UC - voluntary quit - working conditions, health reasons

Astolfi v. UCBR - Cmwlth. Court - May 27, 2010 (2-1 decision)


http://www.pacourts.us/OpPosting/Cwealth/out/1866CD09_5-27-10.pdf


The court reversed a UCBR decision in favor of the claimant, ruling "[c]oncluding that the facts, as found, do not support the Board’s conclusion that Claimant resigned from her job for necessitous and compelling reasons." It found that her work situation was "uncomfortable but not intolerable," and that a quit for health reasons was negated by claimant's failure to mention those reasons to her employer.


Claimant testified that a chaotic work environment caused her to develop high blood pressure and to incur bouts with hives. Claimant testified that two doctors had advised her to resign from her job. In support, she introduced a note from her psychiatrist stating that Claimant “expressed to me severe stress from the conditions at her work.” Claimant also offered a note from her chiropractor opining that Claimant’s headaches “were likely associated with clenching of the jaw and cervical spine dysfunction.” Dr. Kelly observed that clenching of the teeth is a “direct response to stress,” and that Claimant had complained of work stress on several occasions. Dr. Kelly wrote that she had “seen a difference in [Claimant’s] health since she left her job.”


Claimant believed her resignation was medically necessary, and reiterated at a remand hearing that two doctors had advised her to resign. Claimant offered a follow-up letter from her chiropractor stating that "I had asked [Claimant] on several occasions if it would be possible for her to leave her job due to medical reasons. Her current occupation was adversely affecting her health and I felt that it was necessary for her to leave her job if she was going to improve. Her health was declining largely due to the ongoing stress at her work place." At the remand hearing, the employer, a dentist, disputed Claimant’s characterization of the work atmosphere and the events leading up to Claimant’s resignation.


The Board reversed the Referee’s denial of benefits and granted Claimant’s claim for benefits. Acknowledging that verbal reprimands do not justify a voluntary quit, the Board also observed that this is not the case for verbal abuse. The Board credited Claimant’s testimony that she was “verbally abused” by the employer and found, further, that Claimant took reasonable steps to preserve her employment by presenting her concerns to the employer.


The court found, as a matter of law, that claimant had not shown a necessitous and compelling reason to quit her job. Whether a claimant had cause of a necessitous and compelling nature for leaving work is a question of law subject to this Court’s review. Wasko v. UCBR, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). Based upon the record before us, we cannot say that Claimant’s work environment was intolerable or that a reasonable person would have acted in the same manner.

Our case law distinguishes normal workplace strains from pressures extreme enough to justify a resignation. As we have explained: Resentment of a reprimand, absent unjust accusations, profane language or abusive conduct …; mere disappointment with wages …; and personality conflicts, absent an intolerable working atmosphere … do not amount to necessitous and compelling causes. Lynn v. UCBR, 427 A.2d 736, 737 (Pa. Cmwlth. 1981).

Claimant was not publicly reprimanded or accused of being a criminal like her counterpart in First Federal. She was not subjected to the kinds of intolerable abusive language experienced by successful claimants in other voluntary quit cases. Claimant’s testimony demonstrated “resentment” and “personality conflicts,” Lynn, 427 A.2d at 737, but not an intolerable work environment. Being “yelled” at for talking too much to patients, which is the worst Claimant suffered, is not comparable to being called names or being unjustly accused of criminal conduct. Her work environment was uncomfortable, but not intolerable.

The majority rejected the dissent's emphasis on the fact that Claimant was advised by her chiropractor to quit her job, stating that a reasonable person suffering from rashes, headaches and high blood pressure caused by circumstances at work would feel compelled to terminate her employment. The majority said that this was "beside the point, since Claimant did not establish the elements necessary to have a compelling medical reason to quit.

Pigeon-holing claimant's argument as one relying solely on health reasons, the majority said that to establish health problems as a compelling reason to quit, the claimant must (1) offer competent testimony that adequate health reasons existed to justify the voluntary termination, (2) have informed the employer of the health problems and (3) be available to work if reasonable accommodations can be made. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982). Failure to meet any one of these conditions bars a claim for unemployment compensation….Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695, 698 (Pa. Cmwlth. 1994) (emphasis added) (citation omitted). Claimant met with the employer to discuss the tension between her coworkers, but she never informed the employer of any health problems or that her chiropractor had advised her to quit. Absent such evidence, Claimant’s alleged health problems are simply not relevant.

Dissent

Here, Employer’s verbal abuse produced pressure on Claimant that was both real and substantial. Indeed, the pressure caused Claimant to suffer from rashes, headaches and high blood pressure. Moreover, any reasonable person suffering such physical maladies as a result of circumstances at work would be compelled to terminate her employment. In fact, Claimant’s physician advised Claimant to do just that. To the extent Employer’s verbal assaults on Claimant were due to personality conflicts, given their effect on Claimant’s health, they were intolerable. A claimant should not be required to continue to endure a work environment that causes such afflictions as rashes, headaches and high blood pressure.

The majority states, “We cannot say on this record that Claimant’s work environment was intolerable or that a reasonable person would have acted in the same manner.” In other words, the majority concludes that: (1) Claimant should continue to tolerate the rashes, headaches and high blood pressure caused by Employer’s insults and yelling; and (2) Claimant’s physician is not a reasonable person for suggesting that Claimant quit her job for the sake of her health. I cannot agree with these conclusions.

The majority also suggests that, pursuant to case law, verbal abuse cannot be a necessitous and compelling reason to leave employment unless it is public, racial or sexual in nature. (Majority op. at 6-7.) However, abusive conduct of any kind is always a necessitous and compelling reason for leaving employment. First Federal Savings Bank v. UCBR, 957 A.2d 811 (Pa. Cmwlth. 2008) (stating that a claimant need not indefinitely subject herself to abusive conduct). Moreover, whether an employer’s conduct is abusive is a question of fact, and the majority acknowledges that the “Board credited Claimant’s testimony that she was ‘verbally abused’ by [Employer].”

Accordingly, I would affirm.

consumer - RESPA - perpetrator of Ponzi scheme is not a "loan servicer"

Jones v. ABN AMRO Mortgage Group, et al. - 3d Circuit - May 25, 2010


http://www.ca3.uscourts.gov/opinarch/082353p.pdf

Douglas and Andrea Jones (the “Joneses”) filed suit against, inter alia, Appellees SunTrust Mortgage, Inc. and Countrywide Home Loans, Inc., who were the “lenders” that provided mortgage loans to the Joneses. The Joneses asserted claims for a declaratory judgment, negligence, and violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605. At the heart of the issue before us is a mortgage loan-servicing Ponzi scheme. Of particular interest is whether the perpetrator of the Ponzi scheme can be considered a loan “servicer” under RESPA. The District Court dismissed the Joneses’ Complaint. We will affirm.

abuse - expungement - founded report - no right to appeal hearing

D.D. v. DPW - Cmwlth Court - May 21, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1454CD09_5-21-10.pdf


There is no right to appeal from a founded report, based on court adjudication of dependency and abuse in another, independent case.


Unlike the case of an indicated report of abuse, there is no similar provision affording a perpetrator named in a founded report the right to an administrative hearing following the Secretary’s denial of his or her expunction request. K.R. v. Dep’t of Pub. Welfare, 950 A.2d 1069 (Pa. Cmwlth. 2008) (citing J.G. v. Dep’t of Pub. Welfare, 795 A.2d 1089 (Pa. Cmwlth. 2002)).


A founded report is based on a judicial adjudication wherein the government alleging child abuse by the perpetrator met its burden of proving it. C.S. v. Dep’t of Pub. Welfare, 879 A.2d 1274 (Pa. Cmwlth. 2005) . In an expunction request by an individual named as a perpetrator in a founded report, the Secretary may rely on the trial court’s findings of abuse in the underlying judicial adjudication to dismiss the expunction request where the judicial adjudication also named the individual as the perpetrator of the abuse. C.J. v. Dep’t of Pub. Welfare, 960 A.2d 494 (Pa. Cmwlth. 2008) (citing K.R.) An administrative hearing following denial of the expunction request is not mandated because the named perpetrator had a full and fair opportunity to defend against the allegations in the underlying judicial adjudication. Id. That individual cannot thereafter collaterally attack the trial court’s dependency and abuse findings in an expunction request under the CPSL. Id.

UC - voluntary quit - abusive conduct, cursing by employer

Karpowich v. UCBR - Cmwlth Court - May 19, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/2242CD09_5-19-10.pdf


Grant of benefits upheld for claimant whose employer cursed at him on numerous occasions.


An employee who is subject to unjust accusations, abusive conduct or profanity at the workplace has adequate justification to terminate employment and avoid disqualification provided notice of the conduct has been given to the employer. Moskovitz v. UCBR, 635 A.2d 723 (Pa. Comwlth. 1993), citing Forty v. UCBR, 447 A.2d 1078 (Pa. Cmwlth. 1982); Willet v. UCBR, 429 A.2d 1282 (Pa. Cmwlth. 1981). If the employer is already aware of the problem, notice may not be required. Danner v. UCBR, 443 A.2d 1211 (Pa. Comwlth. 1982).

UC - admission into ARD not willful misconduct

Bruce v. UCBR - Cmwlth Court - May 19, 2010 (2-1)

http://www.pacourts.us/OpPosting/Cwealth/out/2227CD09_8-9-10.pdf

Claimant was found ineligible for violating the employer's no call/no show policy, relating to her failure to call because of an arrest, in which she subsequently was admitted to an ARD program.



In order to determine whether her incarceration constituted good cause for not calling in, the Board looked at whether Claimant’s incarceration was through no fault of her own. The Board conceded that, if on remand, Claimant had put forth evidence that “she had been acquitted of the charges,” Claimant’s incarceration, and her subsequent inability to call off from work, would have resulted through no fault of her own, and, as such, “benefits could not be denied” because her failure to call off would constitute good cause. Still, it found that she had committed willful misconduct, in spite of the ARD disposition.


But in the course of the court opinion, it stated that: " Where a claimant is discharged for a criminal act, such as theft, the subsequent acceptance into an ARD program is insufficient proof of willful misconduct. UCBR v. Vereen, 370 A.2d 1228, 1231 (Pa. Cmwlth. 1977)."


Dissent
The dissent argued that the "question is whether Claimant’s incarceration constitutes good cause for her failing to call off work. As the majority states, the Board concedes that, if Claimant had been acquitted of the charges, the Board would have found that her incarceration was through no fault of her own and would have concluded thatClaimant had good cause for violating Employer’s policy and could not be denied benefits. However, because Claimant entered into the ARD program, the Board found that Claimant’s incarceration was her own fault, i.e., that Claimant was guilty of the charges against her. In my view, the Board’s finding lacks support in the law governing ARD and cannot stand.


Because the Board has conceded that Claimant would be entitled to benefits had she been acquitted, because the Rules governing ARD provide that its successful completion results in the dismissal of charges, because the courts have recognized that entrance into the ARD program is not necessarily a confession of guilt and because the courts have likened ARD to acquittal, I would reverse.

custody - jurisdiction - continuing - UCCJEA - significant connection

Rennie v. Rosenthal - Superior Court - May 17, 2010


http://www.pacourts.us/OpPosting/Superior/out/A31007_09.pdf



Pennsylvania courts, which entered the initial custody order, continue to have jurisdiction under 23 Pa.C.S.A. § 5422(a)(1) of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), even where mother and child have lived primarily in another state for the past 6 years, since Pennsylvania continues to have a "significant connection" with the child or one parent or person acting as a parent.


Under the plain meaning of section 5422(a)(1), a court that makes an initial custody determination retains exclusive, continuing jurisdiction until neither the child nor the child and one parent or a person acting as a parent have a significant connection with Pennsylvania and substantial evidence concerning the child’s care, protection, training, and personal relationships is no longer available here. The use of the term “and” requires that exclusive jurisdiction continues in Pennsylvania until both a significant connection to Pennsylvania and the requisite substantial evidence are lacking. In other words, Pennsylvania will retain jurisdiction as long as a significant connection with Pennsylvania exists or substantial evidence is present.


Based upon the evidence, Child and Father have a significant connection to Pennsylvania, which thus retains jurisdiction over the case. As indicated in clear language in the statute, a “significant connection” will be found where one parent resides and exercises parenting time in the state and maintains a meaningful relationship with the child. The statute does not specify that courts must determine that the parent with primary custody of a child has a significant connection with the state to retain jurisdiction. Here, as noted above, the evidence established that Father lives in the Philadelphia area and he and Child have a significant connection to Pennsylvania.

employment - Fair Credit Reporting Act

Smith v. HireRight Solutions, Inc. - ED PA. - May 11, 2010


http://www.paed.uscourts.gov/documents/opinions/10D0473P.pdf (20 pp.)

Defendant's motion to dismiss Plaintiff’s Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) denied.

The litigation was initiated as a consumer class action based upon Defendant’s alleged willful violation of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq. (“FCRA”). The action is brought on behalf of the thousands of employment applicants throughout the country who have purportedly been the subject of prejudicial, misleading, and inaccurate background reports performed by Defendant and sold to employers.

According to the facts set forth in the Complaint, Defendant is a consumer reporting agency (“CRA”), which maintains consumer files containing public record information, including the criminal record history of individuals. Defendant sells these consumer files to potential employers – consisting of a customer base of more than 28,000 businesses across the country – wishing to investigate the criminal history of various job applicants. Under the FCRA, Defendant, as a CRA, is required to notify the consumer of the fact that it is reporting public record information and to whom that information is being reported. Defendant must also follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates. The Complaint alleges, however, that, as a matter of practice, Defendant neither notifies the consumer contemporaneously of its reporting of adverse public record information, nor does it maintain strict procedures designed to insure that such information is complete, up-to-date, and accurate. Moreover, according to the Complaint, Defendant regularly reports single incidents multiple times so that the consumer’s criminal record history appears much more serious than it actually is. By the time the consumer is made aware of the inaccurate and duplicative reporting, the report has already been sold to the requesting employer and become the basis of an employment decision.

UC - employee v. indpt. contractor

Resource Staffing v. UCBR - Cmwlth. Court - May 13, 2010

http://www.pacourts.us/OpPosting/Cwealth/out/1875CD09_5-13-10.pdf

Claimant held to have been disqualified under 43 P.S. §802(h), which provides that an employee shall be ineligible for compensation for any week in which he is engaged in self-employment.

Claimant is an experienced Microsoft systems engineer and administrator. RSI, an information technology consulting agency, located Claimant’s resume on Monster.com and offered him a six-month contract position. Claimant signed a Contractor Agreement on October 30, 2006, and he worked for Carpenter Technology (the client), at the client’s facility, from November 13, 2006, through September 20, 2007.

Section 4(l)(2)(B) of the Law creates a presumption that an individual working for wages is an employee. Beacon Flag Car Company, Inc. v. UCBR, 910 A.2d 103 (Pa. Cmwlth. 2006). A putative employer has the burden to overcome this presumption by demonstrating that: (1) the individual was free from control or direction in the performance of his work;6 and (2) the individual was customarily engaged in an independently established trade, occupation, profession or business while providing such services.
We agree with RSI that the record does not support the Board’s pertinent findings of fact; to the contrary, the record reflects that RSI did not control or have the authority to control Claimant’s work or manner of work. Claimant himself testified that RSI did not provide him with his daily assignments. Instead, Claimant testified that he was given work each day by a manager employed by the client and that he was supervised by numerous individuals who worked for the client.7 (R.R. at 17a, 25a.) This testimony is consistent with the terms of the Contractor Agreement, which state that Claimant shall have the discretion to control the means and manner of his work and that the evaluation of his performance shall be made by the client.

We conclude that the Board’s analysis distorts the evidence. The evidence of record indicates that RSI exercised the minimal amount of control necessary to ensure the quality of services provided to the client. Therefore, we conclude that the Board’s contrary findings of fact are not supportedby substantial evidence and that RSI satisfied its burden to demonstrate that it did not control Claimant’s work or manner of performance.

The second prong of the independent contractor test focuses on whether a claimant was engaged in an independently established trade. Viktor, Ltd. v. Department of Labor and Industry, 586 Pa. 196, 892 A.2d 781 (Pa. 2006). The following factors are relevant in determining if a claimant operated independently: (1) whether the individual was capable of performing the activities in question to anyone who wished to avail themselves of the services; and (2) whether the nature of the business compelled the individual to look to only a single employer for the continuation of such services. Krum v. UCBR, 689 A.2d 330 (Pa. Cmwlth. 1997).

Claimant was not compelled to look to one employer for the continuation of services; Claimant was permitted to provide services to RSI, the client or other employers. In addition, although the Contractor Agreement included a non-compete clause, this Court has repeatedly held that the inclusion of a non-compete clause, by itself, does not establish an employee and employer relationship. Beacon. Thus, we conclude that the evidence does not support the Board’s determination but, instead, establishes that RSI satisfied its burden to demonstrate that Claimant operated independently.

Because we conclude that Claimant was an independent contractor, we hold that Claimant is ineligible for unemployment benefits pursuant to section 402(h) of the Law. Accordingly, we reverse the decision of the Board.

standing - associations

Energy Conservation Council v. PUC - Cmwlth. Court - May 6, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/51CD09_5-6-10.pdf


An association was held to have standing to challenge a PUC ruling concerning the siting of utility lines.

If a party is not adversely affected in any way by the determination being challenged, the party is not aggrieved and, thereby, has no standing to obtain a judicial resolution of the challenge. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280 (1975). “[I]t is not sufficient for the person claiming to be ‘aggrieved’ to assert the common interest of all citizens in procuring obedience to the law.” Id. at 192, 346 A.2d at 280-81. In order to be aggrieved, a party must have a substantial interest in the subject matter of the litigation, the interest must be direct, and the interest must be immediate. Id. The substantial interest requirement means that “there must be some discernable adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law.” Id. at 195, 346 A.2d at 282. A direct interest “means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which [the person] complains.” Id. Finally, the interest must “be ‘immediate’ and ‘not a remote consequence of the judgment.’” Id. at 197, 346 A.2d at 283 (quoting Keystone Raceway Corp. v. State Harness Racing Commission, 405 Pa. 1, 7-8, 173 A.2d 97, 100 (1961)).

