourts.us/assets/opinions/Commonwealth/out/2282CD14_10-9-15.pdf?cb=1

 

Case remanded where claimant was absent from work for two weeks during pre-trial incarceration on charge of violation of his probation, where

 

            - claimant, by his wife, gave employer notice of the incarceration

 

            - claimant was found not guilty of having violated his probation

 

“Absenteeism alone, while grounds for discharge, is not a sufficient basis for denial of unemployment benefits. An additional element, such as lack of good cause for absence, is necessary.” Runkle v. UCBR, 521 A.2d 530, 531 (Pa. Cmwlth. 1987). Factors that are considered in determining whether absenteeism constitutes willful misconduct are: (1) excessive absences; (2) failure to notify the employer in advance of the absence; (3) lack of good or adequate cause for the absence; (4) disobedience of existing company rules, regulations, or policies with regard to absenteeism; and (5) disregard of warnings regarding absenteeism. Petty v. Unemployment Compensation Board of Review, 325 A.2d 642, 643 (Pa. Cmwlth. 1974).

 

The predominate issue in this case . . ..is whether Claimant had good cause for the absences so as to preclude or negate a finding of willful misconduct. See Medina v. UCBR, 423 A.2d 469, 471 (Pa. Cmwlth. 1980). The concept of “good cause” has been characterized as an action of the employee that is justifiable or reasonable under all the circumstances.   “Absence from work due to pre-trial incarceration is not, itself, willful misconduct.” Bruce v. UCBR, 2 A.3d 667, 671 (Pa. Cmwlth. 2010) (citing Hawkins, 472 A.2d at 1192).

 

Pursuant to Hawkins, Wertman, and Bruce, the dispositive issue in this case is whether Claimant violated his probation. . . . The docket entries are vague and do not demonstrate conclusively that Claimant was found not to have violated the terms of his probation.

Here, the Board disregarded Claimant’s testimony, determined for itself that Claimant violated probation, and, in doing so, overlooked the critical fact that a criminal trial court had already ruled on the probation case.  Notably, the Board did not make any specific credibility determination with respect to Claimant’s testimony that the criminal trial court found that he did not violate the terms of his probation. Where the Board fails to make necessary findings and credibility determinations, we must remand to the Board.

 

Accordingly, we vacate the Board’s order and remand for the Board to determine the credibility of Claimant’s testimony that the criminal trial court found that he did not violate his probation and for additional finding(s) based upon that credibility determination. Because the outcome of the criminal trial court case is absolutely vital to determining whether Claimant violated his probation, on remand, the Board, on its own or on further remand to a referee, shall provide Claimant with the opportunity to submit court documentation – e.g., a court order, a hearing transcript, etc. – to prove that the trial court found that he did not violate probation. . . . .The Board shall then issue a new decision that accounts for its credibility determination and additional finding(s) of fact.

 

_______________________

 

Pa. R.A.P.  3716; 210 Pa. Code § 69.414 (a) Citing Judicial Opinions.  (a) Parties may...cite an unreported panel decision of this court issued after January 15, 2008, for its persuasive value, but not as binding precedent.

 

UC - hearings - claimant representative - Harkness

Powell v. UCBR – Cmwlth. Court – Sept. 11, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1704CD14_9-17-15.pdf?cb=1

 

Claimant showed up at successive continued hearings, represented by one then another attorney who was under suspension by the Supreme Court. 

 

Analyzing the caseunder Disciplinary Rule 201(a), the Board found that the attorneys were prohibited from representing claimant and affirmed the referee decision that claimant had committed willful misconduct.

 

The Court reversed holding that the questions was not whether representing a party before an unemployment compensation referee constitutes the practice of law, but rather, whether the Board acted properly when it prohibited the suspended attorneys from representing Claimant at the hearing.

 

Pursuant to Section 214 of the UC Law, Claimant had a statutory right to be represented by his designee at an unemployment compensation hearing.  The Supreme Court has held that the representative need not be an attorney, because representation before an unemployment referee does not constitute the practice of law. See Harkness v. UCBR, 920 A.2d 162 (Pa. 2007).

 

Rather than applying Section 214 of the Law and the Supreme Court’s decision in Harkness, the Board analyzed the Disciplinary Rules in considering if suspended attorneys could act as a claimant’s representative during a referee hearing, rejecting the argument that the suspended attorneys were acting as representatives, not as attorneys, for his hearings. 

 

The court held that only the Supreme Court and Disciplinary Board, have the power to interpret and enforce the Disciplinary Rules—not the Board.  It also noted that the Board, in ignoring its own rules and applying the Disciplinary Rules, ultimately sanctioned Claimant for the attorneys’ potential violation of the Disciplinary Rules by denying Claimant representation at the second hearing.  

