disability - depression - onset date - evidence

Payton v. Barnhart - ED Pa. - February 24, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0223P.pdf

The ALJ's determination of onset date in closed period case was inconsistent with the medical evidence and not supported by substantial evidence where the sole support of the ALJ decision was a "'non-examining' State Agency 'checklist.'"

The evidence showed that claimant's depression "did not suddenly become a severe impairment" on the date found by the ALJ but existed prior to that point, as established by the medical evidence.

The court reversed the ALJ decision rather than remanding the case, because the administrative record was "fully developed and…substantial evidence on the record as a whole indicates that the cliamant is disabled and entitled to benefits."

Donald Marritz
MidPenn Legal Services

Pennsylvania Bulletin of February 28, 2006

Here's the link http://www.pabulletin.com/secure/data/vol36/36-8/index.html

Of possible interest-

- welfare - MA program fee schedule - procedure code changes
http://www.pabulletin.com/secure/data/vol36/36-8/346.html

- attorneys - discipline - rules of disciplinary enforcement - amendments
http://www.pabulletin.com/secure/data/vol36/36-8/322.html

- court rules - proposed - pleadings, format - comments due March 8th
http://www.pabulletin.com/secure/data/vol36/36-8/323.html

- juvenile court judges' commission - statement of policy - admin. of restitution funds
http://www.pabulletin.com/secure/data/vol36/36-8/329.html

- revenue - mystery multiplier bingo instant lottery game
http://www.pabulletin.com/secure/data/vol36/36-8/348.html

custody - international - Hague Convention

In re Application of Adan - Third Circuit - Febrary 14, 2006

http://www.ca3.uscourts.gov/opinarch/053045p.pdf

District Court ordered return of parties' daughter to Argentinian father, whom appellant-mother had accused of abusing her and daughter. The 3d Circuit ordered a stay of the return order and remanded the case back to the district court -- which it said had created a "woefully incomplete" record -- for detailed fact-finding about the abuse, the ability of Argentinian authorities to protect the child, etc.

See also, Baxter v. Baxter, Third Circuit Court of Appeals, September 15, 2005 http://www.ca3.uscourts.gov/opinarch/043228p.pdf

Donald Marritz
MidPenn Legal Services

Class Action Notice Landscaping H-2B Case

To: Advocates for Workers

The United States District Court for the Eastern District of Pennsylvania nationwide FLSA opt-in class action notice on behalf of H-2B workers against The Brickman Group, Ltd. is available at the following web location:
http://friendsfw.org/H-2B/Brickman/Class_Notice.pdf

The consent form must be returned prior to July 15, 2006. A copy of the consent form is available for printing at:
http://friendsfw.org/H-2B/Brickman/Brickman_Consent.pdf

Brickman is one of the largest employer's of H-2B landscaping workers. The class includes more than 2,000 persons from Mexico and more than 100 persons from Guatemala. The lawsuit is based upon the continuing failure to comply with Arriaga, et al. v. Florida Pacific Farms, LLC, et al., 305 F.3d 1228 (11th Cir. 2002)

The Defendant's U.S. operations where in numerous different status. Addresses supplied as last known US addresses for foreign H-2B workers include persons in the following states (in declining numbers of persons for 2005) : MD; MI; PA; IN; MO; OH; NJ; VA; NY; CO; TX; CT; FL; DE; TN; IL; CA; MA; NC

Interested persons should contact Friends of Farmworkers staff attorney Manuel Boigues, mboigues@friendsfw.org, telephone (215) 733-0878, ext. 130.

Co-counsel include:

Edward Tuddenham
and
Rachel Micah-Jones
Centro de los Derechos del Migrante
Calle Víctor Rosales #164
Col. Centro, Zacatecas, Zac., Méx.
C.P. 98000
Tel: 011 (52) 492 925 2510
Fax: 011 (52) 492 925 2511
Free call from Mexico 01-800-59-01-773
Free call within the US: 1 - (800) 401-5901


From: Art Read, Friends of Farmworkers

contracts - oral settlement agreement - enforceability

Krebs v. United Refining Co. - Superior Court - February 16, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a21034_05.pdf

An oral settlement agreement can be enforceable, even where the parties cannot agree about reducing it to writing. However, the claim to enforce was denied in this case, because there was no agreement as to essential terms. The nature and extent of mutual obligations were not certain, and there was no agreement about material and necessary details of the parties' alleged bargain. A trial court cannot fill in missing terms and enforce an agreement of its own devising.

Donald Marritz
MidPenn Legal Services

UC - voluntary quit - leaving the work site

Iaconelli v. UCBR - Commonwealth Court - February 16, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1443CD05_2-16-06.pdf

Claimant was held to have quit her job when she left the work site and did not thereafter try to return to contact the employer. She "did not take any steps to preserve her employment relationship."

"An employee merely leaving the work premises is not enough to determine intent to voluntarily terminate her employment….A claimant must have a conscious intention to terminate her employment….An employee who leaves her employment w/o informing her employer when or if she is planning to return may be held to have voluntarily quit….However, the majority of these cases allow for a reasonable period of time in which an employee has the opportunity to manifest an intent to quit and the employer has the opportunity to contact the employee or vice-[sic]versa."

Donald Marritz
MidPenn Legal Services

UC - findings - complete/specific

Central Dauphin School District v. UCBR - Commonwealth Court - February 15, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1453CD05_2-15-06.pdf

This is a voluntary quit case in which a teacher left her job because of serious student discipline problems. The court remanded the case back to the UCBR for further findings of fact on a) Claimant's credibility and b) whether the employer provided her "appropriate and sufficient support" in resolving the student discipline problems

The court said that the student behavior, if it took place, "would certainly create circumstances that produced real and substantial pressure to terminate employment… if the facts are found as outlined in the record. However, without specific fact finding we can not [sic] exercise proper appellate review." (emphasis added)

The Board "never ruled on the credibility of Claimant vis-a-vis the alleged conduct" outlined in her testimony or whether the employer provided her "appropriate and sufficient support" in resolving the problem.

Donald Marritz
MidPenn Legal Services

paternity by estoppel

Gebler v. Gatti - Pennsylvania Superior Court - February 2, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s52014_05.pdf

The trial court's finding of paternity by estoppel (PBE) was reversed (2-1). The parties were never married, Defendant-appellant held the child out as his own for 18 months, "under Mother's misrepresentation that he was the only one having sexual relations with Mother at the time of conception." Defendant ceased acting as the child's father when he got a private DNA test and learned that he was not the child's biological father. The appellate court said that the doctrine of PBE is "aimed at achieving fairness" by holding parties to the prior conduct. It held that to apply the doctrine here "would defy principles of equity...." One judge dissented.

Donald Marritz
MidPenn Legal Services

consumer protection - pleading - fraud v. misrepresentation - contract under seal - limitations

Christopher v. First Mutual Corp. - ED Pa. - January 20, 2006

http://www.paed.uscourts.gov/documents/opinions/06d0073p.pdf

pleading - fraudulent v. deceptive conduct
The district court found that under the catchall provision of the state consumer protection law, 73 P.S. sec. 201-2(xxi), which prohibits "fraudulent or deceptive conduct which created a likelihood of confusion or misunderstanding," it is "no longer necessary for a plaintiff to plead all of the elements of common law fraud to recover" under that provision, where a plaintiff is claiming deception rather than fraud.

It was noted that "courts have divided on whether a plaintiff must meet the heightened fraud pleading requirement," Skurnowicz v. Lucci, 798 A.2d 788 (Pa. Ssuper. 2002) or a less strict requirement, Flores v. Shapiro & Kreisman, 246 F.Supp.2d 427, 432 (ED Pa. 2002), and that the state supreme court had not yet addressed the issue.

statute of limitations - contract under seal
The court also held that the 20-year statute of limitations applied where the document contained the typed words "In witness whereof, I hereunto set my hand and official seal" and the word "seal" was next to each witness signature, 42 Pa. C.S. sec. 5525(a)(8) (contract under seal).

Donald Marritz, staff attorney
MidPenn Legal Services

UC- suitable work - refusal of temporary work w/pay cut

Department of Education v. UCBR - Commonwealth Court - January 27, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1478CD05_1-27-06.pdf

Held, that claimant (CL) did not refuse suitable work, 43 PS 753(t), and was not disqualified under 43 PS 802(a) where:

a) she had only been unemployed two weeks at the time of the employer's job offer;
b) the offer was for temporary work;
c) CL had "favorable prospects of obtaining new [permanent] employment" ;
d) CL had just been placed on a civil service list for a permanent position;
e) the offer would have involved a 26% reduction in pay and loss of benefits;
f) ER did not inform the OES [sic] of the job offer, as required by 43 P.S.sec. 802(a)*

Pennsylvania courts "have developed a balancing test, considering the reduction in pay on one hand against he duration of unemployment on the other, with the weight of the former decreasing as the latter increases." The "'most important factor in this type of case is the length of time that the claimant has been unemployed.' "

The court said that our "supreme court has repeatedly recognized that a claimant is entitled to a 'reasonable opportunity' to find employment commensurate with her training and experience" and held that, under all of the above circumstances, CL had good cause for refusing the ER's offer.

Donald Marritz
MidPenn Legal Services

* This is footnote to say that this apparently dispositive issue was only mentioned in a footnote.

employment - ADA - medical exam/inquiry

Ward v. Merck & Co., Inc. - ED Pa. - January 9, 2006

http://www.paed.uscourts.gov/documents/opinions/06d0034p.pdf

Summary judgment granted to employer (ER) on Plaintiff's claim that he was terminated from his job in violation of the provision of the Americans with Disabilities Act, 42 USC sec. 12111(d), that prohibits a medical exam or inquiry about a disability, its nature or severity, "unless such examination or inquiry is shown to be job-related and consistent with business necessity."

The court found that there was "more than sufficient evidence" to justify the ER's medical inquiry in this case, where there were allegations that Plaintiff's job behavior and performance deteriorated badly.

Donald Marritz
MidPenn Legal Services

consumer - insurance - duty of insured to cooperate in investigation of claim

Murphy v. Federal Insurance Company - ED Pa. - January 18, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0056P.pdf

Defendant's motion for summary judgment granted. Plaintiff breached his contract when he unreasonably refused to cooperate in the insurer's investigation of his claim, to the prejudice of the insurer.

Interpretation of an insurance contract is a question of law. Where a policy is ambiguous, it should be construed against the insurer. If the terms are clear and not ambiguous, the court must give effect to the plain language. Here there was a clear contractual duty of the insured to cooperate in the investigation. His refusal to do so had a prejudicial effect on the insurer.

Donald Marritz
MidPenn Legal Services

UC - willful misconduct - refusal to obey ER direction - insubordination

ATM Corp. of America v. UCBR - Commonwealth Court - January 23, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1560CD05_1-23-06.pdf

Held, refusal of Claimant (CL) to agree to request of employer (ER) for background check was insubordination and willful misconduct.

CL had been an accounting clerk for ER for 4 years w/o incident. In February 2005, ER adopted a new policy and directed CL and all others in the accounting dept. to sign a consent for a background check. There was no ER rule at the time of CL's hire about such checks, although there was a rule about insubordination. CL refused to sign, claiming that the request was overbroad and unreasonably intrusive. ER advised CL that her continued refusal would be grounds for dismissal for insubordination. CL's job involved handling sensitive information, including credit card info, social security numbers, addresses, loan info, etc., and gave her access to large sums of money. There was a specific ER concern about identity theft.