An association may have standing as a representative of its members. Tripps Park v. PUC, 415 A.2d 967, 970 (Pa. Cmwlth. 1980). Thus, as long as an organization “has at least one member who has or will suffer a direct, immediate, and substantial injury to an interest as a result of the challenged action[, i.e., is aggrieved, the organization] has standing.” Parents United for Better Schools v. School District of Philadelphia, 646 A.2d 689, 692 (Pa. Cmwlth. 1994) (PUBS). Tripps Park, 415 A.2d at 970.

A review of ECC’s protest and the list of its members clearly reveals that ECC has standing to appeal the PUC’s determination. ECC has at least sixteen members that are located in and around the area in which the facilities, including the potentially 200-foot tall tower will be located. Nine of ECC’s members are located within the proposed rights of way for the facilities. Further, ECC members testified as to the impacts the siting, construction, operation, and maintenance of the facilities would have on them, their properties, their businesses, and their communities. Additionally, ECC members include affected ratepayers. The ECC and its members, some of whom own property within the rights of way or are affected ratepayers, have an interest in the PUC’s determination that is more than just the interest shared by all citizens to prevent the construction of a HV transmission line. Moreover, the harm alleged by the ECC on behalf of its members, including increased rates and decreased property values, is directly caused by the PUC’s approval of the facilities applications.

nursing - license - denial - criminal convictions

Bethea-Tumani v. State Board of Nursing - Cmwlth Court - April 2010

http://www.pacourts.us/OpPosting/Cwealth/out/1547CD09_4-28-10.pdf

In this appeal, Glecina Bethea-Tumani1 (Applicant) petitions for review of a final adjudication and order of the State Board of Nursing (Board), denying her application for a license as a registered nurse by examination under the Professional Nursing Law (Law). In April 1994, Applicant pled guilty to aggravated assault, a felony. In July 2008, she pled guilty to insurance fraud and conspiracy, two misdemeanors. She applied to the Board for a license on or about September 8, 2008. In its final adjudication and order, the Board denied Applicant’s license application based on these convictions. We affirm.

adequate findings -- While we agree with Applicant that the Board could have issued an opinion with more detailed factual findings regarding her asserted remorsefulness and personal accomplishments, we cannot conclude that the Board’s findings and conclusions are so lacking as to not meet the minimal requirements for an adjudication under Section 507 of the Administrative Agency Law. A review of the adjudication reveals that the Board made very specific findings of fact regarding the convictions and the potentially mitigating circumstances surrounding the convictions, as well as findings regarding Applicant’s professional achievements and work history. A review of the adjudication as a whole reveals that the Board merely gave more weight to the convictions than to the mitigating circumstances and Applicant’s statements of remorse and reform when reaching its determination. Under these circumstances, we must conclude that the adjudication is sufficient to allow effective appellate review under Section 507 of the Administrative Agency Law.

remotness of conviction - Applicant further contends that the Board erred in considering her conviction that occurred fourteen years earlier. Under these circumstances, we reject Applicant’s argument that the Board was per se prohibited from considering Applicant’s earlier conviction. Given the circumstances of this case, in particular the very recent conviction, we cannot conclude that the Board erred in considering the earlier conviction. Moreover, we note that even if the Board had erred in considering the earlier conviction, sufficient evidence exists to support the Board’s denial based solely on the recent insurance fraud and conspiracy conviction.

mitigating evidence - A board may give greater weight to the seriousness of a respondent’s criminal convictions than to mitigating evidence. Burnworth v. State Bd. of Vehicle Mfrs., Dealers and Salespersons, 589 A.2d 294, 297 (Pa. Cmwlth. 1991). Absent bad faith, fraud, capricious action or flagrant abuse of discretion, a reviewing court will not inquire into the wisdom of an administrative agency’s =discretionary action or into the details or manner of executing that action.

credibility determination based on written transcript is permitted - This Court has held that administrative adjudicators may determine credibility from the reading of a transcript.” Pellizzeri, 856 A.2d at 301. Even Daniels, which we do not concede applies, does not require that credibility determinations be made based on “live” testimony. While credibility determinations based on a witness’ demeanor may have been beneficial in this case, the Board did not err when it simply reviewed the record of the proceedings provided to it.

housing - sec. 8 - housing quality standards - no private right of action - municipal liability - state-created danger

McKinney et al. v. Philadelphia Housing Authority - ED Pa. - April 20, 2010

http://www.paed.uscourts.gov/documents/opinions/10D0390P.pdf

No private right of action based on housing quality standard provisions in statute/regulations

The cases indicate an identifiable taxonomy,where certain kinds of statutorylanguage clearly create personal rights and other kinds do not. When the subject of the statutory language is the party for whose benefit the statute is intended, such as in Titles VI and IX (“No person . . . shall be subjected to discrimination”) Congress has shown an “unmistakable focus on the benefited class” and it is clear that the statute confers a personal right. See Cannon, 441 U.S. at 691–93.

When the subject of the statutory language is not the intended beneficiary, but the statutory provision mandates that a regulated entity provide an enumerated right to an enumerated beneficiary, the Third Circuit has concluded that the statute creates personal rights. This is because these cases are “difficult, if not impossible, as a linguistic matter, to distinguish” from cases in which the intended beneficiary of the statute is the subject of the statutory language. See Sabree, 376 F.3d at 190. Examples include the statutory language in Sabree, whichmandated that statemedical assistance plans ensure that medical assistance shall be furnishedwith reasonable promptness to all eligible individuals, and Grammer, which required nursing facilities to protect and promote the rights of each resident, including the right to choose a personal attending physician. See 367 F.3d at 189; 570 F.3d at 529.

However, when the statutory language speaks of a primary subject—the object of the regulation—and a secondary subject, who benefits from the regulation of the primary subject, no personal rights are created. See Newark Parents, 547 F.3d at 210. Such language does not speak of the rights or entitlements of the secondary subject, but only of the obligations of the primary subject. Because the focus of these statutes “is on the entity regulated and is at least one step removed from the interests of” the intended beneficiary, courts will not find personal rights in such cases. See id.