 

The Board,  therefore, erred when it interpreted the Disciplinary Rules to prevent the two suspended attorneys from representing Claimant, and this matter should be remanded to the Board to allow Claimant to have a hearing with representation of his choice.

default judgment - opening - petition filed within 10 days

Easton Condominium Assn v. Nash – Cmwlth. Court – September 18, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2015CD14_9-18-15.pdf?cb=1

 

The trial court erred in denying defendant’s petition to open the default judgment, which was filed within 10 days of entry of the judgment and alleged a meritorious defense.   Defendant was not required to assert any reasonable excuse for the inactivity or delay under Pa. R.C.P. No. 237.3(b), because her petition was filed within 10 days of the entry of judgment and the trial court found that she alleged a meritorious defense.

 

Pa. R.C.P. No. 237.3(b) states, in relevant part, that “[i]f the petition is filed within ten days after the entry of the judgment on the docket, the court shall open the judgment if the proposed complaint or answer states a meritorious … defense.”  Boatin v. Miller, 955 A.2d 424 (Pa. Super. 2008).

 

UC - voluntary quit - demotion

RIO Supply Inc. v. UCBR – Cmwlth. Court – September 18, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1939CD14_9-18-15.pdf?cb=1

 

Following Allegheny Vally School v. UCBR, 697 A.2d 243 (Pa. 1997) and Diversified Care Management v. UCBR, 885 A.2d 130 (Pa. Cmwlth. 2005) , the Court held that

 

- an unjustified demotion is a necessitous and compelling reason to quit a job

- hearsay evidence alone is not competent evidence to justify a demotion

- “substantial change” analysis does not apply to a demotion case

- requiring the employer to present evidence that the demotion was justified does not improperly shift the burden of proof

 

Generally, necessitous and compelling cause exists when there is real and substantial pressure to terminate one’s employment that would compel a reasonable person to do so under similar circumstances, Wert, and a claimant must show that he acted with ordinary common sense in quitting, made a reasonable effort to preserve his employment, and had no real choice but to leave his employment. Cowls v. UCBR, 427 A.2d 722, 723 (Pa. Cmwlth. 1981).  However, the Supreme Court made clear in Allegheny Valley School that a determination of necessitous and compelling cause in the case of a voluntary termination after a demotion does not consider the general factors set forth above but focuses solely on the justification for the demotion.

 

In light of this precedent, it is clear that a demotion premised on an employee’s inability to perform his job responsibilities is justified and does not constitute a necessitous and compelling reason to quit.  Conversely, a claimant will have necessitous and compelling reasons to voluntarily terminate employment if the demotion was unjustified.

 

A claimant bears the burden to demonstrate that his voluntary termination of employment was based upon a necessitous and compelling reason. Wise v. UCBR, 111 A.3d 1256, 1264 (Pa. Cmwlth. 2015). The Board specifically referenced this burden in its opinion. However, as the Board also noted, a claimant meets this burden in demotion cases by establishing that the demotion was not justified. Allegheny Valley School.

 

In the present case, Claimant testified that there was no reason, including any disciplinary reason, for his demotion. Employer sought to rebut Claimant’s testimony by offering testimony that Claimant’s demotion was premised on a conversation with a driver who was resigning.  This was the only evidence submitted by Employer relating to Claimant’s demotion.   The failed to present this driver as a witness or otherwise attempt to corroborate this statement by a third party. As a result, the Board characterized this testimony as hearsay.

 

The law is well settled that hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of the Board, if it is corroborated by any competent evidence in the record. Stugart v. Unemployment Compensation Board of Review, 85 A.3d 606, 608 (Pa. Cmwlth. 2014) (citing Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976)). However, a finding of fact based solely upon hearsay will not stand. Borough of Grove City v. Unemployment Compensation Board of Review, 928 A.2d 371, 374 (Pa. Cmwlth. 2007).

 

 

 

 

 

schools - free transportation - two difft. parental residences w/in same district

Watts v. Manheim Twp. School District – Pa. Supreme Court – Augusut 26, 2015

 

http://www.pacourts.us/assets/opinions/Supreme/out/J-25-2015mo%20-%201023370585289948.pdf?cb=1

 

We granted review to consider whether the Public School Code of 1949mandates that a school district provide free transportation to a student from two different

residences where the student’s parents share physical custody of the student and both parents reside within the school district. The Commonwealth Court held that the

Manheim Township School District (“the School District”) must provide transportation to both parents’ residences.

