Nuñez v. Pachman - 3d Circuit - August 26, 2009
http://www.ca3.uscourts.gov/opinarch/083314p.pdf
Disclosure of an expunged criminal record held not to violate the federal due process clause.
The fact that a New Jersey statute law mandates removal of an expunged record from all public documents does not create a reasonable expectation of privacy in this information.
Because expungement is available only after a minimum statutory period of ten years has elapsed, and because references to a defendant’s criminal conduct may persist in public news sources after expungement, the information expunged is never truly “private.”
Even if the state recognizes a privacy interest in an expunged criminal record, the court decided that "such an interest is not cognizable under the federal constitution," whose protection of privacy is "significantly narrow that the right of privacy protected by state tort law." (emphasis in original) The state statute does not "harden the right of privacy into a constitutional right."
Query: Does Pennsylvania constitution offer greater protection of privacy that New Jersey's? See, Seth Kreimer, "The Right to Privacy in the Pennsylvania Constitution," in The Pennsylvania Constitution: A Treatise on Rights and Liberties at 785-819.
Wednesday, October 21, 2009
UC - subpoena duces tecum - enforcement, cost of producing records
Hahn v. UCBR - Cmwlth. Court - October 21, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2262CD08_10-21-09.pdf
Subpoena duces tecum
The UCBR did not err in failing to enforce a subpoena duces tecum against the employer, where the phone company and not the employer was in possession of the relevant records.
Cost of producing records - 43 P.S. 826
The employer raised the excessive cost of producing records as an issue in the case. The decision did not involve this issue, but the court noted that "neither party in this case cites to or relies upon...43 P.S. § 826 [sec. 506 of the UC Law] to argue that the fee to be paid to [phone company] for production of the phone records should have been set by the Board and paid out of the Board’s Administration Fund.
Section 506 states, in relevant part: The department and the board shall have power to issue summons or subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this act. . . . Witnesses subpoenaed pursuant to this act shall be allowed reasonable fees and expenses at a rate fixed by the department. Such fees and all expenses of proceedings involving disputed claims shall be deemed a part of the expense of administering this act and shall be paid from the Administration Fund. 43 P.S. § 826 (emphasis added). As neither party has argued that the Board should have fixed a fee for the production of the records, and paid such fee, we shall not address the issue sua sponte.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2262CD08_10-21-09.pdf
Subpoena duces tecum
The UCBR did not err in failing to enforce a subpoena duces tecum against the employer, where the phone company and not the employer was in possession of the relevant records.
Cost of producing records - 43 P.S. 826
The employer raised the excessive cost of producing records as an issue in the case. The decision did not involve this issue, but the court noted that "neither party in this case cites to or relies upon...43 P.S. § 826 [sec. 506 of the UC Law] to argue that the fee to be paid to [phone company] for production of the phone records should have been set by the Board and paid out of the Board’s Administration Fund.
Section 506 states, in relevant part: The department and the board shall have power to issue summons or subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this act. . . . Witnesses subpoenaed pursuant to this act shall be allowed reasonable fees and expenses at a rate fixed by the department. Such fees and all expenses of proceedings involving disputed claims shall be deemed a part of the expense of administering this act and shall be paid from the Administration Fund. 43 P.S. § 826 (emphasis added). As neither party has argued that the Board should have fixed a fee for the production of the records, and paid such fee, we shall not address the issue sua sponte.
Tuesday, October 20, 2009
mootness - case or controversy
Harris, et al. v. Rendell, et al. - Cmwlth. Court -
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/504MD08_10-19-09.pdf
This case has to do with the parole board, but there is interesting language in it about mootness, case/controversy. Interesting and important in itself. Some of it may also have relevance to the standing question in foreclosure cases.
_______________________
Under the mootness doctrine, "an actual case or controversy must be extant at all stages of review, not merely at the time the complaint is filed." Pub.Defender's Office of Venango County v. Venango County Court of Common Pleas, 586 Pa. 317, 325, 893 A.2d 1275, 1279 (2006) [quoting Pap's A.M. v. City of Erie, 571 Pa. 375, 389, 812 A.2d 591, 599-600 (2002)]. The existence of a case or controversy requires "a real and not a hypothetical legal controversy and one that affects another in a concrete manner so as to provide a factual predicate for reasoned adjudication …." City of Philadelphia v. SEPTA, 937 A.2d 1176, 1179 (Pa. Cmwlth. 2007).
As the Pennsylvania Supreme Court explained: The cases presenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten under way—changes in the facts or in the law—which allegedly deprive the litigant of the necessary stake in the outcome. Pap's A.M., 571 Pa. at 389, 812 A.2d at 599-600 (2002) [quoting In re Cain, 527 Pa. 260, 263, 590 A.2d 291, 292 (1991)].
It is well settled that the courts "do not render decisions in the abstract or offer purely advisory opinions." Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 203, 888 A.2d 655, 659 (2005). Judicial intervention "is appropriate only where the underlying controversy is real and concrete, rather than abstract." City of Philadelphia v. Commonwealth, 575 Pa. 542, 559, 838 A.2d 566, 577 (2003)....
Under the exceptions to the mootness doctrine, the court may consider technically moot issues "where the conduct complained of is capable of repetition yet likely to evade review, where the case involves issues important to the public interest or where a party will suffer some detriment without the court's decision." Sierra Club v. Pa. Public Utility Comm'n, 702 A.2d 1131, 1134 (Pa. Cmwlth. 1997), aff'd, 557 Pa. 11, 731 A.2d 133 (1999). It is within the court's "discretion to decide substantial questions, otherwise moot, that are capable of repetition unless settled." In re Bishop, 717 A.2d 1114, 1116 (Pa. Cmwlth. 1998).
[There are] cases in which the courts decided to review technically moot issues. See, e.g., Jersey Shore Area Sch. Dist. v. Jersey Shore Educ. Ass'n, 519 Pa. 398, 548 A.2d 1202 (1988) (the legality of teachers' strike was one of important public interest and capable of repetition yet apt to evade review); Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa. 56, 373 A.2d 748 (1977) (the trial court's issuance of preliminary injunction would escape appellate review because the effect of the injunction would terminate before review); Lutz v. Tanglwood Lakes Cmty. Ass'n, 866 A.2d 471 (Pa. Cmwlth. 2005), appeal granted in part, 583 Pa. 508, 880 A.2d 502 (2005) (the issue concerning dismissal of a nonprofit corporation's directors was of great public importance to the governance of nonprofit corporations and likely to reoccur because directors' terms would likely expire before final resolution of any legal challenge to their removal); Coady v. Pa. Bd. of Prob. & Parole, 804 A.2d 121 (Pa. Cmwlth. 2002) (the constitutionality of the 1996 amendment to the Parole Act, as applied to inmates who had been convicted prior to the amendment, was a matter of great public importance; the court noted the federal district court's earlier ruling that the amendment, as applied, violated the ex post facto clause).
[T]he great public importance exception to the mootness doctrine "is generally confined to a narrow category of cases." Bottomer v. Progressive Cas. Ins. Co., 580 Pa. 114, 120, 859 A.2d 1282, 1285 (2004). As our Supreme Court stated in Wortex Mills, Inc. v. Textile Workers Union of America, 369 Pa. 359, 370, 85 A.2d 851, 857 (1952): It is only in very rare cases where exceptional circumstances exist or where matters or questions of great public importance are involved, that this court ever decides moot questions or erects guideposts for future conduct or actions. … [The issues] will not be anticipated but will be dealt with only as they are appropriately raised upon a record before us.
A controlling factor in determining whether the moot questions may be appropriately reviewed under the great public importance exception is whether "the legislature obviously recognized the significance of [such] questions." In re Gross, 476 Pa. at 215, 382 A.2d at 123. If the statute "deals squarely with the issues," the case does not fall within the great public importance exception.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/504MD08_10-19-09.pdf
This case has to do with the parole board, but there is interesting language in it about mootness, case/controversy. Interesting and important in itself. Some of it may also have relevance to the standing question in foreclosure cases.
_______________________
Under the mootness doctrine, "an actual case or controversy must be extant at all stages of review, not merely at the time the complaint is filed." Pub.Defender's Office of Venango County v. Venango County Court of Common Pleas, 586 Pa. 317, 325, 893 A.2d 1275, 1279 (2006) [quoting Pap's A.M. v. City of Erie, 571 Pa. 375, 389, 812 A.2d 591, 599-600 (2002)]. The existence of a case or controversy requires "a real and not a hypothetical legal controversy and one that affects another in a concrete manner so as to provide a factual predicate for reasoned adjudication …." City of Philadelphia v. SEPTA, 937 A.2d 1176, 1179 (Pa. Cmwlth. 2007).
