UC- appeal - Board reversal of referee overturned - Treon, et al

Dommes v. UCBR - May 24, 2011 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1590CD10_5-24-11.pdf

Claimant quit his job because of work-related stress and anxiety caused by harrassment by fellow employees. Claimant presented letters from a psychologist and a physician at the referee hearing documenting his claims. The letter from a licensed psychologist recommended that Claimant not return to work for Employer, stating that, if he did, it “would be done at the jeopardy of his mental and physical health.” The letter Claimant’s physician also recommended that Claimant “cease work under the current conditions in order to aid in his medical and psychological care."

Based on this evidence, the referee found that:

(1) “[C]laimant became upset and began manifesting physical signs of stress and anxiety, such as nausea and sweating, and consulted with his physician,”; (2) “[C]aimant’s physician advised the claimant to quit his employment with [Employer],” and (3) “[n]o other alternatives were available to [Claimant] prior to quitting,” The referee stated as follows: Based upon the testimony provided and the competent evidence contained in the record, the referee finds and concludes that the claimant had good cause for quitting due to the stress and anxiety which was manifesting itself through nausea and sweating. Additionally, the referee resolves issues of credibility in favor of the claimant.

Employer appealed to the UCBR, which reversed. In doing so, the UCBR “discredit[ed] [Claimant’s] testimony, as well as the opinion of his doctor, that [Claimant] was compelled to quit his employment due to health issues.” The UCBR gave no reason for its disregard of the referee’s contrary finding.

Claimant argues that the UCBR erred in disregarding the referee’s finding that Claimant needed to end his employment for health reasons without stating its reasons for doing so. We agree.

Although the weight to be given the evidence and the credibility to be afforded the witnesses are within the province of the UCBR as the fact-finder, the UCBR is not free to ignore the overwhelming evidence in favor of a contrary result not supported by the evidence. Borello v. UCBR, 490 Pa. 607, 618-19, 417 A.2d 205, 211 (1980). “The [UCBR] may not . . .simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its reasons for doing so.” Treon v. UCBR, 499 Pa. 455, 461, 453 A.2d 960, 962 (1982). Where the UCBR does so, the remedy is to reinstate the finding of the referee. Id. at 461, 453 A.2d at 962-63. Here, the UCBR disregarded the referee’s finding that Claimant needed to quit his job with Employer for health reasons. The finding is supported by consistent and competent evidence, uncontradicted in the record, and the UCBR offered no reason for its disregard of that finding. Thus, under Treon, the referee’s finding is reinstated.

Claimant next argues that the UCBR erred in concluding that he lacked a necessitous and compelling reason to quit. We agree. Health problems may amount to a compelling reason to quit when the claimant offers competent testimony that adequate health reasons existed to justify the voluntary termination, that the claimant informed the employer of the health problems, and that the claimant remained available to work if employer made reasonable accommodations. Genetin v. UCBR, 499 Pa. 125, 130-131, 451 A.2d 1353, 1356 (1982). Once the employee communicates his health problems to the employer, he can do no more. Id. at 131, 451 A.2d at 1356. The employer is responsible for contacting the employee and offering him suitable work; to insist that the employee initiate a quest for an alternative position would require a meaningless ritual. Id. If the employee declines such work, the employee will be ineligible for benefits. Id. at 132, 451 A.2d at 1356. Here, Claimant offered competent evidence that he was suffering from health problems as a result of the verbal abuse he suffered at work. Claimant informed Employer about the verbal abuse and its effect on his health in the fourpage complaint he gave to Employer two weeks before Claimant quit. Employer never addressed the complaint, never contacted Claimant regarding an investigation and never offered Claimant suitable employment.

Accordingly, we reverse that portion of the UCBR’s order denying benefits.

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The claimant's counsel is a private attorney from Scranton, Chris Cullen, who has filed a motion to publish, along with that of David Hill of PLA. Atty. Cullen notes that the Board is asking the Supreme Court to review and reverse.

This opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

foreclosure - HSBC affidavits "inherently untrusworthy" - business-record exception not established

HSBC v. Murphy - Maine Supreme Judicial Court - May 19, 2011

http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me59mu.pdf

Because we determine that the affidavits submitted by HSBC are inherently untrustworthy and, therefore, do not establish the foundation for admission of the attached documents as business records pursuant to M.R. Evid. 803(6), we vacate the judgment without reaching the substantive issues raised.

HSBC’s statement of material facts was supported by record references to an affidavit of John Gonzalez, who was identified in the affidavit as a Foreclosure Manager at HSBC. In its statement of material facts, HSBC asserted that it was the “holder of the Note and Mortgage” by virtue of the assignment from MERS and through “endorsement and delivery of the aforesaid Note from Calusa.” However, there was no endorsement on the face of, or appended to, the copy of the note attached to the Gonzalez affidavit or the complaint.