Given this framework, the Court determines that neither of the Housing Act provisions Section 1437f(o)(8) states “[F]or each dwelling unit for which a housing assistance payment contract is established under this subsection, the public housing agency shall inspect the unit before any assistance payment is made to determine whether the dwelling unit meets the housing quality standards under subparagraph (B).” 42 U.S.C. § 1437f(o)(8)(A). Section 1437d(f) states, in relevant part: “(1) Each contract for contributions for a public housing agency shall require that the agency maintain its public housing in a condition that complies with . . . the housing quality standards . . . . (2) The Secretary shall establish housing quality standards . . . that ensure that public housing dwelling units are safe and habitable. . . .” 42 U.S.C. § 1437d(f).

Plaintiffs point to in the present case create personal rights. The statutes Plaintiffs seek to enforce, 42 U.S.C. §§ 1437f(o)(8) and 1437d(f),3 do not even mention the intended beneficiary of the regulation. Since the statutory provisions under which Plaintiffs bring their claims against PHA are not privately enforceable, neither are the regulatory provisions they cite. See Sandoval, 532 U.S. at 291 (“[I]t is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized byCongress.”); Three Rivers, 382 F.3d at 424 (“[A] regulation cannot ‘create a right enforceable through section 1983 where the alleged right does not appear explicitly in the statute, but only appears in the regulation.’” (quoting S. Camden Citizens in Action v. N.J. Dep't of Envtl. Prot., 274 F.3d 771, 781 (3d Cir. 2001))). Therefore, the Court concludes that Plaintiffs do not have a private right of action to enforce 42 U.S.C. §§ 1437f(o)(8), 1437d(f), or their associated regulations under either 42 U.S.C. § 1983 or an implied right of action, because those provisions of law do not create personal rights.

Municipal liability - state-created danger

Defendant's motion for summary judgment rejected on this claim, because, inter alia, "[b]ut for PHA’s approval of the Scattergood property, Plaintiffs would not be living there and never would have been exposed to the alleged dangers therein. Without PHA’s payment of the rent for the Scattergood property, Plaintiffs would not be living in the home and exposed to its damp air. And but for the alleged appointment and notice requirement, Plaintiffs almost certainlywould have been out of the Scattergood property earlier and faced less exposure to the alleged dangers within the home. Thus, on their face, PHA’s acts were but-for causes of Plaintiffs’ harm.

The other requirements of DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189 (1989) were adequately pleaded, to avoid summary judgment. Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996). To establish a claim based on the state-created danger doctrine, a plaintiff must satisfy the following elements: (1) the harm causedwas foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) some relationship existed between the state and the plaintiff that renders plaintiff a foreseeable victim; and (4) “a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.” Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006).

custody - reliance on custom, practice, usage not permitted

B.C.S. v. J.A.S. - Superior Court - April 20, 2010

http://www.pacourts.us/OpPosting/Superior/out/A02043_10.pdf

We hold that a court may not rely on any custom, practice, or judicial norm advancing a presumption of primary physical custody of school-age children when evaluating a petition to modify custody.

Father challenges the court’s reliance on “York County Practice” in deciding against a shared custody arrangement. He refers to the court’s comment that courts “in York County have often provided that primary majority custody situations are best suited for children of school age. There are arrangements that can be made if parents reside in the same district and are able to cooperate.” Because the law unequivocally provides for a fact-specific, case-by-case analysis of all factors affecting the child’s best interest in custody proceedings, any presumption of primary physical custody for school-age children is completely unfounded. See A.D., 989 A.2d at 36. Unless the legislature determines otherwise, the law contains no presumption that primary physical custody situations are best suited for school-aged children. See id.

Indeed, this Court explicitly found the trial court abused its discretion when it awarded primary physical custody based on the “court’s personal view that shared custody is seldom (if ever) in the best interests of school-age child[ren].” See M.A.T. v. G.S.T., 989 A.2d 11, 20 (Pa. Super. 2010) (en banc). We thus re-emphasize the impropriety of any custom, practice, or judicial norm advancing a presumption of primary physical custody of school-age children. See id.; A.D., 989 A.2d at 36

Accordingly, we hold that the trial court’s reliance on “York County Practice” that “primary majority custody situations are best suited for children of school age” in denying Father’s petition to modify custody is contrary to well-established caselaw mandating a fact-specific analysis of the children’s best interest in resolving any petition to modify custody.

__._,_.___

attorney fees - civil rights - lodestar - enhancement

SUPREME COURT OF THE UNITED STATES

Syllabus

PERDUE v. KENNY A.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 08–970. Argued October 14, 2009—Decided April 21, 2010

Title 42 U. S. C. §1988 authorizes courts to award a "reasonable" attorney’s fee for prevailing parties in civil rights actions. Half of respondents’ $14 million fee request was based on their calculation of the"lodestar,"

i.e.,

the number of hours the attorneys and their employees worked multiplied by the hourly rates prevailing in the community. The other half represented a fee enhancement for superior work and results, supported by affidavits claiming that the lodestar wouldbe insufficient to induce lawyers of comparable skill and experienceto litigate this case. Awarding fees of about $10.5 million, the District Court found that the proposed hourly rates were "fair and reasonable," but that some of the entries on counsel’s billing records were vague and that the hours claimed for many categories were excessive. The court therefore cut the lodestar to approximately $6 million, but enhanced that award by 75%, or an additional $4.5 million.The Eleventh Circuit affirmed in reliance on its precedent.

Held:

1. The calculation of an attorney’s fee based on the lodestar may be increased due to superior performance, but only in extraordinary circumstances. Pp. 5–12.

(a) The lodestar approach has "achieved dominance in the federal courts." Gisbrecht v. Barnhart, 535 U. S. 789, 801. Although imperfect, it has several important virtues: It produces an award that approximates the fee the prevailing attorney would have received for representing a paying client who was billed by the hour in a comparable case; and it is readily administrable, see, e.g., Burlington v. Dague, 505 U. S. 557, 566, and "objective," Hensley v. Eckerhart, 461 U. S. 424, 433, thereby cabining trial judges’ discretion, permitting meaningful judicial review, and producing reasonably predictable results. Pp. 5–7.