As the Pennsylvania Supreme Court explained: The cases presenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten under way—changes in the facts or in the law—which allegedly deprive the litigant of the necessary stake in the outcome. Pap's A.M., 571 Pa. at 389, 812 A.2d at 599-600 (2002) [quoting In re Cain, 527 Pa. 260, 263, 590 A.2d 291, 292 (1991)].
It is well settled that the courts "do not render decisions in the abstract or offer purely advisory opinions." Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 203, 888 A.2d 655, 659 (2005). Judicial intervention "is appropriate only where the underlying controversy is real and concrete, rather than abstract." City of Philadelphia v. Commonwealth, 575 Pa. 542, 559, 838 A.2d 566, 577 (2003)....
Under the exceptions to the mootness doctrine, the court may consider technically moot issues "where the conduct complained of is capable of repetition yet likely to evade review, where the case involves issues important to the public interest or where a party will suffer some detriment without the court's decision." Sierra Club v. Pa. Public Utility Comm'n, 702 A.2d 1131, 1134 (Pa. Cmwlth. 1997), aff'd, 557 Pa. 11, 731 A.2d 133 (1999). It is within the court's "discretion to decide substantial questions, otherwise moot, that are capable of repetition unless settled." In re Bishop, 717 A.2d 1114, 1116 (Pa. Cmwlth. 1998).
[There are] cases in which the courts decided to review technically moot issues. See, e.g., Jersey Shore Area Sch. Dist. v. Jersey Shore Educ. Ass'n, 519 Pa. 398, 548 A.2d 1202 (1988) (the legality of teachers' strike was one of important public interest and capable of repetition yet apt to evade review); Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa. 56, 373 A.2d 748 (1977) (the trial court's issuance of preliminary injunction would escape appellate review because the effect of the injunction would terminate before review); Lutz v. Tanglwood Lakes Cmty. Ass'n, 866 A.2d 471 (Pa. Cmwlth. 2005), appeal granted in part, 583 Pa. 508, 880 A.2d 502 (2005) (the issue concerning dismissal of a nonprofit corporation's directors was of great public importance to the governance of nonprofit corporations and likely to reoccur because directors' terms would likely expire before final resolution of any legal challenge to their removal); Coady v. Pa. Bd. of Prob. & Parole, 804 A.2d 121 (Pa. Cmwlth. 2002) (the constitutionality of the 1996 amendment to the Parole Act, as applied to inmates who had been convicted prior to the amendment, was a matter of great public importance; the court noted the federal district court's earlier ruling that the amendment, as applied, violated the ex post facto clause).
[T]he great public importance exception to the mootness doctrine "is generally confined to a narrow category of cases." Bottomer v. Progressive Cas. Ins. Co., 580 Pa. 114, 120, 859 A.2d 1282, 1285 (2004). As our Supreme Court stated in Wortex Mills, Inc. v. Textile Workers Union of America, 369 Pa. 359, 370, 85 A.2d 851, 857 (1952): It is only in very rare cases where exceptional circumstances exist or where matters or questions of great public importance are involved, that this court ever decides moot questions or erects guideposts for future conduct or actions. … [The issues] will not be anticipated but will be dealt with only as they are appropriately raised upon a record before us.
A controlling factor in determining whether the moot questions may be appropriately reviewed under the great public importance exception is whether "the legislature obviously recognized the significance of [such] questions." In re Gross, 476 Pa. at 215, 382 A.2d at 123. If the statute "deals squarely with the issues," the case does not fall within the great public importance exception.
Monday, October 19, 2009
UC - referee duty to unrepresented claimant - sexual harassment
Murray v. UCBR - Cmwlth. Court - October 19, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/820CD09_10-19-09.pdf
This case was not reported, but it has some useful things in it, nonetheless.
Referee duty to unrepresented claimant -
When a party is unaccompanied by counsel at a hearing before the referee, the referee is charged with a heightened responsibility of supervising the presentation of evidence. Drs. Katsur & Associates v. UCBR, 509 A.2d 926 (Pa. Cmwlth. 1986). The referee must act reasonably in assisting an unrepresented party’s development of necessary facts but need not advise a party on evidentiary questions or specific points of law. Bennett. The referee must advise a claimant of his right to be represented by counsel, to offer witnesses and to cross-examine adverse witnesses. Catanese v. UCBR, 452 A.2d 929 (Pa. Cmwlth. 1982). However, it is true that a referee need not advise a claimant with respect to the conduct of the hearing at every stage. Rohrbach v. UCBR, 450 A.2d 323 (Pa. Cmwlth. 1982). Any failure to develop an adequate record must be shown to be prejudicial to the claimant; mere harmless error will not support a reversal. Snow v. UCBR, 433 A.2d 922 (Pa. Cmwlth. 1981).
In Bennett v. UCBR, 445 A.2d 258 (Pa. Cmwlth. 1982), the claimant alleged that she was not afforded a full and fair hearing as the referee failed to assist her in developing relevant testimony, inter alia, “alleged sexual harassment by patrons of which her employer was aware but did not remedy.” This Court concluded that the “very sparse record” and the “two-page hearing transcript . . . of which only less than half of a page is germane to" the issues "revealed that the referee did not ask sufficient questions to aid the claimant in establishing a necessitous and compelling cause for leaving her job. Bennett, 445 A.2d at 459. We also noted, that the referee did not inform claimant of her right to counsel or to cross-examine witnesses, and, thus, the hearing was less than “full and fair.” Thus, we concluded that the referee should have more “thoroughly and reasonably extracted testimony” on these issues. Id.
Here, however, although claimant correctly recited the law, her allegation that the referee failed to properly help her develop the record and establish facts that were supportive of her claim is unsupported by evidence of record. Moroever, the referee told claimant of her right to counsel and other rights, explained the hearing procedures, asked questions of her and attempted to elicit relevant testimony.
Sexual harassment
Sexual harassment can be a necessitous and compelling reason for separating from employment, provided the employee has taken reasonable and prudent steps to alleviate the problem. Weissman v. Unemployment Compensation Board of Review, 502 A.2d 782 (Pa. Cmwlth. 1986). Thus, a claimant must establish that she took “common sense action” such that the employer was aware of the nature of the objection. Colduvell v. Unemployment Compensation Board of Review, 408 A.2d 1207 (Pa. Cmwlth. 1979). See Homan v. Unemployment Compensation Board of Review, 527 A.2d 1109 (Pa. Cmwlth. 1987) and Collier Stone Company v. Unemployment Compensation Board of Review, 876 A.2d 481 (Pa. Cmwlth. 2005); Comitalo v. UCBR, 737 A.2d 342 (Pa. Cmwlth. 1999).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/820CD09_10-19-09.pdf
This case was not reported, but it has some useful things in it, nonetheless.
Referee duty to unrepresented claimant -
When a party is unaccompanied by counsel at a hearing before the referee, the referee is charged with a heightened responsibility of supervising the presentation of evidence. Drs. Katsur & Associates v. UCBR, 509 A.2d 926 (Pa. Cmwlth. 1986). The referee must act reasonably in assisting an unrepresented party’s development of necessary facts but need not advise a party on evidentiary questions or specific points of law. Bennett. The referee must advise a claimant of his right to be represented by counsel, to offer witnesses and to cross-examine adverse witnesses. Catanese v. UCBR, 452 A.2d 929 (Pa. Cmwlth. 1982). However, it is true that a referee need not advise a claimant with respect to the conduct of the hearing at every stage. Rohrbach v. UCBR, 450 A.2d 323 (Pa. Cmwlth. 1982). Any failure to develop an adequate record must be shown to be prejudicial to the claimant; mere harmless error will not support a reversal. Snow v. UCBR, 433 A.2d 922 (Pa. Cmwlth. 1981).
In Bennett v. UCBR, 445 A.2d 258 (Pa. Cmwlth. 1982), the claimant alleged that she was not afforded a full and fair hearing as the referee failed to assist her in developing relevant testimony, inter alia, “alleged sexual harassment by patrons of which her employer was aware but did not remedy.” This Court concluded that the “very sparse record” and the “two-page hearing transcript . . . of which only less than half of a page is germane to" the issues "revealed that the referee did not ask sufficient questions to aid the claimant in establishing a necessitous and compelling cause for leaving her job. Bennett, 445 A.2d at 459. We also noted, that the referee did not inform claimant of her right to counsel or to cross-examine witnesses, and, thus, the hearing was less than “full and fair.” Thus, we concluded that the referee should have more “thoroughly and reasonably extracted testimony” on these issues. Id.
