UC - rule violation; sec. 3, - criminal conviction

Green v. UCBR - Cmwlth. Court - July 13, 2011 - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/2232CD10_7-13-11.pdf

Rule violation - Supervisory, management employee did not violate a rule which applied, on its face, only to non-supervisory, non-management employees.

Sec. 3 - Claimant did not violate sec. 3, even though he was charged with a number of serious non-work-related offenses, including involuntary deviate sexual intercourse of a person less than 16 years of age, aggravated indecent assault of a person less than 13 years of age; indecent assault of a person less than 16 years of age, endangering the welfare of children and corruption of minors. All but one of the criminal charges were dismissed, and claimant pleaded nolo contendere to the one remaining charge, endangering the welfare of children, a misdemeanor. He received a sentence of three years of probation, was ordered to have no contact with the minor involved in the incident, and to comply with a mental health evaluation if necessary.

Section 3 can operate to disqualify claimants on the basis of off-duty, non-job related misconduct. Claimants can be found ineligible only if their behavior “(1) is inconsistent with acceptable standards of behavior, and (2) directly reflects upon his or her ability to perform the assigned duties.” Martin v. UCBR, 713 A.2d 753, 754 (Pa. Cmwlth. 1998) [citing UCBR v. Derk, 353 A.2d 915, 917 (Pa. Cmwlth. 1976)].

A criminal conviction is considered conclusive proof of the facts charged, and often is sufficient to prove the first prong of this test, Hawkins v. UCBR, 695 A.2d 963 (Pa. Cmwlth. 1997), but in evaluating the second prong, a number of factors must be considered, including: (a) the specific nature of the offense committed by Claimant; (b) the nature of Claimant's assigned duties; (c) whether Claimant's job requires any special degree of trust on the part of the employer; and (d) any other circumstances which may particularly affect Claimant's ability to do his job, including whether the crime occurred on or off Employer's premises, and whether or not it involved any of Employer's other workers or clients. SEPTA v. UCBR, 506 A.2d 974, 977 (Pa. Cmwlth. 1986).

In this case, the claimant plea of nolo contendere to the charge of endangering the welfare of a child is sufficient to prove the first prong, but UPMC offered no evidence which would satisfy the second prong by showing that the conviction directly reflects upon claimant’s ability to perform his assigned duties. In the record, there is scant evidence of the conduct underlying the conviction, no evidence whatsoever of claimant's duties or the degree of trust placed in him by his employer, and no reasons offered why the conviction would affect Green’s ability to do his job.

The Board’s finding that claimant’s conviction directly reflects upon his ability to perform his assigned duties is not supported by substantial evidence. The Board, therefore, erred in finding claimant ineligible under Section 3 of the Law.

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

UC - hearing - procedure - limitation of cross-examination

Philadelphia Parking Authority v. UCBR - July 13, 2011 - unpublished memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/2578CD10_7-13-11.pdf

After both parties had presented their cases and rested, a limited inquiry by the referee into the basic background facts needed to issue a decision and order did not open the door for the employer to cross-examine the claimant regarding the very substance of the claim for benefits, especially where the employer chose not to call claimant as an adverse witness during its case and employer specifically declined to testify on his own behalf and in support of his claim for benefits.

Because the employer could have called claimant as a witness before it rested and the referee limited his inquiry into confirming only that claimant did not dispute that he was discharged, we discern no abuse of discretion in prohibiting cross-examination regarding the circumstances of the discharge in this case.

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

UC - voluntary quit - health reasons

Valeriano v. UCBR - July 13, 2011 - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/2787CD10_7-13-11.pdf

Claimant had a necessitous and compelling health reason to leave her employment, where

- her physician directed her to stay out of work she reinjured her leg while working on a light-duty position.

- Claimant informed Employer of her inability to return to work and provided doctor's notes and other supporting medical documentation

- She was able and available to perform sedentary work within her physical restrictions

- She resigned after Employer denied her workers' compensation claim and did not respond for three weeks to her request for FMLA disability leave.