 

For the reasons set forth herein, we agree that the School District is required to provide free transportation to and from both parents’ residences in this case. Accordingly, we affirm the decision of the Commonwealth Court.

FMLA - deficient request - opportunity to cure

The petition for rehearing filed by appellee Lehigh Valley Hospital Network in the above-entitled case having been submitted to the judges who participated in the decision of this Court, it is hereby O R D E R E D that the petition for rehearing by the panel is granted. The opinion and judgment entered June 22, 2015 are hereby   V A C A T E D.1A subsequent opinion and judgment will be issued.


http://www2.ca3.uscourts.gov/opinarch/141772po.pdf

_______________________________________


Hansler v. Lehigh Valley Hospital Network – 3d Cir. – August 19, 2015

 

http://www2.ca3.uscourts.gov/opinarch/141772p1.pdf

 

Deborah Hansler requested intermittent leave from her former employer, Lehigh Valley Health Network (“Lehigh Valley”), under the Family Medical Leave Act of 1993 (“FMLA” or the “Act”), 29 U.S.C. § 2601 et seq.1 Specifically, Hansler submitted a medical certification requesting leave for two days a week for approximately one month. As alleged in the complaint, the medical certification refers to the length of her requested leave but not the nature or duration of her condition.  A few weeks later, after she took several days off work, Lehigh Valley terminated Hansler’s employment without seeking any clarification about her medical certification, as required by law.

 

Lehigh Valley cited excessive absences and informed her that the request for leave had been denied. Hansler sued Lehigh Valley for violations of the Medical Leave Act, and the District Court dismissed the complaint on the basis that the medical certification supporting Hansler’s request for leave was “invalid.” We conclude that, by alleging that Lehigh Valley terminated her instead of affording her a chance to cure any deficiencies in her medical certification, Hansler has stated a claim that Lehigh Valley violated the Medical Leave Act. Accordingly, we reverse and remand for further proceedings.

 

 

UC - willful misconduct - progressive disciplinary system

Philadelphia Corp. for Aging v. UCBR – Cmwlth. Court – August 5, 2015 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/11CD15_8-5-15.pdf?cb=1

 

Employer did not satisfy its burden of proving willful misconduct where it did not follow its own progressive disciplinary policy (PDP) in terminating claimant’s employment.   The employer presented no evidence that its PDP permitted it to reinstate claimant’s probationary status, where claimant had completed probationary period and became regular employee subject to PDP.

 

“Where an employer has established a specific rule applicable to all employees, it must follow its own progressive discipline policy when disciplining specific employees.” Looney v. Unemployment Compensation Board of Review, 529 A.2d 612, 614 (Pa. Cmwlth. 1987.)

 

Employer is correct that it can legally terminate employment of an at-will employee without strictly adhering to its Disciplinary Actions Guide; however, Employer relies on wrongful termination cases, which do not discuss eligibility for UC benefits, in its attempt to extend that proposition to the instant UC case.  UC Law, on the other hand, examines whether an employer adheres to its established policy in disciplining or terminating an employee because “promulgation of specific rules puts employees on notice that the employer will not consider such conduct to be adverse to its interest until the requisite number of violations have been committed.” PMA Reinsurance Corporation v. Unemployment Compensation Board of Review, 558 A.2d 623, 626 (Pa. Cmwlth. 1989). If an employer does not follow its disciplinary policies when discharging a claimant, we have held that the employer has consequently not established, for purposes of UC Law, “that the discharge was for willful misconduct related to [the] [c]laimant’s work.” Id. In these circumstances, the claimant will not be deemed ineligible for UC benefits pursuant to Section 402(e) of the Law notwithstanding the employer’s prerogative to discharge at-will employees for any number of reasons.

 

Here, Employer does not address the Referee’s finding that, after Claimant successfully completed probation on December 22, 2013, she became a regular employee subject to the rights and protections set forth in Employer’s personnel handbook, including being disciplined in accordance with the Disciplinary Actions Guide. Employer has provided no record evidence of the disciplinary procedures, as provided for in its Disciplinary Actions Guide, or specified the basis upon which it could reinstate a 90-day probationary period for a regular employee who is tardy or absent in violation of Employer’s rules.6 Because Employer did not proffer the Disciplinary Actions Guide or any testimony of any other procedures it follows as record evidence, there was no evidence to support Employer’s argument that it could reinstate Claimant’s probation as it did. The Board, therefore, could consider Claimant as a regular, non-probationary employee for purposes of Employer’s disciplinary policy, and there was no evidence that the policy provided for termination under the facts found in this case.

____________________

 

This  summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable  and can be accessed without a password.