Here, however, although claimant correctly recited the law, her allegation that the referee failed to properly help her develop the record and establish facts that were supportive of her claim is unsupported by evidence of record. Moroever, the referee told claimant of her right to counsel and other rights, explained the hearing procedures, asked questions of her and attempted to elicit relevant testimony.
Sexual harassment
Sexual harassment can be a necessitous and compelling reason for separating from employment, provided the employee has taken reasonable and prudent steps to alleviate the problem. Weissman v. Unemployment Compensation Board of Review, 502 A.2d 782 (Pa. Cmwlth. 1986). Thus, a claimant must establish that she took “common sense action” such that the employer was aware of the nature of the objection. Colduvell v. Unemployment Compensation Board of Review, 408 A.2d 1207 (Pa. Cmwlth. 1979). See Homan v. Unemployment Compensation Board of Review, 527 A.2d 1109 (Pa. Cmwlth. 1987) and Collier Stone Company v. Unemployment Compensation Board of Review, 876 A.2d 481 (Pa. Cmwlth. 2005); Comitalo v. UCBR, 737 A.2d 342 (Pa. Cmwlth. 1999).
UC - voluntary quit - length of commute
Blazowich v. UCBR - Cmwlth. Court - October 19, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/754CD09_10-19-09.pdf
Transportation inconveniences constitute a necessitous and compelling reason for voluntary termination “only where they are ‘so serious and unreasonable as to present a virtually insurmountable problem and the claimant must demonstrate that he or she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship.’” Musguire v. UCBR, 415 A.2d 708, 709 (Pa. Cmwlth. 1980) (quoting Lee v. UCBR, 401 A.2d 12, 13 (Pa. Cmwlth. 1979).
A fifty-mile one-way commute, without more, does not constitute a necessitous and compelling reason to quit. Kieley v. UCBR, 471 A.2d 1345 (Pa. Cmwlth. 1984). Furthermore, a claimant who has not tried a sixty-mile commute, even for a single day, before severing the employment relationship, has not taken reasonable steps to overcome transportation problems. Musguire. Here, Claimant would have had to travel a distance of only twenty-five miles, and Claimant did not attempt commuting to the new assignment, not even once, before refusing Employer’s offer. Thus, Claimant has failed to establish a necessitous and compelling reason for terminating employment.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/754CD09_10-19-09.pdf
Transportation inconveniences constitute a necessitous and compelling reason for voluntary termination “only where they are ‘so serious and unreasonable as to present a virtually insurmountable problem and the claimant must demonstrate that he or she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship.’” Musguire v. UCBR, 415 A.2d 708, 709 (Pa. Cmwlth. 1980) (quoting Lee v. UCBR, 401 A.2d 12, 13 (Pa. Cmwlth. 1979).
A fifty-mile one-way commute, without more, does not constitute a necessitous and compelling reason to quit. Kieley v. UCBR, 471 A.2d 1345 (Pa. Cmwlth. 1984). Furthermore, a claimant who has not tried a sixty-mile commute, even for a single day, before severing the employment relationship, has not taken reasonable steps to overcome transportation problems. Musguire. Here, Claimant would have had to travel a distance of only twenty-five miles, and Claimant did not attempt commuting to the new assignment, not even once, before refusing Employer’s offer. Thus, Claimant has failed to establish a necessitous and compelling reason for terminating employment.
UC - vol. quit - safety of claimant v. safety of others
Green Tree School v. UCBR - Cmwlth. Court - October 19, 2009 (2-1)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/7CD09_10-19-09.pdf
Majority
The court reversed the UCBR and held that Claimant’s stated safety concerns and Employer’s refusal to allow her to participate in a staffing decision gave her necessitous and compelling reasons to resign. Concluding that they did not, we reverse the Board.
Employer is a private school for children with autism and emotional disturbances, where Claimant worked for seven years as the Director of Education. She quit her job when another job position, behavior health coordinator -- which was occupied by her life partner -- was eliminated, without any consultation with the claimant.
Claimant submitted a resignation letter to the school’s board of directors that its “decision to cut the position of Behavior Coordinator for the coming year … has resulted in my resignation.” The board accepted the resignation.
The court agreed with the Employer contention that claimant’s concerns regarding the “physical and emotional safety” of the persons at the school was speculative and that claimant did not take reasonable steps to preserve her employment.
The court rejected claimant's argument that the elimination of the position made the school unsafe for the children, citing only cases about a claimant's own personal safety. "There is simply a disconnect between the harm posited by claimant and her personal safety....The test is not whether a claimant’s belief is a genuine one. Rather, the test is whether the claimant has demonstrated that the workplace environment has placed “real,” i.e., actual and extreme, pressure on the claimant....Claimant’s self-serving testimony did not demonstrate that she was unsafe or that the workplace was unsafe with the kind of objective evidence presented" in other cases.
The exclusion of the claimant from the staffing decision did not give her good cause to quit either. "Employees do not enjoy a general right to participate in management decisions, such as how many staff are needed in another department. In addition, [the school director] explained that claimant should not have been involved in this particular personnel decision precisely because of her relationship with" the employee whose position was eliminated -- her life partner.
Claimant also "failed in her duty to preserve employment." It was "not her prerogative" to make a demand to be involved in the staffing position. She quit before waiting to seehow the staffing change would affect her or the school before announcing her resignation. "Claimant simply issued an ultimatum to Employer that it yield to her views, but the ultimatum did not satisfy her duty to preserve employment."
Dissent
Without addressing the issue head-on, the dissent said that danger to the children, and just claimant, would constitute good cause, and that the claimant had established such a danger. The dissent felt that claimant notified the employer of the problem in advance of quitting and left the job only when the employer did not address the problem.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/7CD09_10-19-09.pdf
Majority
The court reversed the UCBR and held that Claimant’s stated safety concerns and Employer’s refusal to allow her to participate in a staffing decision gave her necessitous and compelling reasons to resign. Concluding that they did not, we reverse the Board.
Employer is a private school for children with autism and emotional disturbances, where Claimant worked for seven years as the Director of Education. She quit her job when another job position, behavior health coordinator -- which was occupied by her life partner -- was eliminated, without any consultation with the claimant.
Claimant submitted a resignation letter to the school’s board of directors that its “decision to cut the position of Behavior Coordinator for the coming year … has resulted in my resignation.” The board accepted the resignation.
The court agreed with the Employer contention that claimant’s concerns regarding the “physical and emotional safety” of the persons at the school was speculative and that claimant did not take reasonable steps to preserve her employment.
The court rejected claimant's argument that the elimination of the position made the school unsafe for the children, citing only cases about a claimant's own personal safety. "There is simply a disconnect between the harm posited by claimant and her personal safety....The test is not whether a claimant’s belief is a genuine one. Rather, the test is whether the claimant has demonstrated that the workplace environment has placed “real,” i.e., actual and extreme, pressure on the claimant....Claimant’s self-serving testimony did not demonstrate that she was unsafe or that the workplace was unsafe with the kind of objective evidence presented" in other cases.
The exclusion of the claimant from the staffing decision did not give her good cause to quit either. "Employees do not enjoy a general right to participate in management decisions, such as how many staff are needed in another department. In addition, [the school director] explained that claimant should not have been involved in this particular personnel decision precisely because of her relationship with" the employee whose position was eliminated -- her life partner.
Claimant also "failed in her duty to preserve employment." It was "not her prerogative" to make a demand to be involved in the staffing position. She quit before waiting to seehow the staffing change would affect her or the school before announcing her resignation. "Claimant simply issued an ultimatum to Employer that it yield to her views, but the ultimatum did not satisfy her duty to preserve employment."
Dissent
Without addressing the issue head-on, the dissent said that danger to the children, and just claimant, would constitute good cause, and that the claimant had established such a danger. The dissent felt that claimant notified the employer of the problem in advance of quitting and left the job only when the employer did not address the problem.
Thursday, October 15, 2009
tax sale - notice
Lerza-Keubler v. Monroe County Tax Claim Bureau - Cmwlth. Court - October 15, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/174CD09_10-15-09.pdf
The court set aside a tax sale because, after the post office returned the tax sale notices unclaimed, the Bureau failed to make a reasonable effort to notify the owner of the tax sale by calling the telephone number the tax claim bureau had for the deceased owner, which was the same telephone number of the executrix, who was living at the property. Such a failure can be cured by showing actual notice, but proof of that was lacking here.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/174CD09_10-15-09.pdf
The court set aside a tax sale because, after the post office returned the tax sale notices unclaimed, the Bureau failed to make a reasonable effort to notify the owner of the tax sale by calling the telephone number the tax claim bureau had for the deceased owner, which was the same telephone number of the executrix, who was living at the property. Such a failure can be cured by showing actual notice, but proof of that was lacking here.
UC - willful misconduct - prior incidents v. final incident
Philadelphia Parking Authority v. UCBR - Cmwlth. Court - October 15, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2335CD08_10-15-09.pdf
"Notwithstanding a history of job-related misconduct, an employer must still prove that the final incident of misconduct for which a claimant was purportedly terminated contained an element of willfulness; should the employer fail to establish that the final incident constituted willful conduct, the employer has also failed to prove the required causal connection between the claimant’s purported culpable behavior, and the termination. See SEPTA v. UCBR, 525 A.2d 458 (Pa. Cmwlth. 1987); Crib Diaper Service v. UCBR, 98 A.2d 490 (Pa. Super. 1953). As such, Employer’s arguments regarding Claimant’s prior alleged instances of misconduct are of no moment to the issue on appeal sub judice."
__._,_.___
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2335CD08_10-15-09.pdf
"Notwithstanding a history of job-related misconduct, an employer must still prove that the final incident of misconduct for which a claimant was purportedly terminated contained an element of willfulness; should the employer fail to establish that the final incident constituted willful conduct, the employer has also failed to prove the required causal connection between the claimant’s purported culpable behavior, and the termination. See SEPTA v. UCBR, 525 A.2d 458 (Pa. Cmwlth. 1987); Crib Diaper Service v. UCBR, 98 A.2d 490 (Pa. Super. 1953). As such, Employer’s arguments regarding Claimant’s prior alleged instances of misconduct are of no moment to the issue on appeal sub judice."
__._,_.___
Tuesday, October 06, 2009
municipal ordinances - adoption - void ab initio doctrine
Hawk v. Eldred Twp. Board of Supervisors - Cmwlth. Court - October 6, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/218CD09_10-6-09.pdf
Township zoning ordinance held to be not void ab initio, despite some defects in adoption under the Municipal Planning Code, 53 P.S. §§10101-11202, because, inter alia, the appellant did not challenge the ordinance until 4 years after its adoption. Moreover, "the public was repeatedly informed of every meeting concerning the creation and enactment of the Ordinance in a newspaper of general circulation, a reasonable forum for providing such notice which is tantamount to the notice that it would have received if the statutory requirements would have been followed. [The appellant] had every opportunity for years to attend a meeting and for months to view the Ordinance and could have challenged it from its inception. But he did not. Because he waited for four years and had not been deprived of any constitutional right, he is time barred from challenging the validity of the Ordinance."
The doctrine of void ab initio is a legal theory stating that a statute held unconstitutional is void in its entirety and is treated as if it had never existed. For a thorough discussion of the history of the void ab initio doctrine, see Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 143-45, 907 A.2d 1033, 1037-38 (2006). See also Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board, 972 A.2d 136, 142-43 (Pa. Cmwlth. 2009), where the court counseled against "an overly aggressive application of the doctrine could result in excessive uncertainty...."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/218CD09_10-6-09.pdf
Township zoning ordinance held to be not void ab initio, despite some defects in adoption under the Municipal Planning Code, 53 P.S. §§10101-11202, because, inter alia, the appellant did not challenge the ordinance until 4 years after its adoption. Moreover, "the public was repeatedly informed of every meeting concerning the creation and enactment of the Ordinance in a newspaper of general circulation, a reasonable forum for providing such notice which is tantamount to the notice that it would have received if the statutory requirements would have been followed. [The appellant] had every opportunity for years to attend a meeting and for months to view the Ordinance and could have challenged it from its inception. But he did not. Because he waited for four years and had not been deprived of any constitutional right, he is time barred from challenging the validity of the Ordinance."
The doctrine of void ab initio is a legal theory stating that a statute held unconstitutional is void in its entirety and is treated as if it had never existed. For a thorough discussion of the history of the void ab initio doctrine, see Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 143-45, 907 A.2d 1033, 1037-38 (2006). See also Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board, 972 A.2d 136, 142-43 (Pa. Cmwlth. 2009), where the court counseled against "an overly aggressive application of the doctrine could result in excessive uncertainty...."
handicapped - negligent placement of wheelchair ramp on bus - sovereign immunity
Mannella v. Port Authority of Allegheny County - Cmwlth. Court - October 6, 2009 (2-1 decision)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/5CD09_10-6-09.pdf
The court held that a bus driver’s alleged negligent placement of a bus wheelchair ramp does not fall within the vehicle exception to sovereign immunity under Section 8522(b)(1) of the Judicial Code, 42 Pa. C.S. §8522(b)(1), because it was undisputed that neither the bus nor the wheelchair ramp was in operation at the time of the accident.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/5CD09_10-6-09.pdf
The court held that a bus driver’s alleged negligent placement of a bus wheelchair ramp does not fall within the vehicle exception to sovereign immunity under Section 8522(b)(1) of the Judicial Code, 42 Pa. C.S. §8522(b)(1), because it was undisputed that neither the bus nor the wheelchair ramp was in operation at the time of the accident.
Monday, October 05, 2009
insurance - rates - Consumer Protection Law - exhaustion of remedies under insurance statutes not required
White v. Conestoga Title Insurance Company - Superior Court - October 2, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/S24030_09.pdf
Plaintiff need not exhaust admininistrative remedies under the Title Insurance Companies Act (TICA), 40 P.S. sec. 910-1 et seq. or the Unfair Insurance Practices Act (UIPA), 40 P.S. 1171.1 et seq., , before bringing an action against an insurance company under the Consumer Protection Law, 73 P.S. sec. 201-1 et seq., based on a claim that the company systematically failed to give plaintiff (and the class) the discounted insurance rates for refinancing transactions, as mandated by the approved rate structure, and thus "engaged in deceptive business practices and pervasively overcharged poilicy holders...by charging the highest approved rate, regardless of consumers' qualification for a discounted rate."
The Court relied on its decision in In Pekular v. Eich, 513 A.2d 427 (Pa. Super. 1986), appeal denied, 516 Pa. 635, 533 A.2d 93 (1987), where it held that the UIPA was not an exclusive administrative remedy, even though the alleged actions may fall within its definitional language. The Court ruled that a plaintiff, when not directly or indirectly claiming a violation of the UIPA, could bring a private action under the CPL for statutorily defined wrongs, because “the limited penalties of the [UIPA] do not represent the sole and exclusive deterrent to alleged unfair or deceptive acts of insurers and their agents.” The Court noted that the Pekular decision has been followed by subsequent panels in Wright v. North American Life Assurance Company, 539 A.2d 434 (Pa. Super. 1988) and Hardy v. Pennock Insurance Agency, Inc., 529 A.2d 471 (Pa. Super. 1987).
The Court said that it was "incongruous" for the insurance company "to suggest that the Legislature intended the TICA to control and be the exclusive administrative remedy for claims of unfair and deceptive insurance practices that only tangentially relate to insurance rates, " and that neither the UIPA nor the TICA provided a proper remedy for the wrongs the plaintiff had alleged here. It characterized the defendant's argument as an "attempt to sidestep the consumer protection laws truly at issue here..."
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/S24030_09.pdf
Plaintiff need not exhaust admininistrative remedies under the Title Insurance Companies Act (TICA), 40 P.S. sec. 910-1 et seq. or the Unfair Insurance Practices Act (UIPA), 40 P.S. 1171.1 et seq., , before bringing an action against an insurance company under the Consumer Protection Law, 73 P.S. sec. 201-1 et seq., based on a claim that the company systematically failed to give plaintiff (and the class) the discounted insurance rates for refinancing transactions, as mandated by the approved rate structure, and thus "engaged in deceptive business practices and pervasively overcharged poilicy holders...by charging the highest approved rate, regardless of consumers' qualification for a discounted rate."
The Court relied on its decision in In Pekular v. Eich, 513 A.2d 427 (Pa. Super. 1986), appeal denied, 516 Pa. 635, 533 A.2d 93 (1987), where it held that the UIPA was not an exclusive administrative remedy, even though the alleged actions may fall within its definitional language. The Court ruled that a plaintiff, when not directly or indirectly claiming a violation of the UIPA, could bring a private action under the CPL for statutorily defined wrongs, because “the limited penalties of the [UIPA] do not represent the sole and exclusive deterrent to alleged unfair or deceptive acts of insurers and their agents.” The Court noted that the Pekular decision has been followed by subsequent panels in Wright v. North American Life Assurance Company, 539 A.2d 434 (Pa. Super. 1988) and Hardy v. Pennock Insurance Agency, Inc., 529 A.2d 471 (Pa. Super. 1987).
The Court said that it was "incongruous" for the insurance company "to suggest that the Legislature intended the TICA to control and be the exclusive administrative remedy for claims of unfair and deceptive insurance practices that only tangentially relate to insurance rates, " and that neither the UIPA nor the TICA provided a proper remedy for the wrongs the plaintiff had alleged here. It characterized the defendant's argument as an "attempt to sidestep the consumer protection laws truly at issue here..."
Tuesday, September 29, 2009
UC - EUC - financial eligibility - wages - allocation - earned v. paid
McKenna v. UCBR - Cmwlth. Court - September 29, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/797CD09_9-29-09.pdf
The court held that the claimant did not satisfy the requirement of state and federal law -- 26 U.S.C. §3304 Note, and 43 P.S. §813 -- that his base-year earnings be equal to or greater than 1.5 times his high-quarter earnings.
Claimant's high quarter earnings included some that he earned in the previous quarter. They also included a bonus payment. Had these not been included in his high quarter, he would have been eligible for EUC benefits.
The court rejected his argument that these wages be allocated to the quarter in which they were earned rather than paid.
"This Court is unable to agree with Claimant’s desired allocation of his wages. The Act provides that eligibility for EUC benefits must be determined by state law which implements Section 202(a)(5) of the Federal-State Extended Unemployment Compensation Act of 1970. That section of the Law is Section 403-A which states a claimant must have wages equal to or greater than one and one–half times the highest quarterly wage. Section 4(x) of the Law, 43 P.S. §753(x), defines “wages” as “remuneration paid.”
In Pollard v. Unemployment Compensation Board of Review, 454 A.2d 1166 (Pa. Cmwlth. 1983), this Court explained when wages are considered paid. The Board ruled that William J. Pollard (Pollard) was ineligible for benefits because his wages during the base year were at least $439.00 less than the qualifying amount. Pollard reported that he received $889.53 in additional wages which were not received until after the base year but were attributed to work performed in the fourth quarter of the base year. Pollard argued that the $889.53 should be allocated to the fourth quarter when it was earned. This Court did not agree on the basis that wages must be included in the quarter in which the employee received them not when they were earned. Pollard, 454 A.2d at 1167.
Here, even though Claimant may have earned the $3,200 in the third quarter, it was not paid to him until the fourth quarter. Consequently, this amount must be allocated to fourth quarter wages. Congress has set forth the framework under which EUC benefits are administered and has given states some authority with respect to eligibility. Our General Assembly established the one and one-half times the highest quarter for total wages and has defined “wages.” This Court has determined that wages count when they are paid not when they are earned. The Board did not err."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/797CD09_9-29-09.pdf
The court held that the claimant did not satisfy the requirement of state and federal law -- 26 U.S.C. §3304 Note, and 43 P.S. §813 -- that his base-year earnings be equal to or greater than 1.5 times his high-quarter earnings.
Claimant's high quarter earnings included some that he earned in the previous quarter. They also included a bonus payment. Had these not been included in his high quarter, he would have been eligible for EUC benefits.
The court rejected his argument that these wages be allocated to the quarter in which they were earned rather than paid.
"This Court is unable to agree with Claimant’s desired allocation of his wages. The Act provides that eligibility for EUC benefits must be determined by state law which implements Section 202(a)(5) of the Federal-State Extended Unemployment Compensation Act of 1970. That section of the Law is Section 403-A which states a claimant must have wages equal to or greater than one and one–half times the highest quarterly wage. Section 4(x) of the Law, 43 P.S. §753(x), defines “wages” as “remuneration paid.”
In Pollard v. Unemployment Compensation Board of Review, 454 A.2d 1166 (Pa. Cmwlth. 1983), this Court explained when wages are considered paid. The Board ruled that William J. Pollard (Pollard) was ineligible for benefits because his wages during the base year were at least $439.00 less than the qualifying amount. Pollard reported that he received $889.53 in additional wages which were not received until after the base year but were attributed to work performed in the fourth quarter of the base year. Pollard argued that the $889.53 should be allocated to the fourth quarter when it was earned. This Court did not agree on the basis that wages must be included in the quarter in which the employee received them not when they were earned. Pollard, 454 A.2d at 1167.
Here, even though Claimant may have earned the $3,200 in the third quarter, it was not paid to him until the fourth quarter. Consequently, this amount must be allocated to fourth quarter wages. Congress has set forth the framework under which EUC benefits are administered and has given states some authority with respect to eligibility. Our General Assembly established the one and one-half times the highest quarter for total wages and has defined “wages.” This Court has determined that wages count when they are paid not when they are earned. The Board did not err."
admin. law - findings - sufficiency - conclusions follow from facts
Pennsylvania Bankers Assn. v. Dept. of Banking - September 28, 2009 - Cmwlth. Court
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/42MD05_9-28-09.pdf
“A reviewing court has the discretion to determine whether the findings that accompany an administrative agency adjudication are sufficient” and the “findings need only be enough to enable the Court to determine the questions and ensure that the conclusions follow from the facts.” Krebs Chrysler-Plymouth, Inc. v. State Bd. of Vehicle Mfrs., Dealers & Salespersons, 655 A.2d 190, 193 (Pa. Cmwlth. 1995).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/42MD05_9-28-09.pdf
“A reviewing court has the discretion to determine whether the findings that accompany an administrative agency adjudication are sufficient” and the “findings need only be enough to enable the Court to determine the questions and ensure that the conclusions follow from the facts.” Krebs Chrysler-Plymouth, Inc. v. State Bd. of Vehicle Mfrs., Dealers & Salespersons, 655 A.2d 190, 193 (Pa. Cmwlth. 1995).
Saturday, September 19, 2009
drivers license - seizure disorder - conclusive v. rebuttable presumption
Peachey v. PennDOT - Cmwlth. Court - August 13, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2251CD08_8-13-09.pdf
Following DOT v. Clayton, 684 A.2d 1060 (Pa. 1996), the court rejected the irrebutable presumption created by 75 Pa. C.S. 1519(c) and 67 Pa. Code 83.4 that a person who has had a seizure is not competent to drive until s/he has been free from seizures for a least 6 months.
In this case, a doctor wrote and testified that the driver had not been diagnosed with episodes of loss of consciousness that would interfere with the safe operation of a car, and that he did not think it was appropriate to apply the 6-month rule to this particular driver.
As the court had done in Clayton, the court here rejected DOT's arguments that driving in a right and not a privilege and rejected the irrebuttable presumption created by the regulation, noting that procedural due process required a "meaningful hearing" which included consideration of all evidence essential to a decision about a licensee's ability to drive safely. " '[S]ince the competency to drive is the paramount factor behind the instant regulations, any hearing which eliminates consideration of that very factor is violative of procedural due process.' "
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2251CD08_8-13-09.pdf
Following DOT v. Clayton, 684 A.2d 1060 (Pa. 1996), the court rejected the irrebutable presumption created by 75 Pa. C.S. 1519(c) and 67 Pa. Code 83.4 that a person who has had a seizure is not competent to drive until s/he has been free from seizures for a least 6 months.
In this case, a doctor wrote and testified that the driver had not been diagnosed with episodes of loss of consciousness that would interfere with the safe operation of a car, and that he did not think it was appropriate to apply the 6-month rule to this particular driver.
As the court had done in Clayton, the court here rejected DOT's arguments that driving in a right and not a privilege and rejected the irrebuttable presumption created by the regulation, noting that procedural due process required a "meaningful hearing" which included consideration of all evidence essential to a decision about a licensee's ability to drive safely. " '[S]ince the competency to drive is the paramount factor behind the instant regulations, any hearing which eliminates consideration of that very factor is violative of procedural due process.' "
Friday, September 18, 2009
child abuse - expungement - credibility - burden/standard of proof
Dauphin Co. CYS v. DPW - September 18, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/184CD09_9-18-09.pdf
The court affirmed the DPW order directing expungement of an indicated report of abuse. The case involved the alleged sexual abuse of a 16 year-old female student by her male driver education teacher. The case was decided (both by the ALJ and the Secretary, on appeal) based on the transcript in the related criminal case, in which the alleged abuser was found to be not guilty.
