Yellow Breeches Educ. Center v. UCBR - Cmwtlh. Court January 12, 2009 - unreported mem. decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1291CD08_1-12-09.pdf
Claimant had good cause to quit her job where the employer, in an abusive manner, unjustly accused her of insubordination.
A claimant need not indefinitely subject herself to unjust accusations and abusive conduct. First Federal Savings Bank v. UCBR, 957 A.2d 811 (Pa. Cmwlth. 2008). However, resentment of a reprimand, absent unjust accusations, profane language or abusive conduct, does not amount to a necessitous and compelling cause. Id. Here, the UCBR found that Claimant was subject to unjust accusations and abusive conduct prior to Claimant’s leaving her employment.
The court distinguished St. Barnabas, Inc. v. UCBR, 525 A.2d 885 (Pa. Cmwlth. 1987), where it had not found abusive conduct when a supervisor made an unjust accusation against an employee and, in doing so, yelled at the employee with his office door ajar. In St. Barnabas, the employer had a handbook that required employees to report problems to higher management. There was no such policy here. Moreover, unlike the employee in St. Barnabas, Claimant made a good faith effort to resolve the problems with her supervisor by speaking directly with her. Therefore, St. Barnabas does not apply.
Monday, January 12, 2009
UC - vol. quit - marital, family, or domestic reasons - fiancée
Wagner v. UCBR - Cmwlth. Court - January 12, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1023CD08_1-12-09.pdf
The court held that a claimant had good cause to quit his job under the following "marital, family or domestic reasons."
He took 28 days leave from his job in Iraq to lend support to his fiancée, who was dealing with a contentious custody battle with an abusive ex-boyfriend, and a child who suffered from a congenital heart defect and microcephaly. Claimant left to return to Iraq but found that he was unable to handle the issues in his home life from that significant distance. He spoke to his manager to try to get a job in the US but was told none were available and that, in any event, he was not eligible for such a job even it it existed. He then resigned and returned home.
Family obligations can be sufficiently necessitous and compelling to entitle a claimant to unemployment compensation benefits. Wallace v. UCBR, 393 A.2d 43 (Pa. Cmwlth. 1978) (declared unconstitutional the section of the UC Law that disqualified from benefits claimants who voluntarily terminate their employment for marital, filial or domestic reasons).
The Supreme Court in Taylor v. UCBR, 474 Pa. 351, 359, 378 A.2d 829, 833 (1977) held that if a worker leaves his employment when he is compelled to do so by necessitous circumstances or because of legal or family obligations, his leaving is voluntary with good cause, and under the act he is entitled to benefits. The pressure of necessity, of legal duty, or family obligations, or other overpowering circumstances and his capitulation to them transform what is ostensibly voluntary unemployment into involuntary unemployment. Accord, Bliley Elec. Co. v. UCBR, 45 A.2d 898 (Pa. Super. 1946)); Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000) (claimant when he quit his job to return to live with his son, who was suffering from emotional and behavioral problems in his absence); Speck v. UCBR, 680 A.2d 27 (Pa. Cmwlth. 1996) (claimant quit his job when a transfer created a daily commute consisting of 337 miles each way and he was newly married, and the only child of a parent who needed his assistance from time to time due to a heart condition.)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1023CD08_1-12-09.pdf
The court held that a claimant had good cause to quit his job under the following "marital, family or domestic reasons."
He took 28 days leave from his job in Iraq to lend support to his fiancée, who was dealing with a contentious custody battle with an abusive ex-boyfriend, and a child who suffered from a congenital heart defect and microcephaly. Claimant left to return to Iraq but found that he was unable to handle the issues in his home life from that significant distance. He spoke to his manager to try to get a job in the US but was told none were available and that, in any event, he was not eligible for such a job even it it existed. He then resigned and returned home.
Family obligations can be sufficiently necessitous and compelling to entitle a claimant to unemployment compensation benefits. Wallace v. UCBR, 393 A.2d 43 (Pa. Cmwlth. 1978) (declared unconstitutional the section of the UC Law that disqualified from benefits claimants who voluntarily terminate their employment for marital, filial or domestic reasons).
The Supreme Court in Taylor v. UCBR, 474 Pa. 351, 359, 378 A.2d 829, 833 (1977) held that if a worker leaves his employment when he is compelled to do so by necessitous circumstances or because of legal or family obligations, his leaving is voluntary with good cause, and under the act he is entitled to benefits. The pressure of necessity, of legal duty, or family obligations, or other overpowering circumstances and his capitulation to them transform what is ostensibly voluntary unemployment into involuntary unemployment. Accord, Bliley Elec. Co. v. UCBR, 45 A.2d 898 (Pa. Super. 1946)); Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000) (claimant when he quit his job to return to live with his son, who was suffering from emotional and behavioral problems in his absence); Speck v. UCBR, 680 A.2d 27 (Pa. Cmwlth. 1996) (claimant quit his job when a transfer created a daily commute consisting of 337 miles each way and he was newly married, and the only child of a parent who needed his assistance from time to time due to a heart condition.)
Friday, January 09, 2009
admin. law - due process - discovery
Vaders v. State Horse Racing Commn. - Cmwlth. Cour - January 9, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/703CD08_1-9-09.pdf
due process - In an administrative hearing, due process requires, at a minimum, notice and the opportunity to be heard. See Section 504 of the Administrative Agency Law, 2 Pa.C.S. § 504; Grossman v. State Bd. of Psychology, 825 A.2d 748 (Pa. Cmwlth. 2003); and Gruff v. Dep’t of State, 913 A.2d 1008 (Pa. Cmwlth. 2006).
discovery - Discovery, as provided for in the Pennsylvania Rules of Civil Procedure for court proceedings, is not made available in administrative proceedings.
Rule 35.142(a) of the General Rules of Admin. Practice and Procedure 1 Pa. Code § 35.142(a) http://www.pacode.com/secure/data/001/chapter35/s35.142.html allows parties to request subpoenas for the attendance of witnesses or production of documents upon written application to the agency’s head or oral application at a hearing. Weinberg v. Ins. Dep’t, 398 A.2d 1120 (Pa. Cmwlth. 1979).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/703CD08_1-9-09.pdf
due process - In an administrative hearing, due process requires, at a minimum, notice and the opportunity to be heard. See Section 504 of the Administrative Agency Law, 2 Pa.C.S. § 504; Grossman v. State Bd. of Psychology, 825 A.2d 748 (Pa. Cmwlth. 2003); and Gruff v. Dep’t of State, 913 A.2d 1008 (Pa. Cmwlth. 2006).
discovery - Discovery, as provided for in the Pennsylvania Rules of Civil Procedure for court proceedings, is not made available in administrative proceedings.
Rule 35.142(a) of the General Rules of Admin. Practice and Procedure 1 Pa. Code § 35.142(a) http://www.pacode.com/secure/data/001/chapter35/s35.142.html allows parties to request subpoenas for the attendance of witnesses or production of documents upon written application to the agency’s head or oral application at a hearing. Weinberg v. Ins. Dep’t, 398 A.2d 1120 (Pa. Cmwlth. 1979).