In residential mortgage foreclosure actions, certain minimum facts must be included in a mortgage holder’s statement of material facts on summary judgment.. . . We have repeatedly emphasized “the importance of applying summary judgment rules strictly in the context of residential mortgage foreclosures.” . . . We have also repeatedly emphasized that a party’s assertion of material facts must be supported by record references to evidence that is of a quality that would be admissible at trial. . . . This qualitative requirement is particularly important in connection with mortgage foreclosures where the affidavits submitted in support of summary judgment are commonly signed by individuals who claim to be custodians of the lender’s business records. Thus, the information supplied by the affidavits is largely derivative because it is drawn from a business’s records, and not from the affiant’s personal observation of events.

It is, perhaps, stating the obvious that an affidavit of a custodian of business records must demonstrate that the affiant meets the requirements of M.R. Evid. 803(6)7 governing the admission of records of regularly conducted business. A business’s records kept in the course of its regularly conducted business may be admissible notwithstanding the hearsay rule if the necessary foundation is established “by the testimony of the custodian or other qualified witness.” M.R. Evid. 803(6). “A qualified witness is one who was intimately involved in the daily operation of the [business] and whose testimony showed the firsthand nature of his knowledge.”. . . The foundation that the custodian or qualified witness must establish is four-fold:

(1) the record was made at or near the time of the events reflected in the record by, or from information transmitted by, a person with personal knowledge of the events recorded therein;

(2) the record was kept in the course of a regularly conducted business;

(3) it was the regular practice of the business to make records of the type involved; and

(4) no lack of trustworthiness is indicated from the source of information from which the record was made or the method or circumstances under which the record was prepared.

In this case, the affidavits submitted by HSBC contain serious irregularities that make them inherently untrustworthy [noting discrepancies in dates, etc.]. . . .Because the information contained in the affidavits, and the business records attached to them, are not of a quality that would be admissible at trial, the court erred by granting a summary judgment.

forum selection clause

NJ Dept. of Treasure v. Merrill Lynch - 3d Cir. - May 18, 2011

http://www.ca3.uscourts.gov/opinarch/094676p.pdf

The court held that a forum selection clause that provides: "exclusive jurisdiction . . . shall lie in the appropriate courts of the State [of] New Jersey" should be interpreted to be a waiver of the right to remove the litigation to the federal district courts in New Jersey, rejecting defendant's argument that the clause contemplates jurisdiction in either the state or the federal courts located in New Jersey.

The court noted that

- the "parties in this case, sophisticated organizations both, were represented by counsel during the negotiation and adoption of the forum selection clause at issue." While contra proferentem may be the general rule, "[a]pplication of the rule may be . . . limited by the degree of sophistication of the contracting parties or the degree to which the contract was negotiated." The doctrine of construing a document against the interests of the party who drafte dit is "inapplicable where parties, both sophisticated entities, had equal bargaining power in drafting agreement."

- every Court of Appeals confronted with a similar forum selection clause "ha[d] ruled that the reference to courts of the state . . . limits jurisdiction to state rather than federal tribunals." The "vast majority of our sister circuits have held that forum selection clauses like the one at issue here required remand to the state court."

- a defendant can contractually waive his right to remove . . . an action brought . . . in a state court. Such waivers are usually upheld if they are reasonable and voluntary and if their enforcement is not inconsistent with public policy. A forum selection clause is unreasonable where party makes "strong showing" that inconvenience of designated forum will effectively deprive him of day in court or that clause resulted from fraud or duress.

Pennsylvania Supreme Court - internal operating procedures

Posted Today! In Re: Amendment of Internal Operating Procedures of the Supreme Court; No. 365 JAD
Opinion By: per curiam
Posted By: W.D. Prothonotary
	Date Rendered: 5/18/2011
	Date Posted: 5/19/2011
	Opinion Type: Rules	365jad.pdf
	Date Rendered: 5/18/2011
	Date Posted: 5/19/2011
	Opinion Type: Rules	365jad.attach.pdf

consumer - atty. fees - reasonable rate - CLS survey v. Laffey

Williams v. NCO Financial Systems - ED Pa - May 10, 2011

http://www.paed.uscourts.gov/documents/opinions/11D0518P.pdf

contracts - tortious interference - truthful statements not actionable

Walnut Street Associates v. Brokerage Concept, Inc. - Pa. Supreme Court - May 13, 2011

http://www.pacourts.us/OpPosting/Supreme/out/J-57-2010mo.pdf

Restatement (Second) of Torts § 772(a) applies in Pennsylvania to preclude an action for tortious interference with contractual relations where it is undisputed that the defendant's interfering statements were truthful.FN1

FN1.
One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other's contractual relation, by giving the third person
(a) truthful information, or
(b) honest advice within the scope of a request for the advice.
Restatement (Second) of Torts § 772 (1979)

UC - unrepresented claimant - duty of referee to develop record

Bellone v. UCBR - May 11l. 2011, - Cmwlth. Court

http://www.pacourts.us/OpPosting/Cwealth/out/1959CD10_5-11-11.pdf

The Department of Labor’s regulation describes how a hearing must be conducted:

(a) In any hearing the tribunal may examine the parties and their witnesses. Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties.