These facts found by the Board are sufficient to establish a necessitous and compelling health reason for terminating her employment under Ridley Sch. Dist v. UCBR, 637 A.2d 749 (Pa. Cmwlth. 1994).

Because Claimant terminated her employment due to a necessitous and compelling health reason, not to avoid an imminent discharge, the Board's finding that Employer did not tell her that her job was in jeopardy is irrelevant to her eligibility for benefits under Section 402(b) of the Law. Compare Pa. Liquor Control Bd. v. UCBR, 648 A.2d 124 (Pa. Cmwlth. 1994) (claimant's separation from employment was a discharge for willful misconduct, not a voluntary quit, because she resigned in order to avoid an imminent discharge for a disciplinary reason).

Reasonable effort to preserve employment - The record also establishes that Claimant made a reasonable effort to preserve her employment. In Genetin v. UCBR, 499 Pa. 125, 130-31, 451 A.2d 1353, 1356 (1982), the Pennsylvania Supreme Court held: Where an employee because of a physical condition, can no longer perform his regular duties, he must be available for suitable work, consistent with the medical condition, to remain eligible for benefits. However, once he has communicated his medical problem to the employer and explained his inability to perform the regularly assigned duties, an employee can do no more. The availability of a position, the duties expected to be performed by one serving in that capacity, and the desirability of that individual for service in that capacity are managerial judgments over which the employee has no control. As long as the employee is available where a reasonable accommodation is made by the employer, that is not inimical to the health of the employee, the employee has demonstrated the good faith effort to maintain the employment relationship required under the Act. … To insist upon the employee's initiating the quest for an alternative position, would require a meaningless ritual that does not further the objectives of the Act.

In this matter, Employer was aware of Claimant's health problems. Claimant was available and able to perform suitable work within her physical restrictions, as the Board found. Employer did not dispute that Claimant inquired about alternative positions and applied for one. Employer, however, did not offer her any suitable work and did not even respond to her letter requesting disability leave before she resigned. Claimant’s undisputed testimony shows that she visited the Administration office several times and provided all the requested documentation. She testified: "I kept asking Is there anything else you need? Is there anything else you need? And the answer was no." N.T. at 20

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

EAJA - atty. fees - special circumstances - development of collateral issues

Second Circuit: Failure to Develop Collateral Issues Does Not Warrant Reduction in Fees Awarded Under EAJA for Lawyer Representing Disability Claimant
Mark Hamblett, “Circuit Court Criticizes Big Fee Reduction in Disability Case,”New York Law Journal, July 11, 2011

The New York Law Journal writes: “The failure of a Social Security claimant's counsel to develop an administrative record on issues collateral to a disability determination is not a special circumstance that warrants a fee reduction under the Equal Access to Justice Act, a federal appeals court has ruled.

The U.S. Court of Appeals for the Second Circuit on Friday reversed a magistrate judge's decision to slice an attorney's fees by two-thirds.

The decision in Vincent v. Commissioner of Social Security, 10-2437-cv, was made by Judges John M. Walker Jr., Guido Calabresi, and Richard C. Wesley. [Mark] Schneider represented Loretta Vincent on her successful claim for disability benefits based on a work-related back injury that rendered her unable to work beginning in August 2004. . . .

Judge Walker noted that the District Court said Mr. Schneider failed to identify a discrepancy in Ms. Vincent's work history and also should have developed the record to explain why she did not comply with treatment recommendations. ‘The district court demanded too much of counsel,’ Judge Walker said. ‘If we endorsed the district court's position, counsel would have to anticipate and refute all conceivable credibility issues to be assured recovery of attorney's fees after prevailing on appeal. This is not, nor should it be, the bar against which representation in Social Security matters is assessed for purposes of awarding [Equal Access to Justice Act] fees,’ he said.”