Credibility
The ALJ found the alleged victim to be credible. The DPW Secretary reversed that finding. The court rejected CYS's argument on this issue, noting the the "Supreme Court has held that the Secretary of Public Welfare or her designee is the ultimate fact finder in expungement proceedings, with the authority to make credibility determinations. C.K. v. DPW, 869 A.2d 48, 57 n.9 (Pa. Cmwlth. 2005) (citing R. v. DPW, 535 Pa. 440, 446, 636 A.2d 142, 154 (1994)). Accordingly, the County’s argument that the Secretary lacked authority to reverse the ALJ’s credibility determinations lacks merit. Further, the parties agreed to have the Bureau decide J.F.’s appeal based exclusively on the transcript of the related criminal trial. The remand hearing requested by the County would give it the proverbial second bite at the apple."
Burden/Standard of proof
The court also affirmed the finding that CYS failed to meet its burden of proof, noting that "the numerous inconsistencies in [alleged victim's] testimony and the evidence presented by [the alleged abuser] support the Secretary’s conclusion that [the alleged victim's] testimony was not credible. In an expungement case, the County bears the burden of proving that the actions of the perpetrator constitute child abuse within the meaning of the statute. C.F. v. DPW, 804 A.2d 755, 757 (Pa. Cmwlth. 2002).
"For the County to succeed, it was required to present “evidence which so preponderates in favor of a conclusion that it outweighs, in the mind of the factfinder, any inconsistent evidence and reasonable inferences drawn therefrom.” C.K., 869 A.2d at 52 n.6." The court noted that the alleged victim's testimony at the preliminary hearing and trial was "laced with inconsistencies involving, inter alia, the identity of the perpetrator, the location and timing of the alleged assault and whether her attacker ejaculated."
"In sum, the Secretary’s conclusion that [the alleged victim's] testimony lacked credibility supported her conclusion that the County failed to meet its burden of proof."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/184CD09_9-18-09.pdf
The court affirmed the DPW order directing expungement of an indicated report of abuse. The case involved the alleged sexual abuse of a 16 year-old female student by her male driver education teacher. The case was decided (both by the ALJ and the Secretary, on appeal) based on the transcript in the related criminal case, in which the alleged abuser was found to be not guilty.
Credibility
The ALJ found the alleged victim to be credible. The DPW Secretary reversed that finding. The court rejected CYS's argument on this issue, noting the the "Supreme Court has held that the Secretary of Public Welfare or her designee is the ultimate fact finder in expungement proceedings, with the authority to make credibility determinations. C.K. v. DPW, 869 A.2d 48, 57 n.9 (Pa. Cmwlth. 2005) (citing R. v. DPW, 535 Pa. 440, 446, 636 A.2d 142, 154 (1994)). Accordingly, the County’s argument that the Secretary lacked authority to reverse the ALJ’s credibility determinations lacks merit. Further, the parties agreed to have the Bureau decide J.F.’s appeal based exclusively on the transcript of the related criminal trial. The remand hearing requested by the County would give it the proverbial second bite at the apple."
Burden/Standard of proof
The court also affirmed the finding that CYS failed to meet its burden of proof, noting that "the numerous inconsistencies in [alleged victim's] testimony and the evidence presented by [the alleged abuser] support the Secretary’s conclusion that [the alleged victim's] testimony was not credible. In an expungement case, the County bears the burden of proving that the actions of the perpetrator constitute child abuse within the meaning of the statute. C.F. v. DPW, 804 A.2d 755, 757 (Pa. Cmwlth. 2002).
"For the County to succeed, it was required to present “evidence which so preponderates in favor of a conclusion that it outweighs, in the mind of the factfinder, any inconsistent evidence and reasonable inferences drawn therefrom.” C.K., 869 A.2d at 52 n.6." The court noted that the alleged victim's testimony at the preliminary hearing and trial was "laced with inconsistencies involving, inter alia, the identity of the perpetrator, the location and timing of the alleged assault and whether her attacker ejaculated."
"In sum, the Secretary’s conclusion that [the alleged victim's] testimony lacked credibility supported her conclusion that the County failed to meet its burden of proof."
Thursday, September 17, 2009
MR waiver services - proof of MR before age 21 - post-21 evidence
Heraty v. DPW - Cmwlth. Court - September 16, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/326CD09_9-16-09.pdf
The court remanded this case, in which the Petitioner requested mental retardation (MR) waiver-funded services. Petitioner is a 53 year old woman who has been registered with and receiving services from the county MR office for over 20 years. She sought additional funding, known as waiver funding due to the alleged severity of her mental retardation1 because her elderly mother, with whom she lives, will be unable to provide for her long-term care. Petitioner suffers from autism, is non-verbal and deaf, can use only rudimentary sign language and, aside from simple matters such as dressing and feeding herself, is completely dependent upon her mother for her care.
In order to qualify for the waiver services, Petitioner had to show that she was mentally retarded before her 22nd birthday, 55 Pa. Code §6210.63(3), which requires that "It has been certified that documentation to substantiate that the applicant’s or recipient’s conditions were manifest before the applicant’s or recipient’s 22nd birthday.
The ALJ rejected Petitioners application based solely on an evaluation in 1976 when she was 21, which showed that she had a partial IQ score of 98, making her not mentally retarded under the standards contained in 55 Pa. Code §4210.101a, a policy statement that lists IQ as one of various factors to consider when making a diagnosis of mental retardation.
By contrast, a 2008 psychological evaluation showed that she could not be adequately assessed due to her disabilities and, instead used adaptive functioning tests that could be substituted for IQ tests. On these tests, Petitioner scored at a one year, nine month level for communication, a six year, six month level for daily living, and a one year, nine month level for socialization. According to these tests, her composite age equivalent is three years, four months, which supports a classification of severe mental retardation, and that her disabilities have been present since childhood. The clinician’s report also stated that Petitioner’s developmental delay was present before 22 years of age.
Based on its opinion in Lycoming-Clinton County MH/MR Program v. DPW, 884 A.2d 382 (Pa. Cmwlth. 2005), the court held that it was error for the ALJ to rely solely on the 1976 IQ test, noting that "55 Pa. Code §4210.101(a) states that while an IQ score can be used, it is not always a reliable indicator of mental retardation, and other factors must also be considered where it does not accurately reflect the person’s real-life functioning abilities. Lycoming-Clinton County, 884 A.2d at 384-85...." [T]o rely solely on a full scale IQ score of 70 or below to diagnose MR [mental retardation] would be inconsistent with the statutory definition of MR....Notably, the statutory definition of MR does not require a base IQ score to diagnose an individual as mentally retarded and, in fact, does not mention IQ.... To determine if Petitioner is eligible for mental retardation waiver funded services, it is necessary for DPW to consider whether she is impaired in her maturation, learning and social adjustment, not to take an IQ score, let alone a partial IQ score, and automatically categorize her based upon that score."
All that the relevant regulation, 55 Pa. Code §6210.63(3), "requires is that 'documentation' is presented that “substantiates” that Petitioner’s mental retardation was manifest” before her 22nd birthday, not that the evaluation that resulted in the documentation occurred before her 22nd birthday."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/326CD09_9-16-09.pdf
The court remanded this case, in which the Petitioner requested mental retardation (MR) waiver-funded services. Petitioner is a 53 year old woman who has been registered with and receiving services from the county MR office for over 20 years. She sought additional funding, known as waiver funding due to the alleged severity of her mental retardation1 because her elderly mother, with whom she lives, will be unable to provide for her long-term care. Petitioner suffers from autism, is non-verbal and deaf, can use only rudimentary sign language and, aside from simple matters such as dressing and feeding herself, is completely dependent upon her mother for her care.
In order to qualify for the waiver services, Petitioner had to show that she was mentally retarded before her 22nd birthday, 55 Pa. Code §6210.63(3), which requires that "It has been certified that documentation to substantiate that the applicant’s or recipient’s conditions were manifest before the applicant’s or recipient’s 22nd birthday.
The ALJ rejected Petitioners application based solely on an evaluation in 1976 when she was 21, which showed that she had a partial IQ score of 98, making her not mentally retarded under the standards contained in 55 Pa. Code §4210.101a, a policy statement that lists IQ as one of various factors to consider when making a diagnosis of mental retardation.