34 Pa. Code §101.21(a).

This Court has stated:

The referee has a responsibility, therefore, to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed to ‘insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits.’ … The referee, of course, need not advise a party on evidentiary questions or on specific points of law but must act reasonably in assisting in the development of the necessary facts, and any failure to develop an adequate record must be prejudicial to the claimant and not mere harmless error or else a reversal will not be found. Bennet v. UCBR, 445 A.2d 258, 259-260 (Pa. Cmwlth. 1982) (emphasis, citation and footnote deleted). (quoting Robinson v. UCBR, 431 A.2d 378, 380 (Pa. Cmwlth. 1981)).

_____________________________________

This case is also summarized at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable.

Citing unreported and single-judge Commonwealth Court decisions - 210 Pa. Code § 67.55 (January 1, 2011) http://www.pacode.com/secure/data/210/chapter67/chap67toc.html#67.55 Parties may cite an unreported panel decision of the Commonwealth Court issued after January 15, 2008 for its persuasive value, but not as binding precedent.

welfare - reimbursement - delayed wages

Kerr v. DPW - Cmwlth. Court - May 3, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/2447CD10_5-3-11.pdf

DPW paid a "diversion benefit" to a state employee to compensate him for delayed payment of wages during a state budget impasse. The employee signed a reimbursement agreement. Employee was later fully reimbursed for his work during the period.

The court held that the "diversion benefit" came under 55 Pa. Code §257.24(e)(3) dealing with reimbursement for assistance received for delayed wages. The regulations says:

Delayed wages. Reimbursement is required of assistance granted, pending the receipt of wages not paid on the
normal payday. Wages received when normally due are considered as income to be adjusted to the grant under
Chapter 183 (relating to income). The form for acknowledging reimbursement from delayed wages is Form PA 176-K

(Agreement and Authorization to Pay Claim) as set forth in subsection (f).

Section 257.24(e)(3) shows that to establish a valid reimbursement claim against Petitioner, the Commonwealth only needed to prove that: (1) Petitioner was granted public assistance; (2) the assistance was granted pending the receipt of delayed wages; and (3) Petitioner’s household signed the Claim form. The Department met its burden by showing that Petitioner received the $1,767 temporary assistance, that he received this assistance because his wages had been delayed due to the budget impasse, and that Petitioner’s fiancée signed the Claim form.

The court also rejected the claim that the Diversion Program was not part of TANF and thus not subject to TANF reimbursement rules.

11th Amendment - immunity - acceptance of state money

http://www.supremecourt.gov/opinions/10pdf/08-1438.pdf

SUPREME COURT OF THE UNITED STATES

SOSSAMON v. TEXAS ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 08–1438. Argued November 2, 2010—Decided April 20, 2011

After this Court held that the Religious Freedom Restoration Act of1993 was unconstitutional as applied to state and local governmentsbecause it exceeded Congress’ power under §5 of the Fourteenth Amendment, see City of Boerne v. Flores, 521 U. S. 507, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) pursuant to its Spending Clause and Commerce Clause authority.

RLUIPA targets two areas of state and local action: land–use regulation, RLUIPA §2, 42 U. S. C. §2000cc, and restrictions on the religious exercise of institutionalized persons, RLUIPA §3, §2000cc–1. It also provides an express private cause of action for “appropriate relief against a government,” §2000cc–2(a),including, inter alia, States, their instrumentalities and officers, and persons acting under color of state law, §2000cc–5(4)(A). Petitioner Sossamon, a Texas prison inmate, sued respondents, theState and prison officials, seeking injunctive and monetary relief un-der RLUIPA for prison policies that prevented inmates from attend-ing religious services while on cell restriction for disciplinary infractions and that barred use of the prison chapel for religious worship.Granting respondents summary judgment, the District Court held that sovereign immunity barred Sossamon’s claims for monetary re-lief.

The Fifth Circuit affirmed, holding that the statutory phrase “appropriate relief against a government” did not unambiguously notify Texas that its acceptance of federal funds was conditioned on a waiver of sovereign immunity to claims for monetary relief.

Held: States, in accepting federal funding under the Religious Land Use and Institutionalized Persons Act of 2000 do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA. Pp. 4–14.


(a) Sovereign immunity principles enforce an important constitutional limitation on the power of the federal courts. See Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 98. This Court has consistently made clear that “federal jurisdiction over suits against unconsenting States ‘was not contemplated by the Constitu-tion when establishing the judicial power of the United States.’ ” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54. A State, however, may choose to waive its immunity. Clark v. Barnard, 108 U. S. 436, 447–448. The “ ‘test for determining whether [it has done so] is a stringent one.’ ” College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 675. The State’s consent to suit must be “unequivocally expressed” in the relevant statute’s text. Pennhurst, supra, at 99. A waiver “will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Peña, 518 U. S. 187, 192. Pp. 4–6.

(b) RLUIPA’s authorization of “appropriate relief against a government,” is not an unequivocal expression of state consent. Pp. 6–10.