UC - willful misconduct - failure to follow employer directive to attent meeting
Bonawitz v. UCBR - Cmwlth Court - Janaury 9, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1027CD08_1-9-09.pdf
“Where an employee is discharged for refusing or failing to follow an employer’s directive, both the reasonableness of the demand and the reasonableness of the employee’s refusal must be examined.” Dougherty v. UCBR, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).
Where an employee’s action is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. UCBR, 450 A.2d 305 (Pa. Cmwlth. 1982). “In other words, if there was ‘good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.” Id. at 308 (citation omitted).
Under some circumstances, a claimant’s mistaken belief can constitute good cause justifying otherwise willful misconduct. Caterpillar, Inc. v. UCBR, 654 A.2d 199 (Pa. Cmwlth. 1995). However, incorrect subjective beliefs as to legal rights do not establish good cause for willful misconduct. Simpson.
Here, the Board did not find that Claimant had a mistaken belief as to the subject of the meeting. Instead, the Board determined Claimant failed to carry his burden to establish good cause for two reasons: [T]he employer credibly established that the claimant had proper representation present since a union steward was already in his office and another one was on the way.
Furthermore, the employer stated that no union representation was necessary, since the employer was not required to have union representation at a counseling session. Clearly, the Board made all credibility findings in favor of the Employer and none in favor of the Claimant. Also, the Board reasoned that any need for union representation was satisfied, regardless of the subject of the meeting.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1027CD08_1-9-09.pdf
“Where an employee is discharged for refusing or failing to follow an employer’s directive, both the reasonableness of the demand and the reasonableness of the employee’s refusal must be examined.” Dougherty v. UCBR, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).
Where an employee’s action is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. UCBR, 450 A.2d 305 (Pa. Cmwlth. 1982). “In other words, if there was ‘good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.” Id. at 308 (citation omitted).
Under some circumstances, a claimant’s mistaken belief can constitute good cause justifying otherwise willful misconduct. Caterpillar, Inc. v. UCBR, 654 A.2d 199 (Pa. Cmwlth. 1995). However, incorrect subjective beliefs as to legal rights do not establish good cause for willful misconduct. Simpson.
Here, the Board did not find that Claimant had a mistaken belief as to the subject of the meeting. Instead, the Board determined Claimant failed to carry his burden to establish good cause for two reasons: [T]he employer credibly established that the claimant had proper representation present since a union steward was already in his office and another one was on the way.
Furthermore, the employer stated that no union representation was necessary, since the employer was not required to have union representation at a counseling session. Clearly, the Board made all credibility findings in favor of the Employer and none in favor of the Claimant. Also, the Board reasoned that any need for union representation was satisfied, regardless of the subject of the meeting.
UC- willful misconduct - intentional v. negligent conduct
Appleyard v. UCBR - Cmwlth. Court - January 8, 2009 - unreported en banc 4-3 decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/653CD08_1-8-09.pdf
Pharmacy technician held guilty of willful misconduct for failure to run prescription through scanning device, even absent evidence or finding that she acted either intentionly or mistakenly. The UCBR found that she intentionally skipped the scanning process to save time, in a rush situation. Given that, the court held that it was within the power of the Board to infer that claimant's actions were willful and not negligent or inadvertent.
"Given that no one other than Claimant knew whether she intentionally or mistakenly failed to follow the procedure, we cannot say the Board’s inference was unreasonable. Thus, given the Board’s role as the ultimate finder of fact, we are bound by the Board’s reasonable inference that Claimant deliberately violated the scanning policy because she was in such a hurry. In short, Claimant’s conduct, as a matter of law, constituted willful misconduct."
Dissent - There was a strong dissent, which cited employer testimony, admitting specifically ("I can't answer that.") that it could not determine, from what it knew, whether claimant had refused to follow the procedure or forgot to do so, or whether claimant's actions were unintentional and inadvertent."
" Employer’s witness was unable to testify as to whether Claimant deliberately violated Employer’s scanning rule. In fact, Employer’s witness stated that he hoped Claimant’s violation of the rule was not intentional. Such testimony is ironic given Employer’s burden to prove that Claimant’s violation of the scanning policy was intentional.
"An employer cannot establish willful misconduct merely by showing that a claimant committed a negligent act. Navickas v. UCBR, 567 Pa. 298, 787 A.2d 284 (2001). Thus, Employer could only meet its burden of proving a deliberate violation of the scanning rule through Claimant’s testimony. Claimant testified in her defense of the charge of willful misconduct that she grabbed the medicine without first scanning the bottle because she was “in a rush” to fill the prescription so that the delivery driver could leave on time.
"Claimant’s testimony establishes that her intention was to further Employer’s interest in seeing that customers receive their prescriptions in a timely manner.4 However, Claimant does not indicate whether, while in a rush to provide good customer service, Claimant deliberately skipped the scanning to save time or merely forgot about the relatively new scanning procedure. Thus, it is impossible to determine from Claimant’s testimony whether her violation of Employer’s scanning policy was intentional or negligent. The majority states, “Significantly … Claimant did not respond that she had forgotten to scan the medicine bottle or that her failure was inadvertent.” However, it was not Claimant’s burden to prove that her violation of the scanning policy was unintentional."
" Employer had to prove that Claimant deliberately violated the scanning rule, but Employer never asked Claimant whether she gave any thought to the rule while she was rushing to fill the prescription. Thus, I submit that Employer failed to meet its burden of proof.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/653CD08_1-8-09.pdf
Pharmacy technician held guilty of willful misconduct for failure to run prescription through scanning device, even absent evidence or finding that she acted either intentionly or mistakenly. The UCBR found that she intentionally skipped the scanning process to save time, in a rush situation. Given that, the court held that it was within the power of the Board to infer that claimant's actions were willful and not negligent or inadvertent.
"Given that no one other than Claimant knew whether she intentionally or mistakenly failed to follow the procedure, we cannot say the Board’s inference was unreasonable. Thus, given the Board’s role as the ultimate finder of fact, we are bound by the Board’s reasonable inference that Claimant deliberately violated the scanning policy because she was in such a hurry. In short, Claimant’s conduct, as a matter of law, constituted willful misconduct."
Dissent - There was a strong dissent, which cited employer testimony, admitting specifically ("I can't answer that.") that it could not determine, from what it knew, whether claimant had refused to follow the procedure or forgot to do so, or whether claimant's actions were unintentional and inadvertent."
" Employer’s witness was unable to testify as to whether Claimant deliberately violated Employer’s scanning rule. In fact, Employer’s witness stated that he hoped Claimant’s violation of the rule was not intentional. Such testimony is ironic given Employer’s burden to prove that Claimant’s violation of the scanning policy was intentional.
"An employer cannot establish willful misconduct merely by showing that a claimant committed a negligent act. Navickas v. UCBR, 567 Pa. 298, 787 A.2d 284 (2001). Thus, Employer could only meet its burden of proving a deliberate violation of the scanning rule through Claimant’s testimony. Claimant testified in her defense of the charge of willful misconduct that she grabbed the medicine without first scanning the bottle because she was “in a rush” to fill the prescription so that the delivery driver could leave on time.
"Claimant’s testimony establishes that her intention was to further Employer’s interest in seeing that customers receive their prescriptions in a timely manner.4 However, Claimant does not indicate whether, while in a rush to provide good customer service, Claimant deliberately skipped the scanning to save time or merely forgot about the relatively new scanning procedure. Thus, it is impossible to determine from Claimant’s testimony whether her violation of Employer’s scanning policy was intentional or negligent. The majority states, “Significantly … Claimant did not respond that she had forgotten to scan the medicine bottle or that her failure was inadvertent.” However, it was not Claimant’s burden to prove that her violation of the scanning policy was unintentional."
" Employer had to prove that Claimant deliberately violated the scanning rule, but Employer never asked Claimant whether she gave any thought to the rule while she was rushing to fill the prescription. Thus, I submit that Employer failed to meet its burden of proof.
Thursday, January 08, 2009
HEMAP - reasonable prospect
Abess v. PHFA - Cmwlth. Court - January 8, 2009 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1035CD08_1-8-09.pdf
Applicant denied HEMAP mortgage loan assistance for failure to prove that he could resume full mortgage payments within applicable time.
To qualify for a HEMAP loan, a homeowner must meet all of the eligibility requirements set forth in Section 404c, 35 P.S. §1680.404c of the Homeowner’s Emergency Mortgage Assistance Act (Act), Act of December 23, 1983, P.L. 385, No. 91, as amended, 35 P.S. §1680.401c-§1680.410c.
That section provides that: (a) No assistance may be made with respect to a mortgage or mortgagor under this article unless all of the following are established:
(5) The agency has determined that there is a reasonable prospect that the mortgagor will be able to resume full mortgage payments within twenty-four (24) months after the beginning of the period for which assistance payments are provided under this article and pay the mortgage or mortgages in full by its maturity date or by a later date agreed to by the mortgagee or mortgagees for completing mortgage payments. (Emphasis added.) Section 404c of the Act, 35 P.S. §1680.404c(a)(5). (emphasis added)
Applicant's evidence about his work record showed that he had been self-employed in a number of businesses, but that none of those businesses generated any significant income. "Given the fact that those businesses failed to generate any substantial income in the past, and the fact that Petitioner’s expenses and mortgage payments far exceeded his income, the Agency had no other choice but to find that there was no reasonable prospect for him to resume full mortgage payments within 24 months." See Cullins v. PHFA, 623 A.2d 951 (Pa. Cmwlth. 1993); Koch v. PHFA, 505 A.2d 649 (Pa. Cmwlth. 1986).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1035CD08_1-8-09.pdf
Applicant denied HEMAP mortgage loan assistance for failure to prove that he could resume full mortgage payments within applicable time.
To qualify for a HEMAP loan, a homeowner must meet all of the eligibility requirements set forth in Section 404c, 35 P.S. §1680.404c of the Homeowner’s Emergency Mortgage Assistance Act (Act), Act of December 23, 1983, P.L. 385, No. 91, as amended, 35 P.S. §1680.401c-§1680.410c.
That section provides that: (a) No assistance may be made with respect to a mortgage or mortgagor under this article unless all of the following are established:
(5) The agency has determined that there is a reasonable prospect that the mortgagor will be able to resume full mortgage payments within twenty-four (24) months after the beginning of the period for which assistance payments are provided under this article and pay the mortgage or mortgages in full by its maturity date or by a later date agreed to by the mortgagee or mortgagees for completing mortgage payments. (Emphasis added.) Section 404c of the Act, 35 P.S. §1680.404c(a)(5). (emphasis added)
Applicant's evidence about his work record showed that he had been self-employed in a number of businesses, but that none of those businesses generated any significant income. "Given the fact that those businesses failed to generate any substantial income in the past, and the fact that Petitioner’s expenses and mortgage payments far exceeded his income, the Agency had no other choice but to find that there was no reasonable prospect for him to resume full mortgage payments within 24 months." See Cullins v. PHFA, 623 A.2d 951 (Pa. Cmwlth. 1993); Koch v. PHFA, 505 A.2d 649 (Pa. Cmwlth. 1986).
Monday, January 05, 2009
zoning - standing - "close proximity"
Laughman v. Zoning Hearing Board - Cmwlth. Court - January 5, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/159CD08_1-5-09.pdf
Property was held to be not in "close proximity" to the zoning area, therefore owner did not have standing to question the zoning decision.
Generally, in order to establish standing as an “aggrieved person,” it must be shown that the person has a substantial, direct and immediate interest in the claim sought to be litigated. A substantial interest is one in which there is some discernible adverse effect to some interest other than an abstract interest all citizens have, and a direct interest requires a showing that the matter complained of causes harm to the party’s interest, though not necessarily a pecuniary interest.
Immediacy requires that the interest is something more than a “remote” consequence and centers on a causal nexus between the action complained of and the injury to the party challenging it....For a party to be “aggrieved,” the interest of the party who will be affected by the alleged illegal law must be distinguishable from the interests shared by all citizens.
However, the Commonwealth Court has held tat a property owner need not establish pecuniary or financial loss if his property is located in close proximity to the subject property because the zoning decision is presumed to have an effect on the property owner’s property.
Obviously, property that is adjacent to or abuts the zoning area in question is in close proximity for standing purposes. In this case, the petitioner's commercial properties are located two miles from the district, his personal residence is almost a full mile away, and his rental residential properties are 8/10 of a mile awayict. Because these properties are not in close proximity to the subject property, without a showing of some sort of direct injury, he lacks standing to challenge the zoning amendment.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/159CD08_1-5-09.pdf
Property was held to be not in "close proximity" to the zoning area, therefore owner did not have standing to question the zoning decision.
Generally, in order to establish standing as an “aggrieved person,” it must be shown that the person has a substantial, direct and immediate interest in the claim sought to be litigated. A substantial interest is one in which there is some discernible adverse effect to some interest other than an abstract interest all citizens have, and a direct interest requires a showing that the matter complained of causes harm to the party’s interest, though not necessarily a pecuniary interest.
Immediacy requires that the interest is something more than a “remote” consequence and centers on a causal nexus between the action complained of and the injury to the party challenging it....For a party to be “aggrieved,” the interest of the party who will be affected by the alleged illegal law must be distinguishable from the interests shared by all citizens.
However, the Commonwealth Court has held tat a property owner need not establish pecuniary or financial loss if his property is located in close proximity to the subject property because the zoning decision is presumed to have an effect on the property owner’s property.
Obviously, property that is adjacent to or abuts the zoning area in question is in close proximity for standing purposes. In this case, the petitioner's commercial properties are located two miles from the district, his personal residence is almost a full mile away, and his rental residential properties are 8/10 of a mile awayict. Because these properties are not in close proximity to the subject property, without a showing of some sort of direct injury, he lacks standing to challenge the zoning amendment.
tax sale - standing
Fongsue v. Tax Claim Bureau - Cmwlth. Court - January 5, 2008 - unreported mem. decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1229CD07_1-5-09.pdf
Party who purchased property subsequent to tax claim tax does not have standing to petition to set aside the sale, since he was not the "owner" under 72 P.S. § 5860.607(a) at the time of the tax sale.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1229CD07_1-5-09.pdf
Party who purchased property subsequent to tax claim tax does not have standing to petition to set aside the sale, since he was not the "owner" under 72 P.S. § 5860.607(a) at the time of the tax sale.
Wednesday, December 31, 2008
consumer - state UDAP claims - federal court - removal
Byrd v. Car and SUV Outlet, et al. - ED Pa. - December 29, 2008
http://www.paed.uscourts.gov/documents/opinions/08D1533P.pdf
Plaintiff sued defendant, from which he bought a used car, for various alleged state-law causes of actions, including one under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, which claim alleged several distinct violations, including assertions that Defendants violated the UTPCPLby breaching two federal statutes, the Truth in Lending Act and the Equal Credit Opportunity Act. Defendants sought to remove the case to federal court.
The court refused the motion to remove, holding that it did not have jurisdiction, since plaintiff had sought relief only under state law, not federal law, which were "merely two theories on which Plaintiff plans to proceed to establish a state law UTPCPL violation."
The court also held that it could still have jurisdiction if “the vindication of [Plaintiff’s] right[s] under state law necessarily turned on some construction of federal law” but held that “the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction. The federal issue must be “an essential one in the forefront of the case and not collateral, peripheral, or remote”
The federal issues in this case were held to be "not essential to establishing Plaintiff’s right to relief....The TILA and ECOA violations are merely two theories, in addition to the various theories based on state law, that Plaintiff has asserted to establish his right to relief under the UTPCPL. This is insufficient, however, to establish federal jurisdiction."
http://www.paed.uscourts.gov/documents/opinions/08D1533P.pdf
Plaintiff sued defendant, from which he bought a used car, for various alleged state-law causes of actions, including one under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, which claim alleged several distinct violations, including assertions that Defendants violated the UTPCPLby breaching two federal statutes, the Truth in Lending Act and the Equal Credit Opportunity Act. Defendants sought to remove the case to federal court.
The court refused the motion to remove, holding that it did not have jurisdiction, since plaintiff had sought relief only under state law, not federal law, which were "merely two theories on which Plaintiff plans to proceed to establish a state law UTPCPL violation."
The court also held that it could still have jurisdiction if “the vindication of [Plaintiff’s] right[s] under state law necessarily turned on some construction of federal law” but held that “the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction. The federal issue must be “an essential one in the forefront of the case and not collateral, peripheral, or remote”
The federal issues in this case were held to be "not essential to establishing Plaintiff’s right to relief....The TILA and ECOA violations are merely two theories, in addition to the various theories based on state law, that Plaintiff has asserted to establish his right to relief under the UTPCPL. This is insufficient, however, to establish federal jurisdiction."
UC - willful misconduct - employer disciplinary policy - lack of Board findings
Jones v. UCBR - Cmwlth. Court - December 31, 2008 - unpublished memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1097CD08_12-31-08.pdf
Claimant was terminated for several alleged incidents of no-call/no-show.
inconsistent Board findings - The court found that "[b]ecause the Board's findings are inconsistent with the evidence, this matter must be remanded for clarification...and a new decision."
no finding on employer compliance with its own disciplinary policy - Claimant argued that the employer did not comply with its own disciplinary policy and that therefore "she should be allowed to return to work for Employer to comply with the policy." The court said that "[w]here an employer promulgates a specific disciplinary system, a discharge under that system may not be deemed to be for willful misconduct if the employer fails to follow the specified process. PMA Reinsurance Corp. v. UCBR, 558 A.2d 623 (Pa. Cmwlth. 1989).
The Board made no findings on whether Employer followed its policy by giving warnings to Claimant after the alleged occurrences of her no calls/no shows, and the Board did not mention the issue in its decision. This issue therefore must be addressed upon remand of this matter. Accordingly, the Board's order is vacated and this matter is remanded to the Board for a clarification of its inconsistent findings of fact and for additional fact finding, if necessary, as to whether Employer complied with its written policy requiring that it provide employees with verbal and written warnings in the case of no call/no show occurrences."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1097CD08_12-31-08.pdf
Claimant was terminated for several alleged incidents of no-call/no-show.
inconsistent Board findings - The court found that "[b]ecause the Board's findings are inconsistent with the evidence, this matter must be remanded for clarification...and a new decision."
no finding on employer compliance with its own disciplinary policy - Claimant argued that the employer did not comply with its own disciplinary policy and that therefore "she should be allowed to return to work for Employer to comply with the policy." The court said that "[w]here an employer promulgates a specific disciplinary system, a discharge under that system may not be deemed to be for willful misconduct if the employer fails to follow the specified process. PMA Reinsurance Corp. v. UCBR, 558 A.2d 623 (Pa. Cmwlth. 1989).
The Board made no findings on whether Employer followed its policy by giving warnings to Claimant after the alleged occurrences of her no calls/no shows, and the Board did not mention the issue in its decision. This issue therefore must be addressed upon remand of this matter. Accordingly, the Board's order is vacated and this matter is remanded to the Board for a clarification of its inconsistent findings of fact and for additional fact finding, if necessary, as to whether Employer complied with its written policy requiring that it provide employees with verbal and written warnings in the case of no call/no show occurrences."
Monday, December 29, 2008
mortgage foreclosure - abuse of process - elements/pleading
Birchall v. Countrywide Home Loans - ED Pa. - December 23, 2008
http://www.paed.uscourts.gov/documents/opinions/08D1517P.pdf
Claim for abuse of process dismissed for failure to allege sufficient facts. The bare allegation was that there was an abuse of process.
"To establish a claim for abuse of process, a plaintiff must show that the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed, (3) resulting in harm to the plaintiff. Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa. Super. 2002)."
http://www.paed.uscourts.gov/documents/opinions/08D1517P.pdf
Claim for abuse of process dismissed for failure to allege sufficient facts. The bare allegation was that there was an abuse of process.
"To establish a claim for abuse of process, a plaintiff must show that the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed, (3) resulting in harm to the plaintiff. Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa. Super. 2002)."
Thursday, December 18, 2008
pre-emption - cigarette warnings - FTC and state consumer protection laws
Altria Group v. Good - US Supreme Court - December 15, 2008
http://www.supremecourtus.gov/opinions/08pdf/07-562.pdf
From the court's syllabus....
Respondents, smokers of petitioners’ "light" cigarettes, filed suit, alleging that petitioners violated the Maine Unfair Trade Practices Act(MUTPA) by fraudulently advertising that their "light" cigarettes delivered less tar and nicotine than regular brands. The District Court granted summary judgment for petitioners, finding the state-lawclaim pre-empted by the Federal Cigarette Labeling and Advertising Act (Labeling Act). The First Circuit reversed, holding that the Labeling Act neither expressly nor impliedly pre-empts respondents’ fraud claim.
Held: Neither the Labeling Act’s pre-emption provision nor the Federal Trade Commission’s actions in this field pre-empt respondents’ statelaw fraud claim. Pp. 5–20.
(a) Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose. When the text of an expresspre-emption clause is susceptible of more than one plausible reading,courts ordinarily "accept the reading that disfavors pre-emption." The LabelingAct’s stated purposes are to inform the public of the health risks ofsmoking while protecting commerce and the economy from the ill effects of nonuniform requirements to the extent consistent with the first goal. Although fidelity to these purposes does not demand thepre-emption of state fraud rules, the principal question here is whether that result is nevertheless required by 15 U. S. C. §1334(b), which provides that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to theadvertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." Pp. 5–9.
(b) Respondents’ claim is not expressly pre-empted by §1334(b). As determined in several Supreme Court cases, the phrase "based onsmoking and health" modifies the state-law rule at issue rather than a particular application of that rule. The plurality in one case concluded that "the phrase ‘based on smoking and health’ fairly but narrowly construed" did not pre-empt the plaintiff’s commonlaw claim that cigarette manufacturers had fraudulently misrepresented and concealed a material fact, because the claim alleged a violation of a duty not to deceive—a duty that is not "based on" smokingand health. Respondents here also allege a violation of the duty not to deceive as codified in the MUTPA, which, like the common-law duty in Cipollone, has nothing to do with smoking and health. Respondents’ claim is not analogous to the "warning neutralization" claim found to be pre-empted in Cipollone. Reilly is consistent with Cipollone’s analysis. This Court disagrees with petitioners’ alternative argument that the express pre-emption framework of Cipollone and Reilly should be rejected.
(c) Various Federal Trade Commission decisions with respect to statements of tar and nicotine content do not impliedly pre-empt state deceptive practices rules like the MUTPA. Pp. 17–20. 501 F. 3d 29, affirmed and remanded.
STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined.
http://www.supremecourtus.gov/opinions/08pdf/07-562.pdf
From the court's syllabus....
Respondents, smokers of petitioners’ "light" cigarettes, filed suit, alleging that petitioners violated the Maine Unfair Trade Practices Act(MUTPA) by fraudulently advertising that their "light" cigarettes delivered less tar and nicotine than regular brands. The District Court granted summary judgment for petitioners, finding the state-lawclaim pre-empted by the Federal Cigarette Labeling and Advertising Act (Labeling Act). The First Circuit reversed, holding that the Labeling Act neither expressly nor impliedly pre-empts respondents’ fraud claim.
Held: Neither the Labeling Act’s pre-emption provision nor the Federal Trade Commission’s actions in this field pre-empt respondents’ statelaw fraud claim. Pp. 5–20.
(a) Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose. When the text of an expresspre-emption clause is susceptible of more than one plausible reading,courts ordinarily "accept the reading that disfavors pre-emption." The LabelingAct’s stated purposes are to inform the public of the health risks ofsmoking while protecting commerce and the economy from the ill effects of nonuniform requirements to the extent consistent with the first goal. Although fidelity to these purposes does not demand thepre-emption of state fraud rules, the principal question here is whether that result is nevertheless required by 15 U. S. C. §1334(b), which provides that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to theadvertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." Pp. 5–9.
(b) Respondents’ claim is not expressly pre-empted by §1334(b). As determined in several Supreme Court cases, the phrase "based onsmoking and health" modifies the state-law rule at issue rather than a particular application of that rule. The plurality in one case concluded that "the phrase ‘based on smoking and health’ fairly but narrowly construed" did not pre-empt the plaintiff’s commonlaw claim that cigarette manufacturers had fraudulently misrepresented and concealed a material fact, because the claim alleged a violation of a duty not to deceive—a duty that is not "based on" smokingand health. Respondents here also allege a violation of the duty not to deceive as codified in the MUTPA, which, like the common-law duty in Cipollone, has nothing to do with smoking and health. Respondents’ claim is not analogous to the "warning neutralization" claim found to be pre-empted in Cipollone. Reilly is consistent with Cipollone’s analysis. This Court disagrees with petitioners’ alternative argument that the express pre-emption framework of Cipollone and Reilly should be rejected.
(c) Various Federal Trade Commission decisions with respect to statements of tar and nicotine content do not impliedly pre-empt state deceptive practices rules like the MUTPA. Pp. 17–20. 501 F. 3d 29, affirmed and remanded.
STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined.
PFA - abuse - fear of imminent serious bodily injury; indecent assault
Thompson v. Thompson - Superior Court - December 16, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56023_08.pdf
Actual physical harm is not a prerequisite for the entry of a PFA order; the victim need only be in reasonable fear of imminent serious bodily injury. Fonner, 731 A.2d at 163. Mother establish that by evidence that
- Father forcibly grabbed Mother's breasts and crotch and yelled obscenities at their sons when they tried to intervene on her behalf.
- On one occasion Father came home drunk early in the morning, got into a fight with the older son, and then tried to hit him with his car.
- Father drinks and abuses cocaine, that she is afraid of Father, and that she fears for her children when they are in his custody.
- Father sideswiped eldest son with his car as son walked to school, because he was afraid that father was high on cocaine
- Father pushed and shoved youngest son and regularly threatened to hurt him
The court considered the sufficiency of the evidence in light of McCance v. McCance, 908 A.2d 905 (Pa. Super. 2006), where the Superior Court concluded that the evidence was sufficient to establish reasonable fear of imminent serious bodily injury where plaintiff testified that defendant stood in front of her car while she was in it and yelled obscenities and threats, that the defendant struck her car with such force that repairs were needed, and that the defendant had a drinking problem, anger issues and had been physically violent with other people in the past.
The evidence also establishes that Father has grabbed Mother in a sexual way when she arrived at his house to pick the children up, by grabbing her breasts and crotch while making lascivious comments such as, "You know you like it." This was indecent assault under 18 Pa. C.S.A. § 3126(a). "Accordingly, the evidence supports the PFA court’s determination."
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56023_08.pdf
Actual physical harm is not a prerequisite for the entry of a PFA order; the victim need only be in reasonable fear of imminent serious bodily injury. Fonner, 731 A.2d at 163. Mother establish that by evidence that
- Father forcibly grabbed Mother's breasts and crotch and yelled obscenities at their sons when they tried to intervene on her behalf.
- On one occasion Father came home drunk early in the morning, got into a fight with the older son, and then tried to hit him with his car.
- Father drinks and abuses cocaine, that she is afraid of Father, and that she fears for her children when they are in his custody.
- Father sideswiped eldest son with his car as son walked to school, because he was afraid that father was high on cocaine
- Father pushed and shoved youngest son and regularly threatened to hurt him
The court considered the sufficiency of the evidence in light of McCance v. McCance, 908 A.2d 905 (Pa. Super. 2006), where the Superior Court concluded that the evidence was sufficient to establish reasonable fear of imminent serious bodily injury where plaintiff testified that defendant stood in front of her car while she was in it and yelled obscenities and threats, that the defendant struck her car with such force that repairs were needed, and that the defendant had a drinking problem, anger issues and had been physically violent with other people in the past.
The evidence also establishes that Father has grabbed Mother in a sexual way when she arrived at his house to pick the children up, by grabbing her breasts and crotch while making lascivious comments such as, "You know you like it." This was indecent assault under 18 Pa. C.S.A. § 3126(a). "Accordingly, the evidence supports the PFA court’s determination."
UC - petition for review - preservation of issues
Patla v. UCBR - Cmwlth. Court - December 18, 2008
http://www.courts.state.pa.us/OpPosting/Cwealth/out/823CD08_12-18-08.pdf
The court granted the UCBR's motion to strike the appeal for failure of the petition for review to state appellant's objections with specificity, as required by Pa. R.A.P. 1513. The petition "merely that the determinations in the UCBR’s order were “not supported by the record,” and “that there is no legal basis for the UCBR’s denial of benefits.”
The court said that those objections did not "fairly embrace the willful misconduct issue, and failed to identify specific findings of fact that are allegedly unsupported by substantial evidence. Pearson v. UCBR, 954 A.2d 1260, 1263 (Pa. Cmwlth. 2008)."
To determine if a petition for review states a claimant’s objections with sufficient specificity, the court said that it looks to Pa. R.A.P. (Rule) 1513(d), which requires that a petition for review contain “a general statement of the objections to the order or other determination.” The general statement “will be deemed to include everysubsidiary question fairly comprised therein.” Rule 1513(d)(6).
However, more than a bare restatement of the scope of review is required, as the court held in Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005). In Deal, the court dismissed the petition for review because it stated only that the Board "was guilty of an error of law in deciding to reverse the decision of the Referee and deny benefits, and that there was a "a lack of substantial evidence to support the decision of the Board." It "did not contain any statement that fairly embraced the legal issue in the case and did not identify specific findings that were allegedly unsupported by substantial evidence; thus, the petition contained no issues for review."
"In the instant case, Claimant’s petition suffers from the same insufficiencies as the petition in Deal. Claimant’s Claimant’s Petition for Review offers no statement that this Court could deem “fairly embraces” willful misconduct, nor does it set forth what findings of fact were unsupported by the evidence. Accordingly, although developed in Claimant’s brief, his arguments regarding the issues will not be considered by this Court on appeal. See Deal."
In addition the claimant did not address any of the issues raised in the UCBR’s motion to strike the petition for review, despite the court’s direction to do so.
http://www.courts.state.pa.us/OpPosting/Cwealth/out/823CD08_12-18-08.pdf
The court granted the UCBR's motion to strike the appeal for failure of the petition for review to state appellant's objections with specificity, as required by Pa. R.A.P. 1513. The petition "merely that the determinations in the UCBR’s order were “not supported by the record,” and “that there is no legal basis for the UCBR’s denial of benefits.”
The court said that those objections did not "fairly embrace the willful misconduct issue, and failed to identify specific findings of fact that are allegedly unsupported by substantial evidence. Pearson v. UCBR, 954 A.2d 1260, 1263 (Pa. Cmwlth. 2008)."
To determine if a petition for review states a claimant’s objections with sufficient specificity, the court said that it looks to Pa. R.A.P. (Rule) 1513(d), which requires that a petition for review contain “a general statement of the objections to the order or other determination.” The general statement “will be deemed to include everysubsidiary question fairly comprised therein.” Rule 1513(d)(6).
However, more than a bare restatement of the scope of review is required, as the court held in Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005). In Deal, the court dismissed the petition for review because it stated only that the Board "was guilty of an error of law in deciding to reverse the decision of the Referee and deny benefits, and that there was a "a lack of substantial evidence to support the decision of the Board." It "did not contain any statement that fairly embraced the legal issue in the case and did not identify specific findings that were allegedly unsupported by substantial evidence; thus, the petition contained no issues for review."
"In the instant case, Claimant’s petition suffers from the same insufficiencies as the petition in Deal. Claimant’s Claimant’s Petition for Review offers no statement that this Court could deem “fairly embraces” willful misconduct, nor does it set forth what findings of fact were unsupported by the evidence. Accordingly, although developed in Claimant’s brief, his arguments regarding the issues will not be considered by this Court on appeal. See Deal."
In addition the claimant did not address any of the issues raised in the UCBR’s motion to strike the petition for review, despite the court’s direction to do so.
UC- failure to attend hearing - remand - good cause
Scott v. UCBR - Cmwlth. Court - December 18, 2008 - unreported memorandum opinion
http://www.courts.state.pa.us/OpPosting/Cwealth/out/985CD08_12-18-08.pdf
Held, that where good cause for a remand does not appear on the face of a request by a party who did not attend the initial hearing, it is error for the Board to grant a remand under 34 Pa. Code §101.24. In this case, claimant said that she did not attend because she couldn't find the location of the hearing, even though she had received proper and timely written notice.
The regulation provides: (a) If a party who did not attend a scheduled hearing subsequently gives written notice, which is received by the tribunal prior to the release of a decision, and it is determined by the tribunal that his failure to attend the hearing was for reasons which constitute “proper cause,” the case shall be reopened. Requests for reopening, whether made to the referee or Board, shall be in writing; shall give the reasons believed to constitute “proper cause” for not appearing …. (c) A request for reopening the hearing which is not received before the decision was mailed, but is received or postmarked on or before the 15th day after the decision of the referee was mailed to the parties shall constitute a request for further appeal to the Board and a reopening of the hearing, and the Board will rule upon the request. If the request for reopening is …. denied, the Board will append to the record the request, supporting material and the ruling on the request, so that it shall be subject to review in connection with any further appeal to the Commonwealth Court.
The Board has discretion regarding requests for remands to supplement a hearing record. Harrison v. UCBR, 457 A.2d 238 (Pa. Cmwlth. 1983). In reviewing a decision of the Board to deny a request for a remand, the court will reverse the Board’s decision only if the Board has abused its discretion. Department of Auditor General v. UCBR, 484 A.2d 829 (Pa. Cmwlth. 1984).
The usual purpose of a remand is to allow the submission of pertinent evidence that a party did not offer at the initial hearing because it was not available at that time. Brady v. UCBR, 539 A.2d 936 (Pa. Cmwlth. 1988). Thus, in Flores v. UCBR, 686 A.2d 66 (Pa. Cmwlth. 1996), the court held that the Board did not abuse its discretion in denying a request for a remand for the submission of evidence that had been available at the time of the original hearing. See also Fisher v. UCBR, 696 A.2d 895 (Pa. Cmwlth. 1997).
In Sanders v. UCBR, 524 A.2d 1031 (Pa. Cmwlth. 1987), the court held that the Board had abused its discretion in remanding a case for a second hearing where the employer had not offered good cause as to why it did not appear at the initial hearing. The Court held that it was not “necessary to remand a case to the Board for findings of good cause where, as here, the employer’s explanations on for its failure to appear do not--on their face--rise to the level of ‘proper cause’ as a matter of law.” Sanders, 524 A.2d at 1033 (citation omitted). See also, Ortiz v. UCBR, 481 A.2d 1383 (Pa. Cmwlth. 1984) (Board should decide case on the merits, without remand, where no proper cause for a remand.)
In this case, the reasoning in Sanders applies, despite the harsh result. If one assumes that claimant’s description of her efforts is accurate, the court held that she could have taken more reliable measures to ensure that she knew where she needed to be and how to get there. In this case, had she called the referee’s office and obtained information, she may have been able to avoid the mistake she made in her effort to appear at the hearing. Claimant did not take the necessary steps to protect her own interests. The Board did not abuse its discretion in denying claimant’s request to reopen the case and remand to the referee for additional testimony
http://www.courts.state.pa.us/OpPosting/Cwealth/out/985CD08_12-18-08.pdf
Held, that where good cause for a remand does not appear on the face of a request by a party who did not attend the initial hearing, it is error for the Board to grant a remand under 34 Pa. Code §101.24. In this case, claimant said that she did not attend because she couldn't find the location of the hearing, even though she had received proper and timely written notice.
The regulation provides: (a) If a party who did not attend a scheduled hearing subsequently gives written notice, which is received by the tribunal prior to the release of a decision, and it is determined by the tribunal that his failure to attend the hearing was for reasons which constitute “proper cause,” the case shall be reopened. Requests for reopening, whether made to the referee or Board, shall be in writing; shall give the reasons believed to constitute “proper cause” for not appearing …. (c) A request for reopening the hearing which is not received before the decision was mailed, but is received or postmarked on or before the 15th day after the decision of the referee was mailed to the parties shall constitute a request for further appeal to the Board and a reopening of the hearing, and the Board will rule upon the request. If the request for reopening is …. denied, the Board will append to the record the request, supporting material and the ruling on the request, so that it shall be subject to review in connection with any further appeal to the Commonwealth Court.
The Board has discretion regarding requests for remands to supplement a hearing record. Harrison v. UCBR, 457 A.2d 238 (Pa. Cmwlth. 1983). In reviewing a decision of the Board to deny a request for a remand, the court will reverse the Board’s decision only if the Board has abused its discretion. Department of Auditor General v. UCBR, 484 A.2d 829 (Pa. Cmwlth. 1984).
The usual purpose of a remand is to allow the submission of pertinent evidence that a party did not offer at the initial hearing because it was not available at that time. Brady v. UCBR, 539 A.2d 936 (Pa. Cmwlth. 1988). Thus, in Flores v. UCBR, 686 A.2d 66 (Pa. Cmwlth. 1996), the court held that the Board did not abuse its discretion in denying a request for a remand for the submission of evidence that had been available at the time of the original hearing. See also Fisher v. UCBR, 696 A.2d 895 (Pa. Cmwlth. 1997).
In Sanders v. UCBR, 524 A.2d 1031 (Pa. Cmwlth. 1987), the court held that the Board had abused its discretion in remanding a case for a second hearing where the employer had not offered good cause as to why it did not appear at the initial hearing. The Court held that it was not “necessary to remand a case to the Board for findings of good cause where, as here, the employer’s explanations on for its failure to appear do not--on their face--rise to the level of ‘proper cause’ as a matter of law.” Sanders, 524 A.2d at 1033 (citation omitted). See also, Ortiz v. UCBR, 481 A.2d 1383 (Pa. Cmwlth. 1984) (Board should decide case on the merits, without remand, where no proper cause for a remand.)
In this case, the reasoning in Sanders applies, despite the harsh result. If one assumes that claimant’s description of her efforts is accurate, the court held that she could have taken more reliable measures to ensure that she knew where she needed to be and how to get there. In this case, had she called the referee’s office and obtained information, she may have been able to avoid the mistake she made in her effort to appear at the hearing. Claimant did not take the necessary steps to protect her own interests. The Board did not abuse its discretion in denying claimant’s request to reopen the case and remand to the referee for additional testimony
Social Security - standard of proof
http://edocket.access.gpo.gov/2008/pdf/E8-30056.pdf
SUMMARY: We are amending our rules to clarify that we apply the preponderance of the evidence standard when we make determinations and decisions at all levels of our administrative review process.
These rules do not change our policy that the Appeals Council applies the substantial evidence standard when it reviews a decision by an administrative law judge (ALJ) to determine whether to grant a request for review.
We are also adding definitions of the terms ‘‘substantial evidence’’ and ‘‘preponderance of the evidence’’ for use in applying these rules.
DATES: These final rules are effective on January 20, 2009.
Note:
This rule change highlights the difference between standard of proof and standard of review. It is consistent with state law on the issues. “The degree of proof required to establish a case before an administrative tribunal is the same degree of proof used in most civil proceedings, i.e., a preponderance of the evidence.” Samuel J. Lansberry Inc v. PUC, 578 A.2d 600, 602 (Pa. Cmwlth. 1990). Accord, Steadman v. SEC, 450 U.S. 91 (1981) (discussing the proper standard of proof and the confusion between standard of proof and standard of review.
The proper standard of proof can be a constitutional matter and involve balancing of competing interests. See, e.g., Addington v. Texas, 441 U.S. 323 (1979); In Re Winship, 397 U.S. 357 (1970). In a Child Protective Services Law case, J.S. v. DPW, 596 A.2d 1114, 1116 n. 2 (Pa. 1991), the court suggested that the proper standard of proof in administrative hearings under that statute was “clear and convincing,” because the fundamental right to reputation under Article I, sec. 1, of the Pa. Constitution was at stake. See also, A.Y. v. DPW, 641 A.2d 1148, 1152, 1153-4 (discussing the importance of right to reputation). This is also the standard in welfare cases where fraud is being charged, 55 Pa. Code 275.31.
SUMMARY: We are amending our rules to clarify that we apply the preponderance of the evidence standard when we make determinations and decisions at all levels of our administrative review process.
These rules do not change our policy that the Appeals Council applies the substantial evidence standard when it reviews a decision by an administrative law judge (ALJ) to determine whether to grant a request for review.
We are also adding definitions of the terms ‘‘substantial evidence’’ and ‘‘preponderance of the evidence’’ for use in applying these rules.
DATES: These final rules are effective on January 20, 2009.
Note:
This rule change highlights the difference between standard of proof and standard of review. It is consistent with state law on the issues. “The degree of proof required to establish a case before an administrative tribunal is the same degree of proof used in most civil proceedings, i.e., a preponderance of the evidence.” Samuel J. Lansberry Inc v. PUC, 578 A.2d 600, 602 (Pa. Cmwlth. 1990). Accord, Steadman v. SEC, 450 U.S. 91 (1981) (discussing the proper standard of proof and the confusion between standard of proof and standard of review.
The proper standard of proof can be a constitutional matter and involve balancing of competing interests. See, e.g., Addington v. Texas, 441 U.S. 323 (1979); In Re Winship, 397 U.S. 357 (1970). In a Child Protective Services Law case, J.S. v. DPW, 596 A.2d 1114, 1116 n. 2 (Pa. 1991), the court suggested that the proper standard of proof in administrative hearings under that statute was “clear and convincing,” because the fundamental right to reputation under Article I, sec. 1, of the Pa. Constitution was at stake. See also, A.Y. v. DPW, 641 A.2d 1148, 1152, 1153-4 (discussing the importance of right to reputation). This is also the standard in welfare cases where fraud is being charged, 55 Pa. Code 275.31.
Monday, December 08, 2008
administrative law - commissions - powers
Deoria v. State Athletic Commn. - Cmwlth. Court - December 8, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1266CD08_12-8-08.pdf
A commission has the status set out in the Administrative Code of 1929, 71 P.S. §§51 - 732. As a statutorily created agency of the Commonwealth, a commission has only those powers expressly conferred upon it by statute or those powers which are necessarily implied from its express powers. DeMarco v. Department of Health, 397 A.2d 61 (Pa. Cmwlth. 1979) (Administrative agencies, being creatures of the legislature, are vested only with those powers conferred by the statute or such as are necessarily implied from a grant of such powers; where authority is conferred on such an extrajudicial body, the legislative grant of power to act in any particular case must be clear.); Human Relations Commission v. St. Joe Minerals Corp., 476 Pa. 302, 382 A.2d 731 (1978) (The power and authority to be exercised by administrative commissions must be conferred by legislative language clear and unmistakable. A doubtful power does not exist.). An agency must act within the strict and exact limits as statutorily defined. Id.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1266CD08_12-8-08.pdf
A commission has the status set out in the Administrative Code of 1929, 71 P.S. §§51 - 732. As a statutorily created agency of the Commonwealth, a commission has only those powers expressly conferred upon it by statute or those powers which are necessarily implied from its express powers. DeMarco v. Department of Health, 397 A.2d 61 (Pa. Cmwlth. 1979) (Administrative agencies, being creatures of the legislature, are vested only with those powers conferred by the statute or such as are necessarily implied from a grant of such powers; where authority is conferred on such an extrajudicial body, the legislative grant of power to act in any particular case must be clear.); Human Relations Commission v. St. Joe Minerals Corp., 476 Pa. 302, 382 A.2d 731 (1978) (The power and authority to be exercised by administrative commissions must be conferred by legislative language clear and unmistakable. A doubtful power does not exist.). An agency must act within the strict and exact limits as statutorily defined. Id.
real property - tax sale - redemption - timely petition
U.S. Bank Natl. Assn. v. Parker - Superior Court - December 8, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56038_08.pdf
Upon payment of all the necessary costs and fees, the owner of any property sold under tax or municipal claim may redeem the property at anytime within nine months of acknowledgement of the sheriff’s deed. 53 Pa. C. S. § 5293(a).
It is undisputed that the sheriff’s deed was acknowledged on March 19, 2007. Thus, Appellant had until December 19, 2007, in order to file her petition to redeem. Unfortunately for Appellant, she filed her petition on December 24, 2007, i.e., five days late.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56038_08.pdf
Upon payment of all the necessary costs and fees, the owner of any property sold under tax or municipal claim may redeem the property at anytime within nine months of acknowledgement of the sheriff’s deed. 53 Pa. C. S. § 5293(a).
It is undisputed that the sheriff’s deed was acknowledged on March 19, 2007. Thus, Appellant had until December 19, 2007, in order to file her petition to redeem. Unfortunately for Appellant, she filed her petition on December 24, 2007, i.e., five days late.
Friday, December 05, 2008
employment - public - suspension - due process
Dee v. Borough of Dunmore - 3d Cir. - December 5, 2008
http://www.ca3.uscourts.gov/opinarch/071720p.pdf
Public employee (fire fighter) had property and liberty interests in non-suspension without just cause under 42 USC 1983 and 53 P.S. § 46190. Case remanded for determination of whether there were exigent circumstances which justified suspension without prior notice and hearing.
http://www.ca3.uscourts.gov/opinarch/071720p.pdf
Public employee (fire fighter) had property and liberty interests in non-suspension without just cause under 42 USC 1983 and 53 P.S. § 46190. Case remanded for determination of whether there were exigent circumstances which justified suspension without prior notice and hearing.
Thursday, December 04, 2008
UC- vol. quit - voluntary retirement
Degosky v. UCBR - Cmwlth. Court - December 4, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1129CD08_12-4-08.pdf
Subjective, unsubstantiated fear of a layoff, plus offer of voluntary retirement package did not establish good cause to quit a job. In Staub v. UCBR, 673 A.2d 434, 437 (Pa. Cmwlth. 1996), the court held that speculation pertaining to an employer’s financial condition and future layoffs, however disconcerting, does not establish the requisite necessitous and compelling cause. Instead, the relevant inquiry is whether surrounding circumstances at the time an employee voluntarily leaves indicate a likelihood that fears about his or her job security will otherwise materialize, that serious impending threats to the employee’s job will be realized and that the employee’s belief that his job is imminently threatened is well founded. Moreover, while the fact that an employer has made an offer of retirement or other incentive package is important, it is not dispositive of the issue. There must be some additional circumstances existing at the time the employee accepts the offer, e.g., a lack of suitable continuing work, either currently or at a discernible point in time, together with statements or actions of the employer showing a likelihood of imminent layoff.
Here, Claimant's fear of loss of his job was "only a subjectively perceived possibility." He was "never informed that his job was in imminent danger and his supervisors informed him only that they did not know the status of his job, and further, there was evidence that continuing work was available to him. Other than his speculation that his job was in imminent danger because some of his work had been moved to Texas, there is no evidence that would prove that his concerns would be realized.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1129CD08_12-4-08.pdf
Subjective, unsubstantiated fear of a layoff, plus offer of voluntary retirement package did not establish good cause to quit a job. In Staub v. UCBR, 673 A.2d 434, 437 (Pa. Cmwlth. 1996), the court held that speculation pertaining to an employer’s financial condition and future layoffs, however disconcerting, does not establish the requisite necessitous and compelling cause. Instead, the relevant inquiry is whether surrounding circumstances at the time an employee voluntarily leaves indicate a likelihood that fears about his or her job security will otherwise materialize, that serious impending threats to the employee’s job will be realized and that the employee’s belief that his job is imminently threatened is well founded. Moreover, while the fact that an employer has made an offer of retirement or other incentive package is important, it is not dispositive of the issue. There must be some additional circumstances existing at the time the employee accepts the offer, e.g., a lack of suitable continuing work, either currently or at a discernible point in time, together with statements or actions of the employer showing a likelihood of imminent layoff.
Here, Claimant's fear of loss of his job was "only a subjectively perceived possibility." He was "never informed that his job was in imminent danger and his supervisors informed him only that they did not know the status of his job, and further, there was evidence that continuing work was available to him. Other than his speculation that his job was in imminent danger because some of his work had been moved to Texas, there is no evidence that would prove that his concerns would be realized.
Subscribe to:
Posts (Atom)