(b) This Court has established six important rules that lead totoday’s decision. First, a "reasonable" fee is one that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case, see Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U. S. 546, 565, but that does not provide "a form of economic relief to improve the financial lot of attorneys," ibid. Second, there is a "strong" presumption that the lodestar method yields a sufficient fee. See, e.g., id., at 564. Third, the Court has never sustained an enhancement of a lodestar amount for performance, but has repeatedly said that an enhancement maybe awarded in "rare" and "exceptional" circumstances. E.g., id., at 565. Fourth, "the lodestar includes most, if not all, of the relevant factors constituting a ‘reasonable’ attorney’s fee." Id., at 566. An enhancement may not be based on a factor that is subsumed in the lodestar calculation, such as the case’s novelty and complexity, see, e.g., Blum v. Stenson, 465 U. S. 886, 898, or the quality of an attorney’s performance, Delaware Valley, supra, at 566. Fifth, the burden of proving that an enhancement is necessary must be borne by the fee applicant. E.g., Blum, 465 U. S., at 901. Sixth, an applicant seekingan enhancement must produce "specific evidence" supporting the award, id., at 899, 901, to assure that the calculation is objective andcapable of being reviewed on appeal. Pp. 7–9.

(c) The Court rejects any contention that a fee determined by the lodestar method may not be enhanced in any situation. The "strong presumption" that the lodestar is reasonable may be overcome in those rare circumstances in which the lodestar does not adequatelyaccount for a factor that may properly be considered in determining a reasonable fee. P. 9.

(d) The Court treats the quality of an attorney’s performance andthe results obtained as one factor, since superior results are relevantonly to the extent it can be shown that they stem from superior attorney performance and not another factor, such as inferior performance by opposing counsel. The circumstances in which superior attorney performance is not adequately taken into account in the lodestar calculation are "rare" and "exceptional." Enhancements should not be awarded without specific evidence that the lodestar feewould not have been "adequate to attract competent counsel." Blum, supra, at 897. First, an enhancement may be appropriate where the method used to determine the hourly rate does not adequately measure the attorney’s true market value, as demonstrated in part during the litigation. This may occur if the hourly rate formula takes into account only a single factor (such as years since admission to the bar) or perhaps only a few similar factors. In such a case, the trial judge should adjust the hourly rate in accordance with specific proof linking the attorney’s ability to a prevailing market rate. Second, an enhancement may be appropriate if the attorney’s performance includesan extraordinary outlay of expenses and the litigation is exceptionally protracted. In such cases, the enhancement amount must be calculated using a method that is reasonable, objective, and capable ofbeing reviewed on appeal, such as by applying a standard interestrate to the qualifying expense outlays. Third, an enhancement may be appropriate where an attorney’s performance involves exceptional delay in the payment of fees. In such a case, the enhancement should be calculated by a method similar to that used for an exceptional delay in expense reimbursement. Enhancements are not appropriate on the ground that departures from hourly billing are becoming more common. Nor can they be based on a flawed analogy to the increasingly popular practice of paying attorneys a reduced hourly rate witha bonus for obtaining specified results. Pp. 9–12.

2. The District Court did not provide proper justification for the 75% fee enhancement it awarded in this case.

It commented that the enhancement was necessary to compensate counsel at the appropriate hourly rate, but the effect was to raise the top rate from $495 tomore than $866 per hour, while nothing in the record shows that this is an appropriate figure for the relevant market. The court also emphasized that counsel had to make extraordinary outlays for expenses and wait for reimbursement, but did not calculate the amountof the enhancement attributable to this factor. Similarly, the court noted that counsel did not receive fees on an ongoing basis during the case, but did not sufficiently link this to proof that the delay was outside the normal range expected by attorneys who rely on §1988 forfees. Nor did the court calculate the cost to counsel of any extraordinary and unwarranted delay. And its reliance on the contingency of the outcome contravenes Dague, supra, at 565. Finally, insofar as the court relied on a comparison of counsel’s performance in this case with that of counsel in unnamed prior cases, it did not employ a methodology that permitted meaningful appellate review. While determining a "reasonable attorney’s fee" is within the trial judge’s sound discretion under §1988, that discretion is not unlimited. The judge must provide a reasonably specific explanation for all aspects of a fee determination, including any enhancement. Pp. 12–15.

532 F. 3d 1209, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., and THO-MAS, J., filed concurring opinions. BREYER, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, GINSBURG, and SOTOMAYOR, JJ., joined.

FDCPA - bona fide error defense - mistaken interpretation of law

Jermyn v. Carlisle, McNellie, et al. - US Supreme Court - April 21, 2010

http://www.supremecourt.gov/opinions/09pdf/08-1200.pdf

The Fair Debt Collection Practices Act (FDCPA), 15 U. S. C. §1692 et seq., imposes civil liability on "debt collector[s]" for certain prohibiteddebt collection practices. A debt collector who "fails to comply withany [FDCPA] provision . . . with respect to any person is liable tosuch person" for "actual damage[s]," costs, "a reasonable attorney’sfee as determined by the court," and statutory "additional damages." §1692k(a). In addition, violations of the FDCPA are deemed unfair or deceptive acts or practices under the Federal Trade Commission Act(FTC Act), §41 et seq., which is enforced by the Federal Trade Commission (FTC). See §1692l. A debt collector who acts with "actual knowledge or knowledge fairly implied on the basis of objective circumstances that such act is [prohibited under the FDCPA]" is subjectto civil penalties enforced by the FTC. §§45(m)(1)(A), (C). A debt collector is not liable in any action brought under the FDCPA, however, if it "shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." §1692k(c). Respondents, a law firm and one of its attorneys (collectively Carlisle), filed a lawsuit in Ohio state court on behalf of a mortgage company to foreclose a mortgage on real property owned by petitionerJerman. The complaint included a notice that the mortgage debt would be assumed valid unless Jerman disputed it in writing. Jerman’s lawyer sent a letter disputing the debt, and, when the mortgage company acknowledged that the debt had in fact been paid, Carlisle withdrew the suit. Jerman then filed this action, contending that by sending the notice requiring her to dispute the debt in writing, Carlisle had violated §1692g(a) of the FDCPA, which governs the contents of notices to debtors. The District Court, acknowledging adivision of authority on the question, held that Carlisle had violated§1692g(a) but ultimately granted Carlisle summary judgment under §1692k(c)’s "bona fide error" defense. The Sixth Circuit affirmed, holding that the defense in §1692k(c) is not limited to clerical or factual errors, but extends to mistakes of law.