(1) “Appropriate relief” is open-ended and ambiguous about the relief it includes. “Appropriate” is inherently context-dependent.And the context here—where the defendant is a sovereign—suggests, if anything, that monetary damages are not “suitable” or “proper.” See Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U.S. 743, 765. Further, where a statute is susceptible of multipleplausible interpretations, including one preserving immunity, this Court will not consider a State to have waived its sovereign immu-nity. Sossamon’s and Texas’ conflicting plausible arguments aboutwhether immunity is preserved here demonstrate that “appropriaterelief” in RLUIPA is not so free from ambiguity that the Court mayconclude that the States, by receiving federal funds, have unequivocally expressed intent to waive their immunity. Pp. 6–9.

(2) The Court’s use of the phrase “appropriate relief” in Franklin v. Gwinnett County Public Schools, 503 U. S. 60, and Barnes v. Gorman, 536 U. S. 181, does not compel a contrary conclusion. In those cases, where there was no express congressional intent to limit reme-dies available against municipal entities under an implied right ofaction, the Court presumed that compensatory damages were avail-able. Franklin, supra, at 73. But that presumption is irrelevant toconstruing the scope of an express waiver of sovereign immunity,where the question is not whether Congress has given clear directionthat it intends to exclude a damages remedy, but whether it hasgiven clear direction that it intends to include a damages remedy. Pp. 9–10.

(c) Sossamon mistakenly contends that Congress’ enactment of RLUIPA §3 pursuant to the Spending Clause put the States on notice that they would be liable for damages because Spending Clause legislation operates as a contract and damages are always available for abreach of contract. While acknowledging the contract-law analogy,this Court has been clear “not [to] imply . . . that suits under Spending Clause legislation are suits in contract, or that contract-law principles apply to all issues that they raise,” Barnes, supra, at 188, n. 2, or to rely on that analogy to expand liability beyond what would exist under nonspending statutes, much less to extend monetary liability against the States. Applying ordinary contract principles here wouldalso make little sense because contracts with a sovereign are unique: They do not traditionally confer a right of action for damages to enforce compliance. More fundamentally, Sossamon’s implied-contract remedy cannot be squared with the rule that a sovereign immunity waiver must be expressly and unequivocally stated in the relevant statute’s text. Pp. 10–12.

(d) Sossamon also errs in arguing that Texas was put on notice that it could be sued for damages under RLUIPA by §1003 of the Rehabilitation Act Amendments of 1986, which expressly waives state sovereign immunity for violations of “section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance,” 42 U. S. C. §2000d–7. Even if such a residual clause could constitute an unequivocal textual waiver, RLUIPA §3—which prohibits “substantial burden[s]” on reli-gious exercise—is not unequivocally a “statute prohibiting discrimination” within §1003’s meaning. All the statutory provisions enumerated in §1003 explicitly prohibit discrimination; a State might reasonably conclude that the residual clause, strictly construed, covers only provisions using the term “discrimination.” Pp. 12–14.

560 F. 3d 316, affirmed.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, GINSBURG, and ALITO, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which BREYER, J., joined. KAGAN, J., took no part in the consideration or decision of the case.

Eleventh Amendment - Ex parte Young, etc.

VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY v. STEWART, COMMISSIONER,

http://www.supremecourt.gov/opinions/10pdf/09-529.pdf

SUPREME COURT OF THE UNITED STATES

Syllabus

Argued December 1, 2010—Decided April 19, 2011

Together, the Developmental Disabilities Assistance and Bill of RightsAct of 2000 (DD Act) and the Protection and Advocacy for Individualswith Mental Illness Act (PAIMI Act) offer States federal money toimprove, inter alia, medical care for persons with developmental dis-abilities or mental illness. As a condition of funding, a State must establish a protection and advocacy (P&A) system “to protect and advocate [those individuals’] rights.” 42 U. S. C. §15043(a)(1).


A participating State may appoint either a state agency or a private nonprofit entity as its P&A system, but if a state agency it must have authority to litigate and freedom from the control of other state agen-cies or officers. Virginia has appointed an independent state agency, petitioner Virginia Office for Protection and Advocacy (VOPA), authorizing it to litigate to secure disabled individuals’ rights, free of executive-branch oversight; to operate independently of Virginia’s at-torney general; and to employ its own lawyers to sue on its behalf.


While investigating patient deaths and injuries at state mentalhospitals, VOPA asked respondents—state officials in charge of thosehospitals—to produce relevant patient records. Respondents refused,asserting that a state-law privilege shielded the records from disclo-sure. VOPA then filed suit in Federal District Court, seeking a declaration that respondents’ refusal to produce the records violated the DD and PAIMI Acts and an injunction requiring respondents to produce the records and refrain in the future from interfering with VOPA’s right of access. Respondents moved to dismiss on the ground that they are immune from suit under the Eleventh Amendment, but the court held that the suit was permitted by the doctrine of Ex parte Young, 209 U. S. 123, which normally allows federal courts to award prospective relief against state officials for violations of federal law. The Fourth Circuit reversed, finding that Ex parte Young did not apply because the suit was brought by a state agency.

Held: Ex parte Young allows a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same State. Pp. 4–13.

(a) Absent a waiver of sovereign immunity by a State itself or avalid abrogation by Congress, federal courts may not entertain a pri-vate person’s suit against a State. Pp. 4–5.


(b) The doctrine of Ex parte Young, which establishes an importantlimitation on the sovereign-immunity principle, is accepted as necessary to “permit the federal courts to vindicate federal rights.” Pennhurst State School and Hospital v. Halderman, 465 U. S. 89. It rests on the premise that when a federal court commands a state official todo nothing more than refrain from violating federal law, he is not theState for sovereign-immunity purposes. It does not apply “when ‘the state is the . . . party in interest.’ ” Id., at 101. Pp. 5–6.


(c) Entertaining VOPA’s action is consistent with precedent and does not offend the distinctive interests protected by sovereign im-munity. Pp. 6–13.

(1) Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635, held that, in determining the Ex parte Young doctrine’s applica-bility, “a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’ ” Id., at 645. VOPA’s suit satisfies that inquiry. Respondents concede that the ac-tion would be proper were VOPA a private organization rather than a state agency. The “general criterion for determining when a suit is in fact against the sovereign is the effect of the relief sought,” Pennhurst, supra, at 107, not who is bringing the lawsuit. This Court ap-plied that criterion in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, which held that an Indian Tribe could not invoke Ex parte Youngto bring what was essentially a quiet title suit that would “extinguish[Idaho’s] control over . . . lands and waters long deemed . . . an integral part of its territory.” Id., at 282. Respondents have advanced noargument that the relief sought here threatens a similar invasion of Virginia’s sovereignty. Pp. 7–9.

(2) Respondents claim that a State’s dignity is diminished when a federal court adjudicates a dispute between its components. But a State’s stature is not diminished to any greater degree when its ownagency sues to enforce its officers’ compliance with federal law than when a private person does so. Moreover, VOPA’s power to sue stateofficials is a consequence of Virginia’s own decision to establish a public P&A system. Not every offense to a State’s dignity constitutesa denial of sovereign immunity. The specific indignity against which sovereign immunity protects is the insult to a State of being haledinto court without its consent; that does not occur just because a suithappens to be brought by another state agency. Pp. 9–11.

(3) The apparent novelty of this suit is not likely a consequenceof past constitutional doubts. In order to invoke the Ex parte Youngexception, a state agency needs both a federal right that it possesses against its parent State and authority to sue state officials to enforcethat right, free from any internal state-government veto; such conditions rarely coincide. In any event, the principles undergirding the Ex parte Young doctrine support its extension to actions of this kind. Pp. 12–13.

568 F. 3d 110, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which KENNEDY, THOMAS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. KENNEDY, J., filed a concurring opinion, in which THOMAS, J., joined. ROBERTS, C. J., filed a dissenting opinion, in which ALITO, J., joined. KAGAN, J., took no part in the consideration or decision of the case.

UC - voluntary quit - good cause - emotional health - improper Board reversal of referee - Treon

Fiedler v. UCBR - Cmwlth. Court - April 18, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/1984CD10_4-18-11.pdf

Claimant had good cause to quit his job. He was suffering emotional difficulties due to the death of one of his children and needed to be nearer to the rest of his family for support.. Beachem v. UCBR, 760 A.2d 68, 71 (Pa. Cmwlth. 2000).

Claimant took reasonable measures to preserve his employment. Based on his testimony, the referee found that “[t]he claimant shared with the employer the emotional difficulties he was having trying to cope with the loss of his child.” However, the UCBR, without comment, disregarded this referee’s finding.

In Treon v. UCBR, 499 Pa. 455, 461, 453 A.2d 960, 962 (1982), our Supreme Court stated that if the UCBR determines that particular findings of the referee are inconsistent, incredible or unsupported by the evidence, then the UCBR must indicate such finding. “The [UCBR] may not, however, simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its reasons for doing so.” Id. When the UCBR does so, the appellate court may reinstate the finding. Id. Thus, we reinstate the referee’s finding that Claimant shared his difficulties with Employer, and we conclude that Claimant took reasonable efforts to preserve his employment.

UC - willful misconduct - no substantial evidence

Francois v. UCBR - Cmwlth. Court - April 13, 2011 - unreported memorandum decisions http://www.pacourts.us/OpPosting/Cwealth/out/1059CD10_4-13-11.pdf Where the only evidence of claimant's alleged violation of the employer no-call/no-show policy was the claimant testimony, in which she denied any violations, substantial evidence did not support the Board's finding of willful misconduct. The court remanded the case, because the Board made an "invalid or inadequate finding of fact."

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This summary and others are available at the PLAN Legal Updates http://planupdate.blogspot.com/, which is searchable.

Unreported decisions, even although not binding precedent, can be cited for their persuasive value , pursuant to 210 Pa. Code § 67.55 http://www.pacode.com/secure/data/210/chapter67/chap67tochtml#67.55.

admin. law - petition for review - specificity - Deal

http://pabulletin.com/secure/data/vol41/41-16/646.html

THE COURTS

Title 210—APPELLATE PROCEDURE

PART I. RULES OF APPELLATE PROCEDURE

210 PA. CODE CH. 15 

Amendment of Explanatory Comment to Rule 1513 of the Rules of Appellate Procedure; No. 210 Appellate Procedural Rules Doc.

41 Pa.B. 1999 - Saturday, April 16, 2011

Order

Per Curiam

 And Now, this 31st day of March, 2011, upon the recommendation of the Appellate Court Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. No. 103(a)(3) in the interests of justice and efficient administration:

 It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the Explanatory Comment to Rule 1513 of the Pennsylvania Rules of Appellate Procedure is amended in the following form.

 This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective in thirty days.

Annex A

TITLE 210. APPELLATE PROCEDURE

PART I. RULES OF APPELLATE PROCEDURE

ARTICLE II. APPELLATE PROCEDURE

CHAPTER 15. JUDICIAL REVIEW OF GOVERNMENTAL DETERMINATIONS

PETITION FOR REVIEW

Rule 1513. Petition for Review.

*  *  *  *  *

Explanatory Comment—2011

With respect to the general statement of objections in an appellate jurisdiction petition for review required in subdivision (d)(5), see Maher v. Unemployment Comp. Bd. of Review, 983 A.2d 1264, 1266 (Pa. Cmwlth. 2009).

_______________

Here is a link to Maher http://www.pacourts.us/OpPosting/Cwealth/out/1843CD08_10-27-09.pdf

The Court in Maher affirms the decisions in Deal v. Unemployment Compensation Board of Review, 878 A.2d 131 (Pa. Cmwlth. 2005) and Patla v. UCBR, 962 A.2d 724 (Pa. Cmwlth. 2008), that the Petition for Review must do more than re-state the statutory language about appeals. It must articulate some specific challenge to the UCBR decision.

UC- willful misconduct - violation of work rule - no proof of "willful"

McBride v. UCBR - Cmwlth. Court - april 14, 2011 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1807CD10_4-14-11.pdf

Willful misconduct has been judicially defined as that misconduct which must evidence the wanton and willful disregard of employer's interest, the deliberate violation of rules, the disregard of standards of behavior which an employer can rightfully expect from his employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional substantial disregard for the employer's interest, or the employee's duties and obligations. Frumento v. UCBR, 466 Pa. 81, 351 A.2d 631 (1976). Whether an employee's conduct constituted willful misconduct is a matter of law subject to this Court's review. Miller v. UCBR, 405 A.2d 1034 (Pa. Cmwlth. 1979). The burden of proving willful misconduct rests with the employer. Brant v. UCBR, 477 A.2d 596 (Pa. Cmwlth. 1984).

Where, as is here, a claimant is discharged for violation of a work rule or policy, the employer must establish both the existence of the reasonable work rule and its violation. Brunson v. UCBR, 570 A.2d 1096 (Pa. Cmwlth. 1990). Where the employer proves the existence of a rule, the reasonableness of the rule and the fact of its violation, the burden shifts to the claimant to prove that she had good cause for her action. Guthrie v. UCBR, 738 A.2d 518 (Pa. Cmwlth. 1999).

An employer “must present evidence indicating that the conduct was of an intentional and deliberate nature” in order to prove willful misconduct. Grieb v. UCBR, 573 Pa. 594, 600, 827 A.2d 422, 426 (2003). The deliberate violation of an employer’s rules or policies is generally considered to be willful misconduct. Navickas v. UCBR, 567 Pa. 298, 304, 787 A.2d 284, 288 (2001). Critically, to be disqualifying, the employee’s violation of a rule must be knowing and deliberate. An inadvertent rule violation is not willful misconduct. BK Foods, Inc. v. UCBR, 547 A.2d 873 (Pa. Cmwlth. 1988).

. Employer failed to satisfy its burden of establishing a prima facie case of willful misconduct in light of the facts and totality of the circumstances. Employer did not offer any documents or testimony, during the three valid hearings conducted before the Referee, establishing the existence of a reasonable work policy/rule and a deliberate violation by Claimant of Employer’s rules or policies. The Board found, presumably based on Claimant’s testimony, that Claimant was aware of Employer’s policies and that Claimant violated those policies.

However, Claimant did not testify that she deliberately violated any of Employer’s policies. Claimant maintained throughout this matter, beginning with her appeal letter and ending with her testimony, that she did not commit any of the alleged violations with the deliberate intent of committing willful misconduct. Moreover, Employer offered no evidence to refute Claimant’s assertions.

In making its findings, the Board specifically credited Employer’s testimony that Claimant’s actions were in violation of Employer’s policies. The Board also resolved all conflicts in the testimony in favor of Employer and concluded that Claimant’s behavior rose to the level of willful misconduct.

Again, Employer did not present any testimony regarding Claimant’s actions nor did Employer present any specific testimony or evidence that its policies were reasonable and that Claimant’s actions were a deliberate or intentional violation of Employer’s policies.