SSI - standard of review of magistrate decision; functional capacity

Brown v. Astrue - 3d Cir. - July 6, 2011

http://www.ca3.uscourts.gov/opinarch/103435p.pdf

Appeal from magistrate judge to district court - de novo review required

District Court review of magistrate judge decision must be de novo under 28 U.S.C. 636(b)(1)(b). If a party timely and properly files a written objection to the magistrate's report , the District Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Sec. 636(b)(1) requires district courts to review such objections de novo unless the objection is "not timely or not specific," even if the district court believes that the objections "merely rehash arguments presented to and considered by a magistrate judge." Any appeal to a district court based on an objection to a Magistrate Judge’s order will "rehash arguments presented to and considered by" the Magistrate Judge. That is—by definition—the very nature of "review." In SSI appeals, the plain language of 636(b)(1) and the ruling in Goney v. Clark, 749 F.2d 5 (3d Cir. 1984) make clear that the standard district courts should apply to such objections is de novo.

However, the district court's error was held to have been harmless, for the reasons set out below.

Functional capacity - treating physician v. non-examining state agency consultant

The ALJ adequately explained his acceptance of the opinion of a testifying medical expert -- which was based on the opinion of a [non-examining?] state agency consultant, over the opinion of the treating psychiatrist.

Credibility - functional capacity - Here too, the court held that the ALJ decision was supported by substantial evidence. Totally boiler-plate language by the court.

contracts - releases, fraud in the inducement

Mackay v. Donovan - ED Pa. - July 1, 2011

http://www.paed.uscourts.gov/documents/opinions/11D0703P.pdf

Contractual release

A contractual release from litigation is an affirmative defense to a claim against any party to that release.7 That defense is generally asserted by motion for judgment on the pleadings or summary judgment.8 If the movant clearly establishes that there are no material issues of fact, a contractual release from a claim can be a complete defense to the pleadings.9 Releases are construed pursuant to the traditional principles of contract law, and a release that is not obtained by fraud, duress, or mutual mistake is binding between the parties.10 “The fundamental rule in interpreting a contract is to ascertain and give effect to the intent of the contracting parties. . . . The intent of the parties to a written agreement is embodied in the writing itself. . . . When contractual language is clear and unequivocal, its meaning must be determined by its contents alone.”11

Fraud in the Inducement

A release that is obtained by fraud is not binding between the parties.19 In order to state a prima facie case of fraud, a plaintiff must show (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying upon it; (5) justifiable reliance on the misrepresentation; and (6) a resulting injury proximately caused by the reliance.20

--------------------------------

4 Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008); Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir. 2005).

5 Allah v. Al-Hafeez, 226 F.3d 247, 249 (3d Cir. 2000).

6 Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004).

7 Fed. R. Civ. P. 8(c).

8 Straight Arrow Prods. v. Conversion Concepts, Inc., No. 01-221, 2001 WL 1530637, *2 (E.D. Pa. Dec. 3, 2001).

9 Id.

10 Jordan v. SmithKline Beecham, Inc., 958 F. Supp. 1012, 1020 (E.D. Pa. 1997); Black v. Jamison, 913 A.2d 313, 318 (Cmwlth. Ct. 2006); Davis ex. rel. v. Gov’t. Emps. Ins. Co., 775 A.2d 871 (Pa. Super. Ct. 2001).

11 Crawford Cent. Sch. Dist. v. Commonwealth of Pa., 888 A.2d 616, 623 (Pa. 2005)(citation omitted).

19 Cf. Jordan, 958 F. Supp. at 1020; Black, 913 A.2d at 318.

20 Id.

UC - qualifying wages

Nikolova v. UCBR - Cmwlth Court. - July 1, 2011 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/2638CD10_7-1-11.pdf

Claimant denied benefits because she earned

- $172 less than base year wagesunder the table in sec. 404, 43 PS 804

- $52 less than step-down amount.

and thus did not satisfy financial eligibility requirements, as set out in sec. 401(a), 43 PS 801(a).

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

Civil Procedure - Prothonotary - powers - no power to reject or evaluate documents

Brown v. Levy - Cmwlth. Court - June 27, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/1270CD09_6-27-11.pdf

The court held that under Pa. R.C.P. 205.2, a prothonotary has a "duty to file documents that substantively comply with the rules of civil procedure."

