custody - relocation

S.J.S. v. M.J.S. – Superior Court – August 7, 2013 (25 pp.)

http://www.pacourts.us/assets/opinions/Superior/out/J-A05028-13o%20-%201015113991683859.pdf?cb=1

Mother's relocation request Erie to Bucks County denied.

The Court rejected mother's argument that, because there was no existing court order, the trial court should have made a custody determination and then engaged in the relocation analysis, rather than, as here, combining the considerations and rendering an order that awarded primary custody contingent on Mother’s ultimate decision on where she would reside.

The Court disagreed with Mother’s claim that the trial court elevated relocation over custody. It specifically stated that it placed no greater emphasis on the relocation factors simply because they were analyzed first. “The Court considers the § 5337(h) factors together with the broader best interests of the children in mind in assessing which party shall be ordered primary physical custodial and whether Mother’s request for relocation will be permitted.”  Under these circumstances, it is unrealistic to compartmentalize the issues. 

The trial court engaged in the proper analysis using both relocation and custody factors, with the best interest standard as the guide. The court may have concentrated on relocation factors, but this was because it recognized that the custody arrangement was in dispute only in the event Mother chose to relocate. The parties recognized this as well.

Burden of proof - Finally, as the party proposing relocation, Mother bears the burden of proving relocation will serve the children’s best interests. See 23 Pa.C.S.A. § 5337(i). Each party, however, has the burden of establishing “the integrity of that party’s motives in either seeking the relocation or seeking to prevent the relocation.” 23 Pa.C.S.A. 5337(i)(2). The court did not err in placing the burden on Mother to show that relocation was in the children’s best interests.

Benefits to children - The benefits to the children of Mother's proposed move are not exclusive to that area and do not outweigh the detrimental effect on Father’s time and relationship with the children. Further, Mother did not meet her burden of establishing the integrity of her reasons for leaving the current home area. As far as Father’s motives for opposing relocation, the parties do not dispute that he sought only to preserve his relationship with the children. He also sought to preserve the children’s relationship with his and Mother’s extended families. The record bears this out

Mother as primary caretaker – Mother viewed her primary caregiver role in a vacuum. As Mother acknowledged, she has had received considerable help from Father and from her stepmother, and readily conceded at trial that Father was a fit and caring parent, and capable of being primary custodian. Mother admitted that the children had a strong bond with Father and their families in Erie. Further, it is clear that Father has been a consistent and stable parental figure in the girls’ lives.  Substantial testimony showed it was possible for them to remain in the Erie area and spare the children emotional turmoil, and, if this were the case, Mother would remain primary custodian..

RFRA - 1st Amendment - free exercise - for-profit corporation

Conestoga Wood Specialties Corp. v. Secy. of HHS – 3d Cir. – July 26, 2013

http://www2.ca3.uscourts.gov/opinarch/131144p.pdf

Appellants Conestoga Wood Specialties Corporation , Norman Hahn, Elizabeth Hahn, Norman Lemar Hahn, Anthony Hahn, and Kevin Hahn appeal from an order of the District Court denying their motion for a preliminary injunction.

In their Complaint, Appellants allege that regulations promulgated by the Department of Health and Human Services, which require group health plans and health insurance issuers to provide coverage for contraceptives, violate the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb,  and the Free Exercise Clause of the First Amendment of the United States Constitution.

The District Court denied a preliminary injunction, concluding that Appellants were unlikely to succeed on the merits of their claims.  Appellants then filed an expedited motion for a stay pending appeal with this Court, which was denied.  Now, we consider the fully briefed appeal from the District Court‘s denial of a preliminary injunction.

Before we can even reach the merits of the First Amendment and RFRA claims, we must consider a threshold issue: whether a for-profit, secular corporation is able to 1 The Complaint also alleges that the regulations violate the Establishment Clause, the Free Speech Clause, the Due Process Clause, and the Administrative Procedure Act.

While the District Court‘s opinion addressed some of these additional claims, Appellants have limited their appeal to whether the regulations violate the RFRA and the Free Exercise Clause. engage in religious exercise under the Free Exercise Clause of the First Amendment and the RFRA.

As we conclude that forprofit, secular corporations cannot engage in religious exercise, we will affirm the order of the District Court.

 

immigration - City of Hazleton case - MD Pa. affirmed by 3d Cir.on remand from US SCt

Lozano et al. v.City of Hazleton – 3d Cir. – July 2013

http://www2.ca3.uscourts.gov/opinarch/073531p.pdf

OPINION OF THE COURT

__________
McKEE, Chief Judge.

This case is before us on remand from the United States Supreme Court. The City of Hazleton previously appealed the District Court‟s judgment permanently enjoining enforcement of two Hazleton ordinances that attempt to  prohibit employment of unauthorized aliens and preclude them from renting housing within the City.

 In a precedential Opinion and Judgment filed on September 9, 2010, we upheld the permanent injunction. Thereafter, the Supreme Court granted Hazleton‟s petition for a writ of certiorari and remanded this case so that we could reconsider our analysis in light of Chamber of Commerce v. Whiting, 563 U.S. __, 131 S. Ct. 1968 (2011). See City of Hazleton v. Lozano, 563 U.S. __, 131 S. Ct. 2958 (2011).

Subsequently, the Court also decided Arizona v. United States, 567 U.S. __, 132 S. Ct. 2492 (2012). Both Whiting and Arizona address the extent to which federal immigration law pre-empts various state laws pertaining to the treatment of unauthorized aliens. On remand, we asked for supplemental briefing on whether either of those decisions alter our original analysis upholding the District Court‟s injunction.

Having thoