UC- willful misconduct - violation of employer rule - good cause

Roberts v. UCBR - Cmwlth. Court - June 8, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1989CD08_6-8-09.pdf

Claimant, a client care worker in a residential facility for persons with special needs, had good cause for his violation of an employer rule.

Claimant was directly responsible for the care of a “one-to-one” client who was subject to “close reach supervision … at all times due to behavioral concerns.” Employer’s rule required close supervision of one-to-one clients. However, these clients were alone and unattended between the hours of 11:00 p.m. and 7:00 a.m. except for checks every thirty minutes.

Good cause is established “where the action of the employee is justified or reasonable under the circumstances.” Frumento v. UCBR, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976). Precedent teaches that taking actions to advance a patient’s health and safety will constitute good cause to violate an employer’s work rule.

In this case, the need to retrieve Client’s breakfast provided Claimant good cause for his violation of Employer’s rule. Claimant had the responsibility to make sure Client was properly fed, and he testified that because pantry staff was often not available, client care workers routinely retrieve food from the kitchen for their clients and later put it away. Claimant argues that a “[f]ailure on my part to get and reserve my client food from the kitchen could keep him hungry until lunch.” Claimant acted in the best interests of both Client and Employer by going to the kitchen to secure Client’s breakfast leaving Client, who was secured in his bed with his bedrail in place, for a brief time -- five (5) minutes.

Even though the UCBR found all of the employer testimony credible, there was uncontradicted testimony from Claimant that Employer permitted and even required “one-to-one” clients to be left alone briefly, notwithstanding its close supervision rule. There was a question, therefore, about whether Claimant even violated Employer’s rule.

Assuming Employer’s rule was inflexible, however, Claimant showed good cause to violate it. Claimant was attending to a basic need of Client, having secured Client in his bed, while he left Client for approximately five minutes. The evidence established good cause for Claimant’s violation of the work rule and, thus, the Board erred in finding that Claimant’s actions constituted willful misconduct.

housing - reasonable accommodation - duty of HA in inquire - continuing duty of court to accept evidence

Lebanon County Housing Authority v. Landeck - Superior Court - February 27, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a27022_08.pdf

A court must consider evidence of a tenant's handicap up until time of trial. The common pleas court impropetly refused to accept evidence of the tenant's disability that was offered after the MDJ hearing. Tenant offered some evidence there and tried to offer more after the MDJ judgment. The tenant made clear consistent requests for accommodation, relating to mental problems which caused housekeeping concerns.

“It shall be unlawful to . . .discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or renter.” 42 U.S.C. § 3604(f)(1)(A).

“To establish a reasonable accommodation defense under the Fair Housing Act, the tenant must demonstrate that (1) she suffered from a ‘handicap’[4] (or ‘disability’), (2) the landlord knew or should have known of the disability, (3) an accommodation of the disability may be necessary to afford the tenant an equal opportunity to use and enjoy her apartment, (4) the tenant requested a reasonable accommodation, and (5) the landlord refused to grant a reasonable accommodation.” Douglas v. Kriegsfeld Corporation, 884 A.2d 1109, 1129 (D.C. 2005)

If, as the Authority asserts, it was unclear about what accommodation was being requested, the HA had a duty to “promptly respond” to the Tenant’s request. Douglas, 884 A.2d at 1122. The Douglas court explains: If the request is not sufficiently detailed to reveal the nature of that request, the Act-as properly interpreted-requires the landlord to ‘open a dialogue’ with the tenant, eliciting more information as needed, to determine what specifics the tenant has in mind and whether such accommodation would, in fact, be reasonable under the circumstances.

Tenant has established that she suffered from depression which is a “handicap” under the Fair Housing Act; that the Authority should have known of the handicap; that she requested a reasonable accommodation; and that the Authority refused to make the accommodation. To prevail under the Act, however, Tenant was also required to prove she was unable to maintain her unit as required by the terms of the lease because of her disability. The trial court erroneously prevented Tenant from presenting evidence in support of this final prong of her defense when it refused to consider evidence beyond a certian date or permit witnesses to testify.

The court remanded the case to the trial court for a new non-jury trial to permit tenant to present evidence in support of her assertion she was unable to satisfy the terms of the lease because of her handicap. If she proves her handicap caused the breach of the lease the Authority must produce rebuttal evidence that the requested accommodation was unreasonable before an eviction may be ordered.

CPA - license - revocation

Ake v. State Board of Accountancy - Cmwlth. Court (2-1) - May 20, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1103CD08_5-20-09.pdf

The court reversed the imposition of the maximum penality--revocation of a CPA's license--based on a 2002 Illinois felony conviction for a hate crime, consisting of a series of harassing phone calls to a YWCA director concerning the fact that she was a lesbian, something that was contrary to the appellant's religious, moral and ethical beliefs. The court held that the board had abused its discretion in imposing the maximum penalty, which had the effect of depriving appellant of any opportunity for reinstatement of his CPA license.

The court relied on the fact that

- the conviction was relatively remote in time;
- appellant had completed all of the conditions of his sentence and probation (14 days in jail, $2000 fine, 30 months probation, psychological counseling)
- the offense would have only been a misdemeanor in Pennsylvania
- the conduct was not of the type that is an "anathema to the accounting profession"
- there was no rehabilition requirement under the CPA law, but if there were, appellant was rehabilitated, having fulfilled each term of his Illinois sentence
- revocation is reserved for the "worst offenders"

The dissent thought that the board had acted within its discretion and had not abused it. It found that appellant's offense related to his moral character, which is a factor under the CPA law, and that it involved his honesty and integrity.

EAJA - attorney fees - substantially justified - totality of circumstances

Segers v. Astrue - ED Pa. - May 8, 2009

http://www.paed.uscourts.gov/documents/opinions/09D0537P.pdf

Noting that neither the Supreme Court nor the Third Circuit Court of Appeals has outlined the correct focus or level of generality for deciding whether the Commissioner’s position was “substantially justified,” and other courts have set forth differing approaches, the court adopted the this Court will adopt a "reasoned approach" in the “totality of the circumstances” method of analysis that examines the entirety of the government’s position in litigation when determining substantial justification, . See Roanoke River Basin Assoc. v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993); Jackson v. Chater, 94 F.3d 274, 278 (7th Cir. 1996); Williams, 595 F. Supp. 2d at 586; Corona, 431 F. Supp. 2d at 514. See also Williams v. Astrue, 595 F. Supp. 2d 582, 585-86 (E.D. Pa. 2009) (comparing the approaches of different courts); Corona, 431 F. Supp. 2d at 512-13 (E.D. Pa. 2006) (same).

In this case, "applying a 'totality of the circumstances' approach, it is clear that the Commissioner had (1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory it propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced. See Morgan 142 F.3d at 684. Accordingly, the Court is satisfied that the ALJ acted reasonably and the Commissioner’s position was substantially justified, and the Court denies Ms. Segers’s motion for attorney’s fees."

UC - appeal - filing by email - timeliness

Roman-Hutchinson v. UCBR - May 11, 2009 - Cmwlth. Court

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2112CD08_5-11-09.pdf

Appeal sent by e-mail which was not received until after the appeal deadline was not timely.

The risk of non-delivery of an e-mail appeal is on the appellant, 34 Pa. Code §101.82(b)(4)

The "common law 'mailbox rule', which provides that the depositing in the post office of a properly addressed letter with prepaid postage raises a natural presumption that the letter reached its destination by due course of mail, does not apply to appeals sent by e-mail. Under the “mailbox rule,” evidence that a letter has been mailed ordinarily will be sufficient to permit a fact finder to find that the letter was, in fact, received by the party to whom it was addressed.

admin. law - appeal - date of decision v. date of mailing

Ribaudo v. DPW - Supreme Court - April 29, 2009

majority - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-115-2008mo.pdf
dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-115-08do.pdf
reversing http://www.courts.state.pa.us/OpPosting/CWealth/out/351CD06_1-4-07.pdf

Held: A notice of adjudication that clearly advised the party of the starting and ending dates of the applicable appeal period, but did not specifically designate the date stamped on the notice as the notice’s mailing date, was held to be sufficient to trigger the start of the appeal period. Therefore, an appeal filed more than 8 months after the decision was untimely.

The statute in qeustion specified that the appeal period was to run from the date of the notice, not the date of mailing of the notice.

The court said that the "linchpin" in the case was its decision in Schmidt v. Commonwealth, 433 A2d 456 (Pa. 1981), where it "addressed whether a notice of adjudication, whose only indication of its date of mailing was a postmark, triggered the relevant appeal period. We construed the statutory language at issue in Schmidt as implying a duty on the part of the government agency to advise the taxpayer of the mailing date, and we concluded it would be “manifestly unjust” to dismiss a taxpayer’s appeal based on some internal departmental mailing date where the taxpayer was never informed of the mailing date."

The court said (and noted that appellant conceded that it "did not impose in Schmidt an absolute rule that all administrative agency notices must contain a mailing date which is specifically designated as such. Rather, Schmidt requires only that an agency’s notice of adjudication sufficiently inform the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights."

The court held that "DPW complied with Schmidt. It notified [appellant] of the starting date of the appeal period and advised appellant that if it disagreed with the findings contained in the audit report, it had “the right to ppeal by filing a written request for a hearing with [the Bureau] within 33 days of the date of this letter,” and the letter was date-stamped “MAR 31, 2004.” The combination of the letter’s content and the date-stamp was sufficient to put appellant on notice that the appeal had to be filed within 33 days of March 31, 2004 ─ “the date of this letter.” Moreover, this information comported with the relevant statute specifying that appeals must be filed within 33 days “of the date of the notice of the departmental action” rather than the date of mailing.

The court reaffirmed its approach in Schmidt, and held that "whether an agency’s notice of adjudication triggers the start of an appeal period depends on whether, consistent with the applicable statute, the notice sufficiently informs the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights. Because we find that the notice in this case was sufficient, the appeal to the Bureau was untimely."

abuse - expungement - proof of identity - collateral proceedings - standard of proof

C.S. v. DPW - Cmwlth. Court - May 1, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/426CD08_5-1-09.pdf

Welfare authorities in an expungement appeal could not rely on evidence in a dependency case to prove that appellants-parents abused their child, when the evidence in the dependency case was only "prima facie evidence that the parents were the abusers."

The court distinguished J.G. v. DPW, 795 A.2d 1089 (Pa. Cmwlth. 2002), where the identity of the perpetrator was established in a separate court proceeding, and clarified its opinion in K.R. v. DPW, 950 A2d 1069, 1072 (Pa. Cmwlth. 2008) to make clear that where "a founded report is based upon a judicial adjudication in a non-criminal proceeding, such as a dependency action, in which the court enters a finding that the child was abused, but does not issue a corresponding finding that the named perpetrator was responsible for the abuse, a named perpetrator is entitled to an administrative appeal before the secretary to determine whether the underlying adjudication of child abuse supports a ‘founded report’ of abuse."

The court also noted the different between dependency and expungement actions. In dependency cases, CYS needs to establish the fact of abuse by clear and convincing evidence, but the identity on the alleged abuser only by prima facie evidence.

"By contrast, in expungement proceedings, the county agency or DPW has the burden of proving by substantial evidence that the alleged perpetrator's conduct falls within one of the definitions of child abuse set forth in Section 6303(b)(1) of the CPSL....Section 6303(a) of the CPSL defines an "indicated report" as a child abuse report based on a determination by the county agency or the Department that, "substantial evidence of the alleged abuse exists." 23 Pa. C.S. § 6303(a).

For the purpose of an expungement proceeding, substantial evidence is "[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." Thus, the standard for determining the identity of a perpetrator in dependency matters is a significantly lower burden of proof than in expungement proceedings. The different burdens of proof set forth for the proceedings highlight the fundamentally different purposes that dependency proceedings and expungement proceedings serve." (emphasis added)

Note: The use of term "substantial evidence" in the statute is confusing and misleading. The definition is virtually the same as "preponderance of the evidence." "A preponderance of the evidence is defined as "the greater weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement for preponderance of the evidence." Raker v. Raker, 847 A.2d 720, 724 (Pa.Super. 2004)

In fact, there is a strong argument that since expungement cases involve the fundamental right of reputation under Article I, sec. 1, of the Pennsylvania Constitution, the standard of proof should be clear and convincing. As the majority noted, the "CPSL is geared more towards reporting perpetrators of abuse, which may adversely affect a perpetrator’s reputation and employment opportunities. A.Y. v. Department of Public Welfare, 537 Pa. 116, 125 n.7, 641 A.2d 1148, 1152 n.7 (1994); 23 Pa. C.S. § 6338(a).

As the Supreme Court in A.Y. explained, "Although less process is due in an administrative proceeding than where criminal charges have been brought, an administrative adjudication of suspected child abuse is of the most serious nature. Therefore, this society, which was founded upon, inter alia, its citizens' ‘inherent and indefeasible rights . . . of acquiring, possessing and protecting property and reputation,’ cannot blithely surrender those rights in the name of prosecutorial convenience." A.Y., 537 Pa. at 124, 641 A.2d at 1152.... Thus, the higher standard of proof required in an expungement proceeding to prove the identity of a perpetrator is reasonable in light of his "inherent and indefeasible rights" which may be negatively affected."

UC - willful misconduct - negligence v. breach of employer rule

Moran v. UCBR - Cmwlth. Cour - Ap[ril 27, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1659CD08_4-27-09.pdf

The court rejected claimant's argument that his failure to put the brake on his truck was merely negligence, under Navickas v. UCBR, 787 A.2d 284 (Pa. 2001), since claimant was fired not for a negligent error but rather for the violation of the work rule regarding putting the brake on trucks.

UC - appeal -proof of mailing - postage meter

Moran v. UCBR - Cmwlth. Cour - Ap[ril 27, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1659CD08_4-27-09.pdf

Employer's appeal was timely filed, where the date on the emvelope, from the the employer's postage meter, was within the appeal period, upholding the validity of 34 Pa. Code 101.82 and distinguishing Lin v. UCBR, 735 A.2d 697 (Pa. 1999), a pre-regulation decision.

adminative law - regulation v. statement of policy

Borough of Bedford, et al. v. DEP, et al. - Cmwlth. Court - April 14, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/160MD08_4-14-09.pdf

DEP's motion for summary judgment denied. DEP claimed that the relevant document was a statement of policy, 45 P.S. 1102(13). The Plaintiffs claimed that it was a regulation, 45 P.S. 1102(12). The court said that the statutory definitions "do little to separate a statement of policy from a regulation" and that the resolution of the legal issue would require factual development.

There is an extensive discussion about the important administrative law issue of whether an agency promulgation is a

- regulation, which has the force of law, establishes a "binding norm," and must be adopted according to a strict procedure - The "basic procedures by which an agency promulgates a regulation are set forth in the Commonwealth Documents Law. In essence, these procedures require an agency to give notice to the public of its proposed rule-making and an opportunity for the public to comment.11 See Eastwood Nursing, 910 A.2d at 141 n.13. However, this is only the beginning. The agency must also obtain the approval of the Attorney General and the General Counsel of a proposed regulation’s form and legality. Sections 204(b) and 301(10) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §§732-204(b) and 732-301(10). Finally, an agency’s regulation must also undergo legislative scrutiny in accordance with the Regulatory Review Act." - OR

- statement of policy, which does not have the force of law , but rather is "merely an announcement to the public of the policy which the agency hopes to implement in future rulemakings or adjudications. A general statement of policy, like a press release, presages an upcoming rulemaking or announces the course which the agency intends to follow in future adjudications....A general statement of policy, on the other hand, does not establish a ‘binding norm’…. A policy statement announces the agency’s tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. Id. at 349-350, 374 A.2d at 679 (quoting Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 33, 38 (1974)) (emphasis added)."

UC - petition for review - statement of objections

Shimp v. UCBR - Cmwlth. Court - March 30, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1798CD08_3-31-09.pdf

The pro se form petition for review stated that the "Board of Review should be reversed because (You must state with specificity why you believe the Board is in error)." Claimant did not make any allegation here but just attached a postal proof of mailing.

Claimant's failure to raise any allegation of error regarding the Board’s decision in the petition for review was a waiver and violated Pa.R.A.P. 1513(d), since there was no "general statement of the objections to the order or other determination." See Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996) (Commonwealth Court was correct in refusing to consider issues not fairly comprised from objections raised in petition for review); Jimoh v. UCBR, 902 A.2d 608 (Pa. Cmwlth. 2006) (issue not raised in the stated objections in the petition for review nor “fairly comprised therein” is waived and will not be addressed by this Court); Tyler v. UCBR, 591 A.2d 1164 (Pa. Cmwlth. 1991) (same).

arbitration - express, unequivocal mutual agreement

Kirleis v. Dickie, McCamey & Chilcote, PC - Third Circuit - March 24, 2009

http://www.ca3.uscourts.gov/opinarch/073504p.pdf

Attorney-shareholder of law firm sued for sex discrimination. The firm moved to compel arbitration under the terms of the corporate bylaws. The 3d Circuit upheld the district court's refusal to grant the firm's motion.

Plaintiff alleged--and the firm did not challenge--that she was never informed of the presence of the arbitration provision in the by-Laws, she never signed any agreement or document which refers to or incorporates the arbitration provision in the by-Laws. and she never agreed to arbitrate my claims against the firm.

Pennsylvania law about contract formation/arbitration requires that "[b]efore a party to a lawsuit can be ordered to arbitrate . . . there should be an express, unequivocal agreement to that effect," Par-Knit Mills, 636 F.2d at 54. No such agreement was shown in this case. The court held that plaintiff's status as a shareholder did not put her on constructive notice of the provision. "Under Pennsylvania law, explicit agreement is essential to the formation of an enforceable arbitration contract...."A mutual manifestation of intent to be bound is an essential element of a contract.". Thus, the firm's argument that Kirleis impliedly agreed to
arbitrate her claims must fail under Pennsylvania law. See also, Quiles v.
Financial Exchange Co., 879 A.2d 281 (Pa. Super. Ct. 2005)

federal courts - standing - organizational standing

SUPREME COURT OF THE UNITED STATES
SUMMERS ET AL. v. EARTH ISLAND INSTITUTE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 07–463. Argued October 8, 2008—Decided March 3, 2009

After the U. S. Forest Service approved the Burnt Ridge Project, a salvage sale of timber on 238 acres of fire-damaged federal land, respondent environmentalist organizations filed suit to enjoin the Service from applying its regulations exempting such small sales fromthe notice, comment, and appeal process it uses for more significant land management decisions, and to challenge other regulations thatdid not apply to Burnt Ridge. The District Court granted a preliminary injunction against the sale, and the parties then settled theirdispute as to Burnt Ridge. Although concluding that the sale was no longer at issue, and despite the Government’s argument that respondents therefore lacked standing to challenge the regulations, thecourt nevertheless proceeded to adjudicate the merits of their challenges, invalidating several regulations, including the notice and comment and the appeal provisions. Among its rulings, the NinthCircuit affirmed the determination that the latter regulations, which were applicable to Burnt Ridge, were contrary to law, but held that challenges to other regulations not at issue in that project were not ripe for adjudication.

Held: Respondents lack standing to challenge the regulations still atissue absent a live dispute over a concrete application of those regulations. Pp. 4–12.

(a) In limiting the judicial power to "Cases" and "Controversies," Article III restricts it to redressing or preventing actual or imminently threatened injury to persons caused by violation of law. See, e.g., Lujan v. Defenders of Wildlife, 504 U. S. 555, 559–560. The standing doctrine reflects this fundamental limitation, requiring that "the plaintiff . . . ‘alleg[e] such a personal stake in the outcome of thecontroversy’ as to warrant his invocation of federal-court jurisdiction," Warth v. Seldin, 422 U. S. 490, 498–499. Here, respondentscan demonstrate standing only if application of the regulations will affect them in such a manner. Pp. 4–5.

(b) As organizations, respondents can assert their members’ standing. Harm to their members’ recreational, or even their mere esthetic, interests in the National Forests will suffice to establish the requisite concrete and particularized injury, see Sierra Club v. Morton, 405 U. S. 727, 734–736, but generalized harm to the forest or the environment will not alone suffice. Respondents have identified noapplication of the invalidated regulations that threatens imminentand concrete harm to their members’ interests. Respondents’ argument that they have standing based on Burnt Ridge fails because, after voluntarily settling the portion of their lawsuit relevant to Burnt Ridge, respondents and their members are no longer under threat of injury from that project. The remaining affidavit submitted in support of standing fails to establish that any member has concrete plans to visit a site where the challenged regulations are being applied in a manner that will harm that member’s concrete interests. Additional affidavits purporting to establish standing were submitted after judgment had already been entered and notice of appeal filed,and are thus untimely. Pp. 5–8.

(c) Respondents’ argument that they have standing because they have suffered procedural injury—i.e., they have been denied the ability to file comments on some Forest Service actions and will continueto be so denied—fails because such a deprivation without some concrete interest affected thereby is insufficient to create Article III standing. See, e.g., Defenders of Wildlife, supra, at 572, n. 7. Pp. 8–9.

(d) The dissent’s objections are addressed and rejected. Pp. 9–12. 490 F. 3d 687, reversed in part and affirmed in part.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

federal courts - pre-emption - drug warnings

SUPREME COURT OF THE UNITED STATES - WYETH v. LEVINE
CERTIORARI TO THE SUPREME COURT OF VERMONT
No. 06–1249. Argued November 3, 2008—Decided March 4, 2009

Petitioner Wyeth manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the "IVpush" method, whereby a drug is injected directly into a patient’s vein, the drug entered Levine’s artery, she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that Levine’s injury would not have occurred if Phenergan’s label includedan adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as aprofessional musician. Declining to overturn the verdict, the trial court rejected Wyeth’s argument that Levine’s failure-to-warn claimswere pre-empted by federal law because Phenergan’s labeling hadbeen approved by the federal Food and Drug Administration (FDA). The Vermont Supreme Court affirmed.

Held: Federal law does not pre-empt Levine’s claim that Phenergan’slabel did not contain an adequate warning about the IV-push method of administration. Pp. 6–25.

(a) The argument that Levine’s state-law claims are pre-empted because it is impossible for Wyeth to comply with both the state-law duties underlying those claims and its federal labeling duties is rejected. Although a manufacturer generally may change a drug labelonly after the FDA approves a supplemental application, the agency’s"changes being effected" (CBE) regulation permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety. Pursuant to the CBE regulation, Wyeth could have unilaterally added a stronger warning about IV-push administration,and there is no evidence that the FDA would ultimately have rejected such a labeling change. Wyeth’s cramped reading of the CBE regulation and its broad assertion that unilaterally changing the Phenerganlabel would have violated federal law governing unauthorized distribution and misbranding of drugs are based on the fundamental misunderstanding that the FDA, rather than the manufacturer, bearsprimary responsibility for drug labeling. It is a central premise of theFood, Drug, and Cosmetic Act (FDCA) and the FDA’s regulationsthat the manufacturer bears responsibility for the content of its label at all times. Pp. 11–16.

(b) Wyeth’s argument that requiring it to comply with a state-law duty to provide a stronger warning would interfere with Congress’ purpose of entrusting an expert agency with drug labeling decisions is meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to preempt state law. The history of the FDCA shows that Congress didnot intend to pre-empt state-law failure-to-warn actions. In advancing the argument that the FDA must be presumed to have established a specific labeling standard that leaves no room for different state-law judgments, Wyeth relies not on any statement by Congress but on the preamble to a 2006 FDA regulation declaring that statelaw failure-to-warn claims threaten the FDA’s statutorily prescribed role. Although an agency regulation with the force of law can preempt conflicting state requirements, this case involves no such regulation but merely an agency’s assertion that state law is an obstacleto achieving its statutory objectives. Where, as here, Congress has not authorized a federal agency to pre-empt state law directly, theweight this Court accords the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency,and persuasiveness. Cf., e.g., Skidmore v. Swift & Co., 323 U. S. 134. Under this standard, the FDA’s 2006 preamble does not merit deference: It is inherently suspect in light of the FDA’s failure to offer interested parties notice or opportunity for comment on the preemption question; it is at odds with the available evidence of Congress’ purposes; and it reverses the FDA’s own longstanding positionthat state law is a complementary form of drug regulation without providing a reasoned explanation. Geier v. American Honda Motor Co., 529 U. S. 861, is distinguished. Pp. 17–25.
___ Vt. ___, 944 A. 2d 179, affirmed.

STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA, J., joined.

UC - willful misconduct - nolo contendere plea

Smith v. UCBR - Cmwlth. Court - February 27, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1760CD08_2-27-09.pdf

A nolo contendre plea to theft by deception "essentially constituted an admission of the facts charged in the underlying criminal proceedings" and constituted substantial evidence of willful misconduct under sec. 402(e) and fault under sec. 3

UC - subpoena - standard for granting

Alston v. UCBR - Cmwlth. Court - February 19, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf

The court reversed the UCBR decision on the merits and remanded the case for a hearing with claimant witnesses whom the referee improperly refused to subpoena.

The court rejected the Board's claim that the witnesses' evidence would be "directly contradictory" to that of the employer and held that it need only lead to "relevant and provative evidence," citing Hamilton v. UCBR, 532 A.2d A.2d 535, 537 (Pa. Cmwlth. 1987).

UC - appeal letter - pro se litigant

Alston v. UCBR - Cmwlth. Court - February 19, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf

A letter to the court served as an appeal under Pa. RAP 1514(a) and sec. 67.13 of court internal operating procedure, which gives a pro se claimant 30 days from receipt of timely appeal letter in which to file a proper petition for review.

arbitration - class action - no stay as to plaintiffs whose contracts do not have arbitration clause

Mendez, et al. v. Puerto Rican International Companies - 3d Cir. - January 26, 2009

http://www.ca3.uscourts.gov/opinarch/074053p.pdf

The issue for resolution is whether a defendant who is entitled to arbitrate an issue which it has with one plaintiff in a suit can insist on a mandatory stay of litigation of issues it has with other plaintiffs who are not committed to arbitrate those issues. We conclude that Section 3 was not intended to mandate curtailment of the litigation rights of anyone who has not agreed to arbitrate any of the issues before the court.

We acknowledge at the outset that Section 3 can be read literally to confer a right to a mandatory stay in the context of this case. Section 3 is an integral part of a statutory scheme, however, and reading it in the context of the FAA as a whole, we decline to attribute that intent to Congress.

The purpose of the FAA is to render agreements to arbitrate fully enforceable. 9 U.S.C. § 2 (a contract to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”). The purpose of Section 3, in particular, is to guarantee that a party who has secured the agreement of another to arbitrate rather than litigate a dispute will reap the full benefits of its bargain. In short, the “liberal policy ‘favoring arbitration agreements . . . is at bottom a policy guaranteeing the enforcement of private contractual arrangements.’”

Accordingly, “under the FAA, ‘a court may compel a party to arbitrate where that party has entered into a written agreement to arbitrate that covers the dispute.’” Because Congress thus limited the rights it created in the FAA to situations involving corresponding obligations voluntarily assumed by another, we decline appellants’ invitation to interpret Section 3 in a way that would mandate the imposition of a material burden on a party’s right to litigate claims it has not agreed to arbitrate.

While Section 3, as appellants read it, would postpone rather than eliminate a party’s right to litigate its claims against another, it would nevertheless defer that right for the duration of a proceeding over which the constrained party has no control and would deprive the Court of any discretion to consider the impact of that delay on that party. We find no persuasive evidence in the FAA for sanctioning such a burden.

disability - attorney fees - subantially justified

Magwood v. Astrue - ED Pa. - January 21, 2009

http://www.paed.uscourts.gov/documents/opinions/09D0086P.pdf

Government's position was not substantially justified where it was contrary to clearly established law concerning step 2 (severity) of the disability evaluation process. The government's prior "string of successes" before a 3d Cir. reversal was not enough to satisfy its burden.

A fee of $12,275.21 was awarded (68.30 hours at a rate of $176.23, plus $238.70 for expenses)

mortgage foreclosure - defective Act 91 - prejudice

Wells Fargo v. Monroe - Superior Court - January 26, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s71014_08.pdf

An allegedly defective* Act 91 notice was held not to be a defense to a foreclosure action when the mortgagors were given and availed themselves of the opportunity to pursue mortgage assistance through the HEMAP program.

They met with a credit counseling agency within the 30, as provided by the Act 91 Notice, and applied for mortgage assistance, which was ultimately denied. Under these circumstances, no prejudice could be presumed because of lack of compliance with the Act 91 requirements, and no prejudice was shown.

The " trial court did not abuse its discretion in finding that the Act 91 Notice sufficiently apprised the Monroes of their options with regard to the aid to which they were entitled. Therefore, the trial court’s grant of the motion for summary judgment filed by Wells Fargo was proper."

*The Act 91 notice was alleged to be defective for lack of notation of a place to cure and the inclusion of improper fees.