In this mandamus action by a prisoner, the prothonotary filed a motion to dismiss the action, alleging that it constituted "prison conditions litigation" under the three-strikes provision of the state Prison Litigation Reform Act, 42 Pa. C.S. 6601 et seq., which authorized dismissal of such cases after 3 or more by the same prisoner had been dismissed as frivolous.

The court agreed with the plaintiff prisoner that a mandamus action is not "prison conditions litigation". It stated further that "the Prothonotary, while playing an essential role in our court system, lacks authority to interpret statutes, evaluate the merits of a litigant’s pleading, and decline to accept a timely filed document.

It is “well settled” in the intermediate courts of this Commonwealth that the role of the prothonotary of the court of common pleas, while vitally important, is purely ministerial. . . As a purely ministerial office, any authority exercised by the prothonotary must derive from either statute or rule of court. . . Further, as “[t]he prothonotary is merely the clerk of the the court of Common Pleas[,][h]e has no judicial powers, nor does he have power to act as attorney for others by virtue of his office.” . . . Consistent therewith, “[t]he prothonotary is not ‘an administrative officer who has discretion to interpret statutes.’” . . .Thus, while playing an essential role in our court system, the prothonotary’s powers do not include the judicial role of statutory interpretation. . . [I]f documents tendered for filing are proper on their face and in conformity to the rules of court, a prothonotary does not have discretion to refuse to enter them. [citations omitted throughout].

UC - willful misconduct - public challenge of employer action

Kelly v. UCBR - Cmwlth. Court - June 24, 2011 - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1924CD10_6-24-11.pdf

Claimant's questioning of an employer decision in a non-abusive, non-abrasive and non-vulgar (“[d]oes everyone hear this, I am against this.”) held not to be willful misconduct, even though it took place in a waiting room where there were some employer patients. See Luketic v. UCBR, 386 A.2d 1045 (Pa. Cmwlth. 1978), and Dincher v. UCBR, 502 A.2d 797 (Pa. Cmwlth. 1986).

Luketic - A poor attitude alone does not equal willful misconduct, especially where the claimant’s language was neither abusive nor vulgar and appeared justified in light of her experience. We refused to hold that rais[ing] in a non-abusive fashion what under the circumstances was a legitimate question … even coupled with a finding of a bad attitude, can reasonably be classified as willful misconduct under the [Law].

Dincher - The “mere challenge of the employer’s veracity absent vulgar and offensive language was not willful misconduct….” Dincher, 502 A.2d at 799. We also held that the “mere talking back to a supervisor absent abusive language is not willful misconduct for purposes of the [Law].” Id. at 800.

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

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

UC - voluntary quit - medical reasons

Woolf Steel, Inc. v. UCBR - Cmwlth. Court - June 24, 2011 - unpublished memoradum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/2164CD10_6-24-11.pdf

The court rejected an employer appeal and upheld that grant of benefits to claimant, who had serious surgery which temporarily limited his ability to do his former, heavy work. Claimant fully informed employer about his limitations and was available for work consistent with those limitations.

Here is some of the court's discussion of the issues.

In Genetin v. UCBR, 499 Pa. 125, 451 A.2d 1353 (1982), our Supreme Court set forth the standard applicable where a claimant asserts medical reasons for his voluntary quit. Genetin provides that in such cases a claimant may meet his burden under section 402(b) of the Law by showing: (1) adequate health reasons existed to justify the voluntary termination; (2) the claimant communicated such reasons to the employer; and (3) the claimant is available to work if reasonable accommodations can be made. In Genetin, the court also stated that “once [the employee] has communicated his medical problem to the employer and explained his inability to perform the regularly assigned duties, an employee can do no more.” Id., 499 Pa. at 131, 451 A.2d at 1356.

Our Supreme Court rejected the notion that an employee must specifically request a transfer to a more suitable position. Instead, the court in Genetin held that where an employee voluntarily terminates employment because of a medical condition, the employee must establish that he can no longer perform his regular duties due to the medical condition, inform his employer that he can no longer perform his regular duties, and be available for suitable work consistent with his medical condition. Pursuant to the Supreme Court’s holding, if the employee does this in good faith, it is up to the employer to provide suitable work. Genetin, 499 Pa. 125, 451 A.2d 1353 (1982).