Accordingly, we have no choice but to conclude that Employer failed to meet its burden that Claimant deliberately violated its reasonable policies and that the Board’s findings, that purportedly support the Board’s conclusion that Claimant committed willful misconduct, are not supported by substantial evidence.

The Board’s order is reversed.

federal courts - preliminary injunction

Hynoski v. Columbia Co. Redevelopment Authority - MD Pa. - March 11, 2011

http://www.pamd.uscourts.gov/opinions/Conner/10v2222.pdf

The requirements for preliminary injunctive relief are well settled. In order to obtain this extraordinary remedy, the moving party must establish that: (1) there is a reasonable probability of success on the merits, (2) irreparable injury will result without injunctive relief, (3) granting the injunction will avoid a comparably greater hardship than denying it, and (4) the injunction is in the public interest. See Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d Cir. 2002); BP Chems., Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 263 (3d Cir. 2000).

While each factor need not be established beyond doubt, they must combine to show the immediate necessity of injunctive relief. . . . (“[T]he degree of likelihood of success is not determinative. Rather it must be considered and balanced with the comparative injuries of the parties.”). If, however, the moving party fails to show both a reasonable probability of success on the merits and irreparable injury, then the court must deny preliminary injunctive relief. In re Arthur Treacher’s Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Chamberlain, 145 F. Supp. 2d 621, 625 (M.D. Pa. 2001).

Reasonable Probability of Success on the Merits -- To establish a reasonable probability of success on the merits, the moving party must produce sufficient evidence to satisfy the essential elements of the underlying cause of action. See Punnett v. Carter, 621 F.2d 578, 582-83 (3d Cir. 1980). This requires examination of the legal principles controlling the claim and potential defenses available to the opposing party. See BP Chems., 229 F.3d at 264. However, the mere possibility that the claim might be defeated does not preclude a finding of probable success if the evidence clearly satisfies the essential prerequisites of the cause of action. Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 173 (3d Cir. 2001)

Irreparable Injury - Irreparable injury is the sine qua non of preliminary injunctive relief. It is harm of such an irreversible character that prospective judgment would be inadequate to make the moving party whole. See Anderson v. Davila, 125 F.3d 148, 163 (3d Cir. 1997); Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989); Goadby v. Philadelphia Elec. Co., 639 F.2d 117, 121 (3d Cir. 1981) (“This court has repeatedly emphasized the elementary principle that a preliminary injunction shall not issue except upon a showing of irreparable injury.” (internal quotation marks omitted)). The mere risk of injury is not sufficient to meet this standard. Rather, the moving party must establish that the harm is imminent and probable. Anderson, 125 F.3d at 164; 11A WRIGHT ET AL., supra, § 2948.1. Harm that may be contained effectively only through immediate injunctive relief is properly deemed “irreparable.” Instant Air Freight, 882 F.2d at 801. ).

federal courts - 11th Amendment immunity

Hynoski v. Columbia Co. Redevelopment Authority - MD Pa. - March 11, 2011

http://www.pamd.uscourts.gov/opinions/Conner/10v2222.pdf

Suit v. DCED involving eminent domain in Centralia, Pa., home of the eternal mine fire. One landlowner brought sec. 1983 action based on alleged equal protection violation, claiming improper different treatment of his situation from that of another landowner.

The Eleventh Amendment states: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.U.S. CONST. amend. XI.

It provides a jurisdictional bar to private federal litigation against a state and its agencies. Hans v. Louisiana, 134 U.S. 1, 15-16 (1890) (holding that the Eleventh Amendment bars citizens from bringing suit against their own state in federal court); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000); Lombardo v. Pennsylvania, 540 F.3d 190, 194-95 (3d Cir. 2008). The Commonwealth of Pennsylvania is not a defendant in the matter sub judice; nevertheless, DCED, as an arm of the Commonwealth, is entitled to the protections afforded to the Commonwealth by the Eleventh Amendment. See Chittister v. Dep’t of Cmty. & Econ. Dev., 226 F.3d 223, 226 (3d Cir. 2000) (noting that the parties in that case did not dispute that DCED “is within the protection of the Eleventh Amendment”), abrogated in part on other grounds by Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003); see also Des-Ogugua v. Pa. Dep’t of Cmty. & Econ. Dev., No. 1:06-CV-0721, 2006 WL 2950481, at *1 (M.D. Pa. Oct. 16, 2006) (finding that DCED enjoys “Eleventh Amendment immunity from suit”).

Eleventh Amendment sovereign immunity is subject to three basic exceptions: (1) Congress may specifically abrogate a state’s sovereign immunity by exercising its enforcement power under the Fourteenth Amendment; or (2) a state may waive its sovereign immunity by consenting to suit; or (3) under Ex Parte Young, a state official may be sued in his/her official capacity for prospective injunctive relief. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999); Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002); Hindes v. FDIC, 137 F.3d 148, 165 (3d Cir. 1998).

Plaintiffs’ § 1983 claims against DCED do not fall under any of these exceptions to Eleventh Amendment immunity. First, it is well settled that Congress did not intend to abrogate the states’ sovereign immunity by enacting § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66(1989). Second, Pennsylvania has unequivocally withheld its consent to such suits.See 42 PA. CONS. STAT. § 8521(b); see also Lombardo, 540 F.3d at 196 n.3; Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). Third, the Ex Parte Young exception to the Eleventh Amendment’s jurisdictional bar is inapplicable to plaintiffs’ claim against DCED; the exception applies only to officials, not to state agencies. See Ex Parte Young, 209 U.S. 123 (1908). The court therefore concludes that DCED enjoys sovereign immunity.5

Steven Fishman [chief counsel at DCED], who is being sued in his official capacity, also argues that he enjoys immunity from plaintiffs’ claims under the Eleventh Amendment; however, he fails to address the doctrine of Ex Parte Young. The Third Circuit has opined that “a state official sued in his official capacity for prospective injunctive relief is a person within section 1983, and the Eleventh Amendment does not bar such a suit.” Hindes v. FDIC, 137 F.3d 148, 165 (3d Cir. 1998). Insofar as plaintiffs seek prospective injunctive relief against Fishman, a state official sued in his official capacity, the court rejects Fishman’s sovereign immunity defense.

federal courts - sec. 1983 - statute of limitations

Hynoski v. Columbia Co. Redevelopment Authority - MD Pa. - March 11, 2011

http://www.pamd.uscourts.gov/opinions/Conner/10v2222.pdf

The statute of limitations for an action under 42 U.S.C. § 1983 corresponds to the local statute of limitations for tort actions seeking recovery for personal injuries. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985); Reitz v. County of Bucks, 125 F.3d 139, 143 (3d Cir. 1997).

Hence, Pennsylvania’s two - year statute of limitations for personal injury actions governs § 1983 claims brought in federal court in Pennsylvania. See 42 PA. CONS. STAT. § 5524; see also Sameric Corp. of Del. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998) (“In actions under 42 U.S.C. § 1983, federal courts apply the state’s statute of limitations for personal injury.”).

Federal law controls the determination as to when a § 1983 claim accrues. See Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998); Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991). Under federal law, “[a] section 1983 cause of action accrues when the plaintiff knew or should have known of the injury upon which its action is based.” Sameric, 142 F.3d at 599.

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malpractice - statute of limitations - occurrence rule v. discovery rule

Knopick v. Connelly, et al. - 3d Cir. - April 13, 2011

http://www.ca3.uscourts.gov/opinarch/101589p.pdf

Discovery rules applied under the facts of the case. Lengthy and detailed analysis of the tolling issue for legal malpractice claim in Pennsylvania, as well as when it is appropriate to apply to discovery rule (when the harm was discovered) v. occurrence (the act that caused the harm).

admin. law - statutory construction - no deference to agency expertise

In Re: Petition for Formation of Independent School District - Cmwlth. Court - April 13, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/2210CD09_4-13-11.pdf Courts will defer to an agency’s expertise where the agency evaluates and resolves conflicts in the evidence, particularly where the evidence is technical in nature. Yi v. State Board of Veterinary Medicine, 960 A.2d 864, 870 (Pa. Cmwlth. 2008). However, “the meaning of [a] statute is a question of law for the court.” Connecticut General Life Insurance Company v. Pennsylvania Life and Health Insurance Guaranty Association, 866 A.2d 465, 467 (Pa. Cmwlth. 2005). Courts can defer to an agency’s interpretation of the statute where that statute is ambiguous or relates to a complex subject, such as a technical tax question. Tool Sales & Service Co., Inc. v. Board of Finance and Revenue, 536 Pa. 10, 22, 637 A.2d 607, 613 (1993). Otherwise, the agency’s interpretation “carries little weight,” especially where it is wrong. Office of Administration v. Pennsylvania Labor Relations Board, 591 Pa. 176, 190 n.11, 916 A.2d 541, 549 n.11 (2007). The Secretary’s “expertise” is irrelevant to the statutory construction issue.

abuse - expungement - presumption

B.B. (now B.L.) v. DPW - Cmwlth. Court, April 13, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/6CD10_4-13-11.pdf

The presumption in 23 Pa.C.S. 6381(d) -- that the "parent or other person" responsible for a child’s welfare was the person who the child abuse, and only the abuse itself had to be established in the case of an indicated child abuse by prima facie evidence -- cannot be applied where more than one individual was entrusted with a child’s care during the period in which medical evidence shows the injuries were inflicted.

On its own, the language of Section 6381(d) resolves the case. In sec. 6381(d), the General Assembly in setting forth the presumption refers only to the “parent or other person” responsible for the welfare of the child. 23 Pa.C.S. §6381(d). The clear use of the singular tense therein cannot be read as an accident, and cannot therefore be read to apply to any situation in which the presumption is sought to be applied to more than one “parent or person.”

Accordingly, we hold that the only reasonable statutory construction of Section 6381(d) leads to the sole conclusion that it is applicable only to one caregiver, absent some additional evidence that would serve to eliminate from consideration all but one caregiver (or, additional evidence that would implicate more than one or all caregivers)