The Court held that CL's refusal to consent to the background check violated the ER rule about insubordination, and that CL did not have good cause for her refusal, thus making her actions willful misconduct. It said that it was "beyond peradventure that Employer has a legitimate need to protect the confidential information of its customers to which accounting department employees, including Claimant, have daily access. A background check is a "reasonable way to protect that confidential information, particularly where demanded by Employer's financial partners and customers. Such background checks are not unique, which is why their occurrence must be disclosed by employers under the Fair Credit Reporting Act [15 USC sec. 1681a(h)]....[T]he Authorization Form conformed to the requirement of federal law." The court said the if a background check of the type identified in the FCRA was "too intrusive on Claimant, it is difficult to imagine for what employment positions it would ever be appropriate." The ER direction was "reasonable under the circumstances, and Claimant's refusal to cooperate was willful misconduct." In addition, the court said that the CL's failure to articulate specific reasons for her refusal "was itself a form of insubordination."

Donald Marritz
MidPenn Legal Services

employment - public - speech - retaliaton - sec. 1983 - qualified immunity

Springer v. Henry - Third Circuit - January 18, 2006

http://www.ca3.uscourts.gov/opinarch/044124p.pdf

Lower court judgment under 42 USC 1983 affirmed for doctor who had been terminated from his job at a state hospital in retaliation for his criticism of the hospital administration (patient care and safety issues). Defendant's claim of qualified immunity rejected, since law prohibiting such termination was clear at the time.

Donald Marritz
MidPenn Legal Services

ADA - $ damages - immunity

U.S. v. Georgia , U.S. Supreme Court - January 10, 2006

http://www.supremecourtus.gov/opinions/05pdf/04-1203.pdf

Held, To the extent that Title II of the Americans with Disabilities Act (ADA), 42 USC 12131 et seq., creates a private cause of action for money damages against states for conduct that actually violates sec. 1 of the 14th Amendment, it validly abrogates the state's sovereign immunity. The case involved a prisoner who claimed that prison officials deliberately refused to accommodate his disability related needs.

The majority opinion focused on possible violations of the 8th Amendment, applicable to the states through the 14th Amendment. The majority noted a disagreement on the Court "regarding the scope of Congress's 'prophylactic' enforcement powers under sec. 5 of the Fourteenth Amendment," but held that "no one doubts that sec. 5 grants Congress the power to 'enforce...the provisions' of the Amendment by creating private remedies against the States for actual violations of those provisions." (emphasis in original)

The concurring opinion of Justice Stevens emphasized that other constitutional rights may also be applicable in the disabled prisoner context, including the right of access to courts (Tennessee v. Lane, 541 U.S. 509 (2004)), abridgement of religious liberties, undue censorship, interference with access to the judicial process, and procedural due process. Justice Stevens also noted that "the state defendants have correctly chosen not to challenge the Eleventh Circuit's holding that Title II is constitutional insofar as it authorizes prospective injunctive relief against the State."

Donald Marritz
MidPenn Legal Services

UC- partial benefits - actual earnings v. potential earnings

Jehrio v. UCBR, Commonwealth Court, January 20, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1699CD05_1-20-06.pdf

This case involves one week, during which the claimant (CL) -- a full-time banquet server -- worked one day, took one day vacation, and no work was available for 5 days. The Board held that the CL was entitled to partial benefits, 43 P.S. sec. 753(u), less her potential earnings on the vacation day, pursuant to UC regs, 35 Pa. Code sec. 65.71

The Court reversed, holding that the regulation and the Board's decision were in conflict with the statute, 43 P.S. 804(d)(1, which directs that partial benefits be reduced by a claimant's actual earnings on the vacation day -- in this case, her vacation pay ($52), which was considerably less that her potential earnings ($218.50 -- hourly wage plus tips), had she worked that day.

Noting the remedial nature of the UC law, the court held that "[i]f the Employer affords employees vacation days, and pays for those vacation days, it would be unfair to penalize those employees and require them to report potential earnings for a day that the Employer agreed they did not have to work. If Employer prevailed, employees could never request a vacation day if work was available to them without being penalized because they would always be required to deduct their potential earnings for the day rather than the vacation pay employer actually paid them."