A claimant need not always produce expert medical testimony or medical documentation to satisfy his burden to present “competent evidence”: The distinction between ‘competent evidence’ ... and the ‘competent medical evidence’ requirement articulated in the opinion of the court below is vital. The former is a broader standard which allows an applicant to meet the burden with his own testimony and supporting documents. The latter is a more stringent requirement which could result in the denial of benefits simply because an applicant fails to provide the expert testimony of a physician even where such testimony would be superfluous or cumulative. The broader standard more effectively comports with this Court's view that the Unemployment Compensation Law must be liberally and broadly construed. Steffy v. UCBR, 453 A.2d 591, 594 (Pa. 1982) (emphasis added). This Court subsequently interpreted Steffy to allow a claimant to satisfy his or her burden of production by presenting her testimony and/or supporting documents. Lee Hospital v. UCBR, 637 A.2d 695 (Pa. Cmwlth. 1994); Judd v. UCBR, 496 A.2d 1377 (Pa. Cmwlth. 1985). In Goettler Distributing, Inc. v. UCBR, 508 A.2d 630 (Pa. Cmwlth. 1986), this Court expressly concluded that the disjunctive “and/or” interpretation of Steffy was the better analysis and was consistent with the broad and liberal interpretation of the Law. Philadelphia Parking Authority v. UCBR, 1 A.3d 965, 968-969 (Pa. Cmwlth. 2010)

Claimant provided sufficient credible evidence to establish that adequate health reasons existed causing him to voluntarily terminate his employment, that he tried to communicate these concerns to Employer, and that he was available to work. Therefore, the Board properly concluded that Claimant is not ineligible for benefits under sections 401(d)(1) or 402(b) of the Law. Accordingly, we affirm.

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

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

UC - self-employment - attorney - sec. 402(h)

Kress v. UCBR - Cmwlth. Court - June 23, 2011



http://www.pacourts.us/OpPosting/Cwealth/out/2500CD10_6-23-11.pdf



Claimant, an attorney, was hired by a law firm to do Criminal Justice Act (CJA) cases, and applied for UC benefits after he was laid off.



Under Section 402(h) of the Law, an employee who engages in self-employment is ineligible for benefits unless (1) the self-employment began prior to the termination of the employee’s full-time employment; (2) the self-employment continued without substantial change after the termination; (3) the employee remained available for full-time employment; and (4) the self-employment was not the primary source of the employee’s livelihood. O’Hara v. UCBR, 648 A.2d 1311 (Pa. Cmwlth. 1994). The claimant bears the burden of proving that his activity is non-disqualifying under Section 402(h). Id. Claimant contends that the Board erred in denying him benefits because he met all of the above criteria. We agree.



- Claimant’s activities in respect to the CJA clients remained the same before, during and after his employment with Employer. Consequently, Claimant met the first prong of the test.



- Because the test is whether the claimant has worked on the activity for significantly more hours than he did prior to the separation, and the only testimony available was from Claimant who stated that his workload remained roughly the same, Claimant also met this prong of the test.



- Because Claimant testified that he was available for full-time employment and was looking for a job at a law firm, he met the third prong of the test.



- Clearly, the sideline job was not a primary source of income at $10,000 a year compared to his law firm job paying $65,000 a year, and Claimant met the fourth prong as well.

Because Claimant proved that his CJA activities were nondisqualifying under Section 402(h), Claimant is entitled to unemployment compensation benefits.

UC - willful misconduct - absenteeism

Abdellah v. UCBR - Cmwlth. Court - June 23, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/2166CD10_6-23-11.pdf

Absenteeism, alone, “is not a sufficient basis for denial of unemployment benefits,” even though it may constitute grounds for discharge. Runkle v. UCBR, 521 A.2d 530, 531 (Pa. Cmwlth. 1987).