 

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414. – soon to be Rule 3716 ***

 

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

 

 

 

UC - negligence v. willful misconduct - prior warnings - lack of findings - remand

Shadowfax Corp. v. UCBR – Auust 4, 2015 – unreported memorandum decision

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2121CD14_8-4-15.pdf?cb=1

 

The court remanded the case for findings about the employer’s alleged prior warning to claimant about her job performance.   Claimant was an activities coordinator at a mental health facility.  She was fired after she forgot to take one of the residents on a field trip, claiming to have inadvertently/negligently left him behind.

 

Mere negligence or inadvertence on its own does not rise to the level of willful misconduct. Scott v. Unemployment Compensation Board of Review, 36 A.3d 643, 648 (Pa. Cmwlth. 2012). Rather, willful misconduct requires “the additional element of an intentional disregard of the employer’s interests.” Myers v. Unemployment Compensation Board of Review, 625 A.2d 622, 626 n.3 (Pa. 1993). However, repeated conduct of an employee in the face of multiple warnings will support a finding of willful misconduct. Scott, 36 A.3d at 648.   

 

The employer  presented evidence that Claimant had been previously warned concerning issues with her supervision of individuals under Employer’s care.   The Board capriciously disregards evidence when it “willfully or deliberately ignore[s] evidence that any reasonable person would have considered to be important.” Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 710 n.5 (Pa. Cmwlth. 2013). Although the Board is the ultimate fact-finder when it comes to resolving evidentiary conflicts and making credibility determinations, the Board may not willfully ignore evidence when making credibility determinations. Id. Here, the referee’s findings of fact, which the Board adopted and incorporated, make no mention of the repeated warnings. Although the referee found Claimant’s testimony credible that she inadvertently left the resident at Employer’s facility, neither the Board nor the referee expressly considered Claimant’s previous warnings regarding supervisory concerns in analyzing whether her actions constituted willful misconduct.

 

In unemployment cases, the Board is the ultimate fact-finder empowered to make all determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1382, 1385 (Pa. 1985).    However, the Board in this case did not make any findings or determinations based on Claimant’s prior received warnings and did not make any credibility determinations concerning Employer’s witnesses. As reflected in Scott, supra, these findings are necessary to a determination of whether Claimant’s actions rise to the level of willful misconduct.   We reiterate that it is the Board’s duty and functional purpose to assign credibility and weight determinations to the evidence presented. See Wardlow v. Unemployment Compensation Board of Review, 387 A.2d 1356, 1357 (Pa. Cmwlth. 1978). The Board’s failure to do so impedes our ability to conduct meaningful appellate review and requires that the case be remanded for such findings.

 

___________________

 

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

 

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

 

 

 

MERS - recorder of deeds v. MERS - 3d Cir.

Montgomery Co. Record of Deeds v. MERSCORP – 3d Cir. – August 3, 2015

 

http://www2.ca3.uscourts.gov/opinarch/144315p.pdf

 

In 2011, Appellee Nancy J. Becker, the Recorder of Deeds for Montgomery County, Pennsylvania , brought this action on behalf of herself and other similarly situated county recorders of deeds in Pennsylvania against MERSCORP, Inc. and Mortgage Electronic Registration Systems, Inc., entities associated with the MERS System (“MERS”), a national electronic registry system for mortgage loans.  The Recorder sought to recover millions of dollars in unpaid recording fees, contending that the MERS entities have unlawfully failed to pay such fees in violation of Pennsylvania law, 21 Pa. Cons. Stat. Ann. § 351. Because we conclude that § 351 does not create a duty to record all land conveyances, a key premise on which the Recorder’s claims were and are based, we will reverse.

 

We will also deny the Recorder’s motion for certification of two issues to the Supreme Court of Pennsylvania. The answer to the issue of state law that decides this case, at least before us, is so clear that we would be abdicating our responsibilities by punting. We recognize, of course, that were the Supreme Court at some point to answer the question differently, that decision would control. Cf. County of Ramsey v. MERSCORP Holdings, Inc., 776 F.3d 947, 951 (8th Cir. 2014) (declining to certify issue to the state’s highest court); Union County, Ill. v. MERSCORP, Inc., 735 F.3d 730, 735 (7th Cir. 2013) (same).

expungement - founded report

DM v. DPW – Cmwlth Court – August 3, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1463CD14_7-27-15.pdf?cb=1

 

The court upheld DPW’s dismissal of D.M.’s (Petitioner) appeal to expunge a founded report of child abuse maintained in the ChildLine Registry pursuant to the Child Protective Services Law (CPS Law). 