Held: The bona fide error defense in §1692k(c) does not apply to a violation resulting from a debt collector’s mistaken interpretation of the legal requirements of the FDCPA. Pp. 6–30.

(a) A violation resulting from a debt collector’s misinterpretation ofthe legal requirements of the FDCPA cannot be "not intentional" under §1692k(c). It is a common maxim that "ignorance of the law willnot excuse any person, either civilly or criminally." Barlow v. United States, 7 Pet. 404, 411. When Congress has intended to provide amistake-of-law defense to civil liability, it has often done so more explicitly than here. In particular, the administrative-penalty provisions of the FTC Act, which are expressly incorporated into theFDCPA, apply only when a debt collector acts with "actual knowledgeor knowledge fairly implied on the basis of objective circumstances" that the FDCPA prohibited its action. §§45(m)(1)(A), (C). Given the absence of similar language in §1692k(c), it is fair to infer that Congress permitted injured consumers to recover damages for "intentional" conduct, including violations resulting from a mistaken interpretation of the FDCPA, while reserving the more onerous administrative penalties for debt collectors whose intentional actionsreflected knowledge that the conduct was prohibited. Congress alsodid not confine FDCPA liability to "willful" violations, a term more often understood in the civil context to exclude mistakes of law. See, e.g., Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 125–126. Section 1692k(c)’s requirement that a debt collector maintain "procedures reasonably adapted to avoid any such error" also more naturally evokes procedures to avoid mistakes like clerical or factual errors. Pp. 6–12.

(b) Additional support for this reading is found in the statute’s context and history. The FDCPA’s separate protection from liability for "any act done or omitted in good faith in conformity with any [FTC] advisory opinion," §1692k(e), is more obviously tailored to the concern at issue (excusing civil liability when the FDCPA’s prohibitionsare uncertain) than the bona fide error defense. Moreover, in enacting the FDCPA in 1977, Congress copied the pertinent portions of the bona fide error defense from the Truth in Lending Act (TILA), §1640(c). At that time, the three Federal Courts of Appeals to haveconsidered the question interpreted the TILA provision as referring to clerical errors, and there is no reason to suppose Congress disagreed with those interpretations when it incorporated TILA’s language into the FDCPA. Although in 1980 Congress amended the defense in TILA, but not in the FDCPA, to exclude errors of legal judgment, it is not obvious that amendment changed the scope of the TILA defense in a way material here, given the prior uniform judicialinterpretation of that provision. It is also unclear why Congress would have intended the FDCPA’s defense to be broader than TILA’s, and Congress has not expressly included mistakes of law in any of the parallel bona fide error defenses elsewhere in the U. S. Code.Carlisle’s reading is not supported by Heintz v. Jenkins, 514 U. S. 291, 292, which had no occasion to address the overall scope of theFDCPA bona fide error defense, and which did not depend on the premise that a misinterpretation of the requirements of the FDCPA would fall under that provision. Pp. 13–22.

(c) Today’s decision does not place unmanageable burdens on debtcollecting lawyers. The FDCPA contains several provisions expressly guarding against abusive lawsuits, and gives courts discretion in calculating additional damages and attorney’s fees. Lawyers have recourse to the bona fide error defense in §1692k(c) when a violationresults from a qualifying factual error. To the extent the FDCPA imposes some constraints on a lawyer’s advocacy on behalf of a client, itis not unique; lawyers have a duty, for instance, to comply with thelaw and standards of professional conduct. Numerous state consumer protection and debt collection statutes contain bona fide error defenses that are either silent as to, or expressly exclude, legal errors. To the extent lawyers face liability for mistaken interpretationsof the FDCPA, Carlisle and its amici have not shown that "the result [will be] so absurd as to warrant" disregarding the weight of textualauthority. Heintz, supra, at 295. Absent such a showing, argumentsthat the FDCPA strikes an undesirable balance in assigning the risks of legal misinterpretation are properly addressed to Congress. Pp. 22–30.

538 F. 3d 469, reversed and remanded.

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

UC - willful misconduct - threat to harm co-worker

Ball v. UCBR - Cmwlth. Court - April 21, 2010 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1911CD09_4-21-10.pdf

“[T]hreats of harm toward a supervisor or a coworker constitute conduct below the standards of behavior which an employer has a right to expect from an employee.” Sheets v. UCBR, 708 A.2d 884, 885 (Pa. Cmwlth. 1998). Moreover, a willful misconduct determination may be based on an employee’s verbal threat of harm even if no physical altercation ensues. See, e.g., Rodites v. UCBR, 382 A.2d 1287, 1287-88 (Pa. Cmwlth. 1978) (finding willful misconduct where employee, during heated exchange with councilman, “offered to take the councilman outside”); Wilson v. UCBR, 325 A.2d 500, 501 (Pa. Cmwlth. 1974) (finding willful misconduct where employee told co-worker that his manager “should get off [his] back or [he] would ship him out of there in a plastic bag” and weapons were later discovered in employee’s car); Zondler v. UCBR, 175 A.2d 149, 149-50 (Pa. Super. 1961) (finding willful misconduct where employee held pencil close to co-worker’s face and made stabbing motions, frightening co-worker).5

5 But see Blount v. UCBR, 466 A.2d 771 (Pa. Cmwlth. 1983) (concluding employee’s remark about bomb threat did not rise to level of willful misconduct where remark was made off-handedly and there was no indication he was capable of carrying out such threat).

appeal - timeliness - collateral errors

Brown v. Levy - Commonwealth Court - April 21, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2221CD09_4-21-10.pdf


It was error for the prothonotary to refuse to accept a timely appeal because of collateral errors, including the failure to attach the case’s docket entries, provide the requisite number of copies, and provide a certificate of service indicating service upon the trial judge.