In order for absenteeism to constitute willful misconduct, an additional element is necessary. Id. Factors that are considered in leading to a showing of absenteeism constituting willful misconduct are: “(1) [e]x-cessive absences, (2) [f]ailure to notify the employer in advance of the absence, (3) [l]ack of good or adequate cause for the absence, (4) [d]isobedience of existing company rules, regulations, or policy with regard to absenteeism, [and] (5) [d]isregard of warnings regarding absenteeism.” Petty v. UCBR, 325 A.2d 642, 643 (Pa. Cmwlth. 1974).

When an employer fires a claimant for a pattern of absenteeism, the claimant will be eligible for benefits if the final absence was justified. See, e.g., Runkle, 521 A.2d at 531 (holding claimant eligible for benefits because there was substantial evidence to show claimant was ill on her last absences); Haigler v. Commonwealth, 462 A.2d 954, 955 (Pa. Cmwlth. 1982) (holding claimant ineligible for benefits because he failed to justify his last absence).

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UC - indpt. contractor - campaign manager for political candidate

http://www.pacourts.us/OpPosting/Cwealth/out/2098CD10_6-21-11.pdf

Cmwlth Court - June 21, 2011

Barrett, campaign manager for Tracy, candidate for Lt. Gov. of Illinois, held to be an independent contractor.

PFA - contempt - multiple contempts - sentence of > 6 months proper

Hill v. Randolph - Pa. Super. - June 1, 2011

http://www.pacourts.us/OpPosting/Superior/out/s80015_10.pdf

Defendant was convicted of two counts of indirect criminal contempt for violations of a PFA order, arising out of a single incident. One contempt involved entry into plaintiff's home; the other involved his physical abuse of her. The trial court found defendant guilty and sentenced him to 6 months imprisonment on each contempt charge, for a total imprisonment of one year.

The court rejected defendant's challenges to an aggregate sentence of more than 6 months, the maximum sentence for a PFA violation, stating "We infer nothing in the PFA Act1 to bar prosecution of multiple ICC charges arising from different violations of the same order, nor are double jeopardy or trial-by-jury rights implicated in the facts before us. Accordingly, we affirm."

Sec. 1983 - free speech - citizen v. employee

Tatum v. Phila. Housing Authority - ED Pa. - May 26, 2011

http://www.paed.uscourts.gov/documents/opinions/11D0586P.pdf

Section 1983 provides a remedy for vindicating federal substantive rights. . . .The Court has recognized “an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” . . .To allege a Section 1983 violation against multiple defendants, the plaintiff “must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”

Because Section 1983 is a “remedy for deprivations of rights established elsewhere in the Constitution or federal laws,” “the initial question in a section 1983 action is whether the plaintiff has alleged a deprivation of a constitutional right at all.”. . . Here, Plaintiff alleges a constitutional deprivation of his First Amendment rights resulting in his termination from PHA.

The Third Circuit employs the following three-step burden-shifting analysis to a public employee’s Section 1983 claim of retaliation for engaging in protected activity under the First
Amendment: (1) the employee must demonstrate that his/her speech is protected, that is, it addresses a matter of public concern and the “employee’s interest in the speech outweighs” the employer’s countervailing interest “in promoting workplace efficiency and avoiding workplace disruption” (i.e., the balancing test established in Pickering v. Bd. of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed.2d 811 (1968)); (2) the employee must prove that his/her speech was “a substantial or motivating factor” in the retaliatory action against him/her, which, if proven; (3) shifts the burden to the employer to prove that the “allegedly retaliatory action would have been taken absent the protected [speech].” Reilly v. City of Atlantic City, 532 F.3d 216, 224 (3d Cir. 2008) (citation omitted).