Donald Marritz
MidPenn Legal Services

debt collection - "debt collector" - vicarious liability

Flamm v. Sarner & Associates and John Matusavage -- ED Pa. - January 4, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0022P.pdf

Defendants' motion for summary judgment denied in a case in which Plaintiff sued law firm and Matusavage, whom she alleged was its employee, for M's actions in trying to collect on a judgment for a doctor's bill. Matusavage (M) went to P's employer several times, accused the P of being a "sneaky thief" who had stolen thousands of dollars from the creditor-doctor, that the employer (ER) could be "in trouble" if it had people like P as employees, and that the next time M went to the ER, he would bring a sheriff and P would be arrested.

law firm as "debt collector"
The law firm defendant was held to be a "debt collector" under the Fair Debt Collection Practices Act, 15 USC sec. 1692 et seq, i.e., a person whose principal business it is to collect debt, or who "regularly collects or attempts to collect debts owed to or due to another." The law firm "consistently has a small percentage of debt collections cases....a consistent taking and handling of debt collection cases" The court held that given this and other evidence, a "reasonable jury could find that" the law firm defendants are debt collectors under the FDCPA.

law firm liability for act of employee or indpt. contractor
Plaintiff claimed Matusavage was the law firm's employee. The firm said that M was an independent contractor, and that it was not liable for his actions. The court noted that there is "relatively little case law on the subject of vicarious liability under the FDCPA" but that "there are cases supporting the notion that an entity which itself meets the definition of 'debt collector' may be held vicariously liable for unlawful collection activities carried out by another on its behalf.'" Given this, summary judgment for D on this issue was held to be "inappropriate."

"ascertainable loss" under the state consumer protection law, 73 P.S. sec. 2270.1 et seq.
Defendants claimed that Plaintiff did not suffer an "ascertainable loss of money or property" and thus could not recover damages under the state consumer protection law, now known as Fair Credit Extension Uniformity Act (FCEUA), 73 P.S. sec. 2270.1 et seq. Noting that Plaintiff had stated a claim under the FDCPA, the court summarily rejected this claim, stating that "[i]t remains for [plaintiff] to present to a jury her 'ascertainable damages' for which she may recover 'actual damages or one hundred dollars ($100), which is greater.'"

defamation and civil conspiracy
The court also rejected defendants' summary judgment motion on these issues, noting a "genuine issue of material fact" on the defamation claim, and that "[q]uestions are raised which prevent" such action on the conspiracy claim.

Donald Marritz
MidPenn Legal Services

housing discrimination - race - predatory lending

McGlawn v. Pa. Human Relations Commn. - Cmwlth. Court - January 13, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/2763CD04_1-13-06.pdf

In a case of first impression, the court held that the Pa. Human Relations Act (PHRA), 43 P.S. 955(h), extends to a sub-prime mortgage broker's predatory lending activities such as reverse redlining. The court relied on federal precedent under the Fair Housing Act, 42 USC 3605, which is very similar to the PHRA, Hargraves v. Capital City Mortgage Corp., 140 F.Supp. 2d (DDC 2000). The court found that the evidence showed that the broker's lending practices and terms were predatory and unfair and that the broker intentionally targeted the plaintiff and the class because of their race, and that the practices had a disparate impart on the basis of race.

predatory character of the loans
The case has an extensive discussion of predatory lending, defining it as including: a) unreasonably high interest rates (more than point points above prime); b) loans based on the value of the asset securing the loan rather than the borrower's ability to repay; c) excessive loan servicing fees; d) targeting of a certain population on unfair or onerous terms which do not meet the borrower's needs; e) a strong likelihood that the borrower will be unable to repay the loan; f) balloon payments; g) prepayment penalties; etc etc.