 

It rejected arguments that (i)the record from Petitioner’s criminal proceeding did contian sufficient facts to serve as the basis for a “founded” report of child abuse;  and (ii) that a report of suspected child abuse based upon court action must be reported as “unfounded” if it is not finalized within sixty (60) days of the date of criminal sentencing.

 

The subject child was seventeen years old at the time of the events at issue and a resident at a facility for adolescents.   Petitioner was employed at the residential facility and in his capacity as a staff member and supervisor was responsible for Child’s welfare.

 

Petitioner pleaded no content to a harassment charge.  The information filed by the District Attorney stated that the harassment charge was based upon the following:

with intent to harass, annoy, or alarm another person, [Petitioner] did communicate to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures, in that [Petitioner] did state to a seventeen (17) year old female victim “I bet you don’t shave your [p---y].” and/or did ask the victim what kind of underwear she was wearing and/or did grab his penis in front of the victim while stating “I bet you can’t handle this.”

disability - step 2 - severity

O’Keefe v. Colvin – ED Pa. -  July 20, 2015

 

https://www.paed.uscourts.gov/documents/opinions/15D0633P.pdf

 

 The Court will sustain O’Keefe’s objection that the Administrative Law Judge erred in holding his mental impairment did not meet the standard of severity in step two of the five-step sequential evaluation process used to determine if an individual is disabled.   Accordingly, O’Keefe’s request for review will be granted, and this case will be remanded to the Commissioner for further review consistent with this Memorandum.

 

The ALJ found at step two of the analysis that O’Keefe’s obesity was a severe impairment and that his hypertension and fatty liver disease, when combined, were also severe impairments. The ALJ also concluded, however, that O’Keefe’s affective disorder was best described as depression, NOS (not otherwise specified), and was nonsevere.

 

O’Keefe asserts that impairment severity is a “de minimis” inquiry and an impairment must be found severe if it imposes anything more than a minimal effect on claimant’s ability to work. He argues the ALJ failed to properly assess and weigh the material health evidence, and the ALJ did not properly analyze the expected duration of O’Keefe’s mental impairments despite evidence that his medical condition steadily declined after he entered a formal mental health center. The Court agrees and finds the ALJ did not use the appropriate standard when finding O’Keefe’s mental impairment was not severe.

 

“The burden placed on an applicant at step two is not an exacting one,” and “an applicant need only demonstrate something beyond ‘a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual’s ability to work.’” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004) (citing Soc. Sec. Admin. Program Policy Statement, SSR 85-28, 1985 WL 56856, at *3 (1985)); see also Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003) (“If the evidence presented by the claimant presents more than a ‘slight abnormality,’ the step-two requirement of ‘severe’ is met, and the sequential evaluation process should continue.”). Further, “[a]ny doubt as to whether this showing has been made is to be resolved in favor of the applicant.” McCrea, 370 F.3d at 360 (citing Newell, 347 F.3d at 546-47).

 

In making his decision as to disability, the ALJ does not have discretion to reject a medical expert’s opinion simply because he disagrees with the physician’s interpretation of the claimant’s medical evidence, and he cannot “supplant[] the opinions of [the claimant’s] treating and examining physicians with his personal observation and speculation.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). The ALJ must give the opinions of a claimant’s treating physician “substantial and at times even controlling weight.” See Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 202 (3d Cir. 2008) (citation omitted). If rejecting a treating physician’s opinion outright, he may only do so “on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation or lay opinion.” Morales, 225 F.3d at 317 (citations and internal quotation marks omitted). In other words, the ALJ may not substitute his lay opinion for the medical opinion of a treating physician, especially in cases involving mental disabilities. See Id. at 319; Rivera v. Astrue, 9 F. Supp. 3d 495, 502 (E.D. Pa. 2014).

 

If an ALJ believes that the submitted reports are conclusory or unclear, it is “incumbent upon the ALJ to secure additional evidence from another physician.” Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985); see also Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986) (“[A]n ALJ is not free to set his own expertise against that of a physician who presents competent evidence.”). According to SSA policies, the ALJ “must obtain an updated medical opinion from a medical expert” when additional medical evidence is received that “may change the State Agency’s medical or psychological consultant’s findings.” SSR 96-6p, 1996 WL 374180, at *3-4 (July 2, 1996); Morales, 225 F.3d at 319-20; accord 20 C.F.R. § 416.912(e) (stating that an ALJ may ask claimant to attend a consultative exam if evidence from claimant’s own medical sources are insufficient or nonexistent); 20 C.F.R. § 404.1517 (explaining if a claimant’s medical sources cannot or will not provide sufficient medical evidence about claimant’s impairment, an ALJ may ask the claimant to have one or more physical or mental examinations).