The governing Supreme Court case addressing whether a public employee’s speech is protected under the First Amendment is Garcetti v. Ceballos, 547 U.S. 410 (2006). The Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 421. In Garcetti, the plaintiff, Richard Ceballos, a deputy district attorney, investigated inaccuracies in an affidavit used to obtain a search warrant in a pending case, communicated his concerns to his supervisors regarding the matter, and wrote a memorandum recommending dismissal of the case. Garcetti, 547 U.S. at 413-14. Ceballos testified on behalf of the defense regarding his concerns, and was demoted and transferred shortly after testifying. Id. at 414-15. Ceballos contended that his speech was constitutionally protected and the retaliation was unlawful. Id. at 415. The Supreme Court determined that Ceballos wrote the memorandum “pursuant to official responsibilities” and therefore had no claim for unconstitutional retaliation. Id. at 424.

Following Garcetti, the Third Circuit held that: [a] public employee’s statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have “an adequate justification for treating the employee differently from any other member of the general public” as a result of the statement he made. . . The Court will consider the “content, form, and context of a given statement” to determine whether a government employee’s expressive conduct involves a “matter of public concern.”

immigration - pre-emption - federal immigration law does not pre-empt state law relating to employment of "unauthorized aliens" -

http://www.supremecourt.gov/opinions/10pdf/09-115.pdf (69 pp.)

SUPREME COURT OF THE UNITED STATES
Syllabus
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA ET AL. v. WHITING ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 09–115. Argued December 8, 2010—Decided May 26, 2011

The Immigration Reform and Control Act (IRCA) makes it “unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee,for employment in the United States an alien knowing the alien is an unauthorized alien.” . . . Employers that violate that prohibition may be subjected to federal civil and criminal sanctions. IRCA also restricts the ability of States to combat em-ployment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or re-cruit or refer for a fee for employment, unauthorized aliens.”. . . .IRCA also requires employers to take steps to verify an employee’seligibility for employment. In an attempt to improve that verification process in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Congress created E-Verify—an internet-based system employers can use to check the work authorization status of employees.

Against this statutory background, several States have recently enacted laws attempting to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws.” Arizona is one of them. The Legal Arizona WorkersAct provides that the licenses of state employers that knowingly orintentionally employ unauthorized aliens may be, and in certain cir-cumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify. The Chamber of Commerce of the United States and various busi-ness and civil rights organizations (collectively Chamber) filed this federal preenforcement suit against those charged with administering the Arizona law, arguing that the state law’s license suspensionand revocation provisions were both expressly and impliedly pre-empted by federal immigration law, and that the mandatory use of E-Verify was impliedly preempted. The District Court found that the plain language of IRCA’s preemption clause did not invalidate the Arizona law because the law did no more than impose licensing conditions on businesses operating within the State. Nor was the state law preempted with respect to E-Verify, the court concluded, because although Congress had made the program voluntary at the nationallevel, it had expressed no intent to prevent States from mandatingparticipation. The Ninth Circuit affirmed.

Held: The judgment is affirmed. 558 F. 3d 856, affirmed. THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I and II–A, concluding that Arizona’s licensing law is not expressly preempted.Arizona’s licensing law falls well within the confines of the author-ity Congress chose to leave to the States and therefore is not ex-pressly preempted. While IRCA prohibits States from imposing “civilor criminal sanctions” on those who employ unauthorized aliens, it preserves state authority to impose sanctions “through licensing and similar laws.” . . . That is what the Arizona law does—it instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens. The definition of “license” contained in the Arizona statute largely parrots the definition of “license” that Congress codified in the Administrative Procedure Act (APA).The state statute also includes within its definition of “license” documents such as articles of incorporation, certificates of partnership, and grants of authority to foreign companies to transact business in the State. . . .each of which has clear counterparts in APA and dictionary definitions of the word “license.” And even if a law regulating articles of incorporation and the like is not itself a “licensing law,” it is at the very least “similar” to one, and therefore comfortably within the savings clause.

The Chamber’s argument that the Arizona law is not a “licensing” law because it operates only to suspend and revoke licenses rather than to grant them is without basis in law, fact, or logic. The Chamber contends that the savings clause should apply only tocertain types of licenses or only to license revocation following an IRCA adjudication because Congress, when enacting IRCA, eliminated unauthorized worker prohibitions and associated adjudication procedures in another federal statute. But no such limits are even remotely discernible in the statutory text. The Chamber’s reliance on IRCA’s legislative history to bolster its textual and structural arguments is unavailing given the Court’sconclusion that Arizona’s law falls within the plain text of the savings clause. Pp. 9–15.

THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO, concluded in Part II–B:
The Arizona licensing law is not impliedly preempted by federal law. At its broadest, the Chamber’s argument is that Congress intended the federal system to be exclusive. But Arizona’s procedures simply implement the sanctions that Congress expressly allowed theStates to pursue through licensing laws. Given that Congress spe-cifically preserved such authority for the States, it stands to reasonthat Congress did not intend to prevent the States from using appro-priate tools to exercise that authority.

And here Arizona’s law closely tracks IRCA’s provisions in all material respects. For example, it adopts the federal definition of who qualifies as an “unauthorized alien,” . . . ; provides that state investiga-tors must verify the work authorization of an allegedly unauthorized alien with the Federal Government, making no independent determination of the matter, . . . and requires a state court to “consider only the federal government’s determination,” . . . .

The Chamber’s more general contention that the Arizona law ispreempted because it upsets the balance that Congress sought to strike in IRCA also fails. The cases on which the Chamber relies in making this argument all involve uniquely federal areas of interest. . . Regulating in-state businesses through licensing laws is not such an area. And those cases all concern state actions that directly interfered with the operation of a federal program. . . .There is no similar interference here.

The Chamber asserts that employers will err on the side of discrimination rather than risk the “ ‘business death penalty’ ” by “hiring unauthorized workers.” That is not the choice. License termination is not an available sanction for merely hiring unauthorizedworkers, but is triggered only by far more egregious violations. And because the Arizona law covers only knowing or intentional violations, an employer acting in good faith need not fear the law’s sanctions. Moreover, federal and state antidiscrimination laws protect against employment discrimination and provide employers with a strong incentive not to discriminate. Employers also enjoy safe harbors from liability when using E-Verify as required by the Arizonalaw. The most rational path for employers is to obey both the law barring the employment of unauthorized aliens and the law prohibiting discrimination. There is no reason to suppose that Arizona employers will choose not to do so. Pp. 15–22.

THE CHIEF JUSTICE delivered the opinion of the Court with respect to Part III–A, concluding that Arizona’s E-Verify mandate is not impliedly preempted.
Arizona’s requirement that employers use E-Verify is not impliedlypreempted. The IIRIRA provision setting up E-Verify contains no language circumscribing state action. It does, however, constrain federal action: absent a prior violation of federal law, “the Secretaryof Homeland Security may not require any person or . . . entity” outside the Federal Government “to participate in” E-Verify. IIRIRA, §402(a), (e). The fact that the Federal Government may require the use of E-Verify in only limited circumstances says nothing aboutwhat the States may do. The Government recently argued just thatin another case and approvingly referenced Arizona’s law as an ex-ample of a permissible use of E-Verify when doing so.

Moreover, Arizona’s use of E-Verify does not conflict with the federal scheme. The state law requires no more than that an employer, after hiring an employee, “verify the employment eligibility of the employee” through E-Verify. . . . And the consequences of not using E-Verify are the same under the state and federal law—an employer forfeits an otherwise available rebuttable presumption of compliance with the law. Pp. 23–24.

THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO, concluded in Part III–B:
Arizona’s requirement that employers use E-Verify in no way obstructs achieving the aims of the federal program. In fact, the Gov-ernment has consistently expanded and encouraged the use of E-Verify, and Congress has directed that E-Verify be made available inall 50 States. And the Government has expressly rejected the Cham-ber’s claim that the Arizona law, and those like it, will overload the federal system. Pp. 24–25.

ROBERTS, C. J., delivered the opinion of the Court, except as to PartsII–B and III–B. SCALIA, KENNEDY, and ALITO, JJ., joined that opinion in full, and THOMAS, J., joined as to Parts I, II–A, and III–A and con-curred in the judgment. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion. KAGAN, J., took no part in the consideration or decision of the case.

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