By contrast, a 2008 psychological evaluation showed that she could not be adequately assessed due to her disabilities and, instead used adaptive functioning tests that could be substituted for IQ tests. On these tests, Petitioner scored at a one year, nine month level for communication, a six year, six month level for daily living, and a one year, nine month level for socialization. According to these tests, her composite age equivalent is three years, four months, which supports a classification of severe mental retardation, and that her disabilities have been present since childhood. The clinician’s report also stated that Petitioner’s developmental delay was present before 22 years of age.
Based on its opinion in Lycoming-Clinton County MH/MR Program v. DPW, 884 A.2d 382 (Pa. Cmwlth. 2005), the court held that it was error for the ALJ to rely solely on the 1976 IQ test, noting that "55 Pa. Code §4210.101(a) states that while an IQ score can be used, it is not always a reliable indicator of mental retardation, and other factors must also be considered where it does not accurately reflect the person’s real-life functioning abilities. Lycoming-Clinton County, 884 A.2d at 384-85...." [T]o rely solely on a full scale IQ score of 70 or below to diagnose MR [mental retardation] would be inconsistent with the statutory definition of MR....Notably, the statutory definition of MR does not require a base IQ score to diagnose an individual as mentally retarded and, in fact, does not mention IQ.... To determine if Petitioner is eligible for mental retardation waiver funded services, it is necessary for DPW to consider whether she is impaired in her maturation, learning and social adjustment, not to take an IQ score, let alone a partial IQ score, and automatically categorize her based upon that score."
All that the relevant regulation, 55 Pa. Code §6210.63(3), "requires is that 'documentation' is presented that “substantiates” that Petitioner’s mental retardation was manifest” before her 22nd birthday, not that the evaluation that resulted in the documentation occurred before her 22nd birthday."
Tuesday, September 15, 2009
federal courts - civil rights - attorney fees - award to defendant
McCarthy v. Darman - ED Pa. - September 9, 2009
http://www.paed.uscourts.gov/documents/opinions/09D1126P.pdf
42 U.S.C. § 1988 allows a court to award attorneys’ fees to the prevailing party in a § 1983 case. Defendants in a § 1983 action are eligible to recover attorneys’ fees under § 1988, but a prevailing defendant must meet a more stringent standard than a prevailing plaintiff in order to do so.... A prevailing defendant should only be awarded attorneys’ fees if the plaintiff’s claim was “frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so.”
The Third Circuit has articulated several factors that should be considered when determining whether a claim was frivolous, including “whether the plaintiff established a prima facie case, the defendant offered to settle, the trial court dismissed the case prior to trial or the case continued until a trial on the merits.” In addition, the court should consider whether the issues litigated were ones of first impression, and what the real risk of the alleged injury was to the plaintiff.
Each case must be decided individually, however, and these factors are “guidelines, not strict rules.” “[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.”
In this case, the court held that plaintiff's substantive due process claims were frivolous but that his procedure due process claims were not, so the defendant's claim for fees was denied.
http://www.paed.uscourts.gov/documents/opinions/09D1126P.pdf
42 U.S.C. § 1988 allows a court to award attorneys’ fees to the prevailing party in a § 1983 case. Defendants in a § 1983 action are eligible to recover attorneys’ fees under § 1988, but a prevailing defendant must meet a more stringent standard than a prevailing plaintiff in order to do so.... A prevailing defendant should only be awarded attorneys’ fees if the plaintiff’s claim was “frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so.”
The Third Circuit has articulated several factors that should be considered when determining whether a claim was frivolous, including “whether the plaintiff established a prima facie case, the defendant offered to settle, the trial court dismissed the case prior to trial or the case continued until a trial on the merits.” In addition, the court should consider whether the issues litigated were ones of first impression, and what the real risk of the alleged injury was to the plaintiff.
Each case must be decided individually, however, and these factors are “guidelines, not strict rules.” “[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.”
In this case, the court held that plaintiff's substantive due process claims were frivolous but that his procedure due process claims were not, so the defendant's claim for fees was denied.
mortgage foreclosure - standing - post-complaint assignment
US Bank v. Mallory - Superior Court - September 14, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15045_09.pdf
The Superior Court denied the homeowner's petition to open/strike a default judgment. The Petition to Strike relied on the fact that, at the time the complaint was filed, the mortgage had not been assigned to plaintiff but rather was alleged to be in the process of being assigned. The homeowner claimed that this failure was in violation of Pa. RCP 1147(a)(1), which requires a statment of the date of assignment and the place where it is recorded, and of Pa. R.C.P. 1019(i), which requires that, where claims are based a writing, the writing must be attached.
Plaintiff filed its foreclosure complaint on November 14, 2007. The mortgage was not assigned to plaintiff untilDecember 28, 2007, and was not recorded until January 15, 2008 -- after a default judgment had already been entered against the homeowner, for failure to respond to the complaint.
Petition to Strike
The court concluded that "there was not a fatal defect apparent on the record" and that the plaintiff "sufficiently set forth the existence and date of the mortgage," the fact that plaintiff was the mortgage holder and "was now the legal owner of the mortgage, thereby indicating it had assumed all the rights and remedies related to the mortgage, and the fact [plaintiff] was seeking to formalize the assignment....Simply put, [plaintiff's] complaint sufficiently put [the homeowner] on notice of [plaintiff's] claim of interest with regard to the subject mortgage. Contrary to [the homeowner's] suggestion, we conclude that Pa.R.C.P. 1147(a)(1) does not require that a party have a recorded assignment as a prerequisite to filing a complaint in mortgage foreclosure."
Concerning the failure to attach the assignment to the complaint, as required by Pa. R.C.P. 1019(i), the court said that the "averment that [plaintiff] was in the process of formalizing the assignment sufficiently explained why, under Pa.R.C.P. 1019, a copy of the written assignment was not attached to the complaint. Thereafter, as [plaintiff] explained in the complaint that it was in the process of doing, the written assignment was executed on December 28, 2007, and recorded on January 15, 2008. We are convinced that [plaintiff] adequately met the requirements of Pa.R.C.P. 1147 and 1019, and we note that, to the extent [the homeowner] believes [plaintiff] was not the legal owner of the mortgage, who was in the process of formalizing the assignment, then the proper recourse would have been to go beyond the face of the record and seek to open the judgment on this basis."
The court squarely rejected the argument that "the trial court should have granted [the homeowner's] to strike since it was apparent on the face of the record that [plaintiff] did not have standing to file a complaint in mortgage foreclosure against [the homeowner]. The “crux” of [homeowner's] argument is that, before [plaintiff] could file a complaint in mortgage foreclosure, [plaintiff] was required to have executed and recorded a written assignment..., thereby indicating it was the real party in interest. We reject this argument....Simply put, contrary to [the homeowner's] suggestion, the recording of an assignment of the mortgage was not a prerequisite to plaintiff/assignee having standing to seek enforcement of the mortgage via a mortgage foreclosure action."
Petition to Open
The court noted the the homeowner had "averred meritorious defenses, namely, that she lacked a security interest in the property due to her rescission of the loan, the loan should not be enforced since it is a predatory loan, the loan was void due to the broker’s violation of Pennsylvania’s Credit Services Act, and the loan violated Pennsylvania’s consumer protection statute."
However, it did not consider these defenses, holding that the homeowner's petition to open filed 82 days after the entry of judgment was not "promptly filed" and that she did not have a valid excuse for not filing earlier, rejecting her claim of lack of sophistication and belated awareness of potentially valid defenses. The court said that "this is a case where [the homeowner], despite numerous notices to secure counsel, simply did not do so until approximately three months after the complaint was filed and six weeks after the default judgment was entered against her. The fact [she]may be unsophisticated in legal and financial matters is all the more reason she should have heeded the notices to secure legal counsel at once, and her deliberate decision not to defend does not provide a reasonable explanation or excuse necessary to open the default judgment." Thus, "even assuming [she] pleaded a meritorious defense, the trial court properly denied [the homeowner's] petition to open the default judgment."
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15045_09.pdf
The Superior Court denied the homeowner's petition to open/strike a default judgment. The Petition to Strike relied on the fact that, at the time the complaint was filed, the mortgage had not been assigned to plaintiff but rather was alleged to be in the process of being assigned. The homeowner claimed that this failure was in violation of Pa. RCP 1147(a)(1), which requires a statment of the date of assignment and the place where it is recorded, and of Pa. R.C.P. 1019(i), which requires that, where claims are based a writing, the writing must be attached.