The court held that the prothonotary erred by not accepting the notice of appeal, applying the standard in Pennsylvania Rule of Appellate Procedure 902, which provides:

An appeal permitted by law as of right from a lower court to an appellate court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 903 (time for appeal). Failure of an appellant to take any step other than the timely filing of a notice of an appeal does not affect the validity of the appeal, but it is subject to such action as the appellate court deems appropriate, which may include, but is not limited to, remand of the matter to the lower court so that the omitted procedural step may be taken. (Emphasis added.)

In Lowrey v. East Pikeland Township, 562 A.2d 1010 (Pa. Cmwlth. 1989), the court held that a prothonotary who refused to time-stamp a timely filed appeal that omitted the case number committed an abuse of discretion and violated Rule 902 because the failure to include the case number did not affect the validity of the appeal. Likewise, in Department of Transportation v. Florek, 455 A.2d 1263 (Pa. Cmwlth. 1983), it held that a notice of appeal with various unnamed defects that was timely filed did not affect the validity of the appeal.

Here, it is undisputed that Petitioner timely filed a notice of appeal. As timeliness is the only requirement to make a notice of appeal valid, Petitioner’s first attempt to file a notice of appeal was indeed a valid notice of appeal, and the Prothonotary committed an abuse of discretion by sending the notice of appeal back to Petitioner rather than accepting it. It was, therefore, unnecessary for Petitioner to file a petition for leave to appeal nunc pro tunc because his appeal was indeed timely.

misrepresentation - tort v. contract - gist of the action doctrine

Pediatrix Screening, Inc. v. Telechem Internation, Inc. - 3d Cir. - April 20, 2010

http://www.ca3.uscourts.gov/opinarch/081391p.pdf


The Pennsylvania Superior Court has “operated under the assumption that the gist of the action doctrine is a viable doctrine that will eventually be explicitly adopted by [the] state’s High Court.” Reardon v. Allegheny Coll., 926 A.2d 477, 486 (Pa. Super. Ct. 2007). The 3d Circuit has embraced that view as well. Bohler-Uddeholm, 247 F.3d at 103-04.


The gist of the action “doctrine is designed to maintain the conceptual distinction between breach of contract claims and tort claims. As a practical matter, the doctrine precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” eToll, Inc. v. Elias/Savon Adver., Inc., 811 A.2d 10, 14 (Pa. Super. Ct. 2002) (citation omitted). In some circumstances, “it is possible that a breach of contract also gives rise to an actionable tort[.] To be construed as in tort, however, the wrong ascribed to defendant must be the gist of the action, the contract being collateral.” Id. (alteration in original) (quoting Bash v. Bell Tel. Co., 601 A.2d 825, 829 (Pa. Super. Ct. 1992)). That the misconduct was fraudulent does not bar application of the gist of the action principle. Werwinski v. Ford Motor Co., 286 F.3d 661, 681 (3d Cir. 2002).


The Superior Court has held that fraud claims should be barred where they arose during the course of the parties’ contractual relationship; where the allegedly fraudulent acts also were breaches of duties “created and grounded in the . . . contract[;]” and where the damages “would be compensable in an ordinary contract action[ and] thus, the claim would essentially duplicate a breach of contract action.” eToll, Inc., 811 A.2d at 20-21. Where fraud claims are “inextricably intertwined” with the contract claims, the gist of the action is contractual, and the fraud claim should be dismissed. Id. at 21.


The test has been discussed in other cases as well, including Hart v. Arnold, 884 A.2d 316, 341 (Pa. Super. Ct. 2005) (dismissing fraud-in-the-performance claim because it “essentially duplicate[d] . . . breach of contract claim and [its] success . . . [wa]s wholly dependent on the terms of a contract”), and Pittsburgh Construction Co. v. Griffith, 834 A.2d 572, 584 (Pa. Super. Ct. 2003) (vacating award for conversion on gist of the action grounds where “tort and breach of contract claims [were] inextricably intertwined, the success of the conversion claim depending entirely on the obligations as defined by the contract”). Compare Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 719 (Pa. Super. Ct. 2005) (separate fraud claim not barred when defendant “fraudulently . . . agreed to perform obligations that it never intended to perform in order to induce” plaintiff into entering into contract).

UC - voluntary quit - religious beliefs

Calhoun Jewelers LLC v. UCBR - April 20, 2010 - unpublished memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/2081CD09_4-20-10.pdf


The court reversed the grant of benefits to a claimant, who quit her job because of a conflict with her beliefs as a Jehovah's Witness, because she did not explain how the employer's instructions--to prepare a template for birthday cards to be sent to the employer's clients--violated her religious beliefs.


In Monroe v. UCBR, 535 A.2d 1222 (Pa. Cmwlth. 1988), this Court addressed the framework for a determination as to whether sincerely held religious beliefs conflict with job duties: The First Amendment right to the free exercise of religion applies to a sincerely held religious belief, and we do not believe that this right is limited only to beliefs held by members of established religions. . . . Accordingly, an actual conflict between one’s sincerely held religious beliefs and his or her employment conditions may constitute cause of a necessitous and compelling nature for voluntarily terminating employment. . . . .If it is determined that beliefs are sincerely held, then it must also be established that those beliefs are religious in nature. . . . . Monroe, 535 A.2d at 1224-1225.


Here, it is undisputed that Claimant was a Jehovah’s Witness. Claimant explained at the hearing before the referee that she believed that “many of the origins of birthdays are linked with false worship, even such things as birthday greetings, as happy birthday are linked with false worship of gods.” A church elder testified regarding the tenets of this religion concerning birthdays. There was no error in the determination that Claimant was a Jehovah’s Witness and, as a Jehovah’s Witness, she had sincerely held beliefs concerning the celebration of birthdays.


However, claimant did not establish that those sincerely held religious beliefs were in conflict with her employment conditions. It is Claimant’s burden to demonstrate that she had a necessitous and compelling reason for quitting her employment based on her sincerely held religious beliefs. Claimant established that she had sincerely held religious beliefs. However, the Board erred when it determined that the writing of a “personal message” on a birthday card violated Claimant’s religious beliefs when Claimant failed to describe the “personal message.” Claimant had the opportunity to articulate what the message was that she was instructed to write and to establish how that violated her religion, but she failed to do so.