broker liability
The court rejected the broker's argument that the it should not be liable because it had not approved the loans or actually loaned money. The court noted that the broker was "significantly involved in making the loan" as the middleman who creates the loan opportunity. The customer relies on the broker and expect that the broker will be able to get the best available deal. The borrower deals exclusively with the broker and never actually meets the lender; in the borrower's mind, the broker is the lender. A mortgage broker owes a fiduciary duty to its customers. In re Barker, 251 B.R. 250 (ED Pa. 2000). The PHRA applies to brokers. The broker's activities were a substantial part of the loan transactions at issue.

discrimination
There was substantial evidence, including extensive advertising in the African-American community, a) that the broker intentionally targeted a protected class and b) that its policies and practices had a disparate impart on the basis of race. The PHRC established a prima facie case and rebuttable presumption of discrimination which the broker failed to rebut with some legitimate non-discriminatory reasons for its actions or that its lending practices were legitimate.

damages
The court affirmed the part of the PHRA damage award consisting of monies paid to the broker out of the loan proceeds for items benefiting the broker but not the lender. The court reversed the damage award for the difference between the total interest on the predatory loan v. what the borrowers would pay on a loan at the prevailing rate, due to problems with defining the time frame and the proper credit rates that would be available to the borrowers. However, the court held that the borrowers were entitled to recover damages of this nature. The court also upheld the PHRA's authority to award damages for embarrassment and humiliation, as well as the PHRA's award of a civil penalty to each borrower/complainant.

Donald Marritz
MidPenn Legal Services

employment - ADEA - FRCivP 6(e) - applic. to EEOC right-to-sue letters

DeFrancesco v. Weir Hazleton - ED Pa. - December 20, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1513P.pdf

Plaintiff filed an age discrimination complaint in court on the 92nd day after his EEOC right-to-sue letter was mailed to him. The lower court initially applied FRCivP 6(e), which provides for an extra 3 days to file when a document is mailed.

On a motion for reconsideration by the defendant-employer, however, the district court noted that a 2001 amendment to Rule 6(e) made it applicable only to pleadings, motions, and other court papers, i.e., not a document such as an EEOC right-to-sue letter.

The court held that the weight of judicial authority would justify continued application of the 3-day mailing to EEOC right-so-sue letters, given its consistent continued application even after the amendment to Rule 6(e), but pointed out a "tension...between Rule 6(e)'s amendment...and its continued application to EEOC right-to-sue letters....[W]e are presented with a jurisprudential Mobius strip.

The district court certified the case for interlocutory appeal to the 3d Circuit to answer the question: "Does Federal Rule of Civil Procedure 6(e), as amended effective December 1, 2001, continue to apply to EEOC right-to-sue letters?"

Donald Marritz
MidPenn Legal Services

consumer - TILA - disclosures - creditor v. 3d party

Vallies v. Sky Bank - 3d Cir. - January 5, 2006

http://www.ca3.uscourts.gov/opinarch/051002p.pdf

Held: Single creditor bank must make all TILA disclosures and cannot rely on independent disclosure of required information by a third party seller, a car dealer

Creditor bank violated the TILA when it excluded certain debt cancellation fees from the calculation of the finance charge w/o disclosing the amount of the fees and that cancellation coverage was optional, despite the fact that the disclosures were ultimately made by a non-creditor third party, a car dealer from whom plaintiff bought a vehicle. The car dealer and bank acted independently of each other. The dealer was not the bank's agent.

The TILA in plain terms mandates that the "creditor" to make the required disclosures. The Act "clearly vests the duty of disclosure on the, and only on the, actual creditor and not on any third party to the credit transaction." The "creditor, and the creditor alone, is required to disclose...required information." The "clear language and meaning of the TILA [requires] that all disclosures be made by a single creditor....the actual creditor and not some third party." The "TILA places a clear and affirmative duty on the actual creditor itself to disclose any and all required information....[W]here the creditor fails to disclose this information, it has violated TILA regardless of the ultimate receipt of information." The court rejected the notion that its conclusion was "hypertechnical...or overly formalistic. The creditor need only follow the law...."

Donald Marritz
MidPenn Legal Services