Plaintiff filed its foreclosure complaint on November 14, 2007. The mortgage was not assigned to plaintiff untilDecember 28, 2007, and was not recorded until January 15, 2008 -- after a default judgment had already been entered against the homeowner, for failure to respond to the complaint.
Petition to Strike
The court concluded that "there was not a fatal defect apparent on the record" and that the plaintiff "sufficiently set forth the existence and date of the mortgage," the fact that plaintiff was the mortgage holder and "was now the legal owner of the mortgage, thereby indicating it had assumed all the rights and remedies related to the mortgage, and the fact [plaintiff] was seeking to formalize the assignment....Simply put, [plaintiff's] complaint sufficiently put [the homeowner] on notice of [plaintiff's] claim of interest with regard to the subject mortgage. Contrary to [the homeowner's] suggestion, we conclude that Pa.R.C.P. 1147(a)(1) does not require that a party have a recorded assignment as a prerequisite to filing a complaint in mortgage foreclosure."
Concerning the failure to attach the assignment to the complaint, as required by Pa. R.C.P. 1019(i), the court said that the "averment that [plaintiff] was in the process of formalizing the assignment sufficiently explained why, under Pa.R.C.P. 1019, a copy of the written assignment was not attached to the complaint. Thereafter, as [plaintiff] explained in the complaint that it was in the process of doing, the written assignment was executed on December 28, 2007, and recorded on January 15, 2008. We are convinced that [plaintiff] adequately met the requirements of Pa.R.C.P. 1147 and 1019, and we note that, to the extent [the homeowner] believes [plaintiff] was not the legal owner of the mortgage, who was in the process of formalizing the assignment, then the proper recourse would have been to go beyond the face of the record and seek to open the judgment on this basis."
The court squarely rejected the argument that "the trial court should have granted [the homeowner's] to strike since it was apparent on the face of the record that [plaintiff] did not have standing to file a complaint in mortgage foreclosure against [the homeowner]. The “crux” of [homeowner's] argument is that, before [plaintiff] could file a complaint in mortgage foreclosure, [plaintiff] was required to have executed and recorded a written assignment..., thereby indicating it was the real party in interest. We reject this argument....Simply put, contrary to [the homeowner's] suggestion, the recording of an assignment of the mortgage was not a prerequisite to plaintiff/assignee having standing to seek enforcement of the mortgage via a mortgage foreclosure action."
Petition to Open
The court noted the the homeowner had "averred meritorious defenses, namely, that she lacked a security interest in the property due to her rescission of the loan, the loan should not be enforced since it is a predatory loan, the loan was void due to the broker’s violation of Pennsylvania’s Credit Services Act, and the loan violated Pennsylvania’s consumer protection statute."
However, it did not consider these defenses, holding that the homeowner's petition to open filed 82 days after the entry of judgment was not "promptly filed" and that she did not have a valid excuse for not filing earlier, rejecting her claim of lack of sophistication and belated awareness of potentially valid defenses. The court said that "this is a case where [the homeowner], despite numerous notices to secure counsel, simply did not do so until approximately three months after the complaint was filed and six weeks after the default judgment was entered against her. The fact [she]may be unsophisticated in legal and financial matters is all the more reason she should have heeded the notices to secure legal counsel at once, and her deliberate decision not to defend does not provide a reasonable explanation or excuse necessary to open the default judgment." Thus, "even assuming [she] pleaded a meritorious defense, the trial court properly denied [the homeowner's] petition to open the default judgment."
Friday, September 11, 2009
social security - disability - obesity - findings/reasons
Diaz v. Commissioner or Social Security - 3rd Circuit - August 12, 2009
http://www.ca3.uscourts.gov/opinarch/084067p.pdf
Claimant's case was remanded because of the failure of the ALJ to properly evaluate the effect of her morbid obesity on her ability to work.
The ALJ’s ruling is not supported by substantial evidence because, contrary to SocialSecurity Ruling (“SSR”) 00-3p, no consideration was given to Diaz’s severe obesity. The ALJ acknowledged this impairment at step two but failed to consider its impact, in combination with her other impairments, at step three, as required.
SSR 00-3p replaced an automatic designation of obesity as a Listed impairment, based on a claimant’s height and weight, with an individualized inquiry, focused on the combined effect of obesity and other severe impairments afflicting the claimant: “We will also find equivalence if an individual has multiple impairments, including obesity, no one of which meets or equals the requirements of a listing, but the combination of impairments is equivalent in severity to a listed impairment.” Although SSR 00-3p was superseded by SSR 02-1p, SSR 02-1p did not materially amend SSR 00-3p. See Rutherford v. Barnhart, 399 F.3d 546, 552 n.4 (3d Cir. 2005).
SSR 00-3p instructs that “obesity may increase the severity of coexisting or related impairments to the extent that the combination of impairments meets the requirements of a listing. This is especially true of musculoskeletal, respiratory, and cardiovascular impairments. It may also be true for other coexisting or related impairments, including mental disorders.” Hence, an ALJ must meaningfully consider the effect of a claimant’s obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step.
In Burnett, the court held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements that a condition does not constitute the medical equivalent of a listed impairment are insufficient. The ALJ must provide a “discussion of the evidence” and an “explanation of reasoning” for his conclusion sufficient to enable meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n.3 (3d Cir. 2004).
The court also remanded on the basis of the ALJ's failure to give proper wieght and consideration to the treating physician's opinion, which was well supported by the evidence.
http://www.ca3.uscourts.gov/opinarch/084067p.pdf
Claimant's case was remanded because of the failure of the ALJ to properly evaluate the effect of her morbid obesity on her ability to work.
The ALJ’s ruling is not supported by substantial evidence because, contrary to SocialSecurity Ruling (“SSR”) 00-3p, no consideration was given to Diaz’s severe obesity. The ALJ acknowledged this impairment at step two but failed to consider its impact, in combination with her other impairments, at step three, as required.
SSR 00-3p replaced an automatic designation of obesity as a Listed impairment, based on a claimant’s height and weight, with an individualized inquiry, focused on the combined effect of obesity and other severe impairments afflicting the claimant: “We will also find equivalence if an individual has multiple impairments, including obesity, no one of which meets or equals the requirements of a listing, but the combination of impairments is equivalent in severity to a listed impairment.” Although SSR 00-3p was superseded by SSR 02-1p, SSR 02-1p did not materially amend SSR 00-3p. See Rutherford v. Barnhart, 399 F.3d 546, 552 n.4 (3d Cir. 2005).
SSR 00-3p instructs that “obesity may increase the severity of coexisting or related impairments to the extent that the combination of impairments meets the requirements of a listing. This is especially true of musculoskeletal, respiratory, and cardiovascular impairments. It may also be true for other coexisting or related impairments, including mental disorders.” Hence, an ALJ must meaningfully consider the effect of a claimant’s obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step.
In Burnett, the court held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements that a condition does not constitute the medical equivalent of a listed impairment are insufficient. The ALJ must provide a “discussion of the evidence” and an “explanation of reasoning” for his conclusion sufficient to enable meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n.3 (3d Cir. 2004).
The court also remanded on the basis of the ALJ's failure to give proper wieght and consideration to the treating physician's opinion, which was well supported by the evidence.
Friday, September 04, 2009
mortgages - HEMAP - reasonable prospect - speculative income
Smeal v. PHFA - Cmwlth. Court - August 5, 2009 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2216CD08_8-5-09.pdf
The court upheld PHFA's decision that the applicant for HEMAP assistance from PHFA did not have a reasonable prospect of resuming full mortgage payments within the statutorily specified time -- in that case, 24 months.
The agency found that the applicant was "financially overextended" and that her expenses had exceeded her income for some time. Most pertinent, it found that her claims of future income from a personal business were "purely speculative" and did not establish the required "reasonable prospect" . The court thus approved of the agency's consideration of the applicant's "actual income history without considering...speculative income" that she claimed she would receive.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2216CD08_8-5-09.pdf
The court upheld PHFA's decision that the applicant for HEMAP assistance from PHFA did not have a reasonable prospect of resuming full mortgage payments within the statutorily specified time -- in that case, 24 months.
The agency found that the applicant was "financially overextended" and that her expenses had exceeded her income for some time. Most pertinent, it found that her claims of future income from a personal business were "purely speculative" and did not establish the required "reasonable prospect" . The court thus approved of the agency's consideration of the applicant's "actual income history without considering...speculative income" that she claimed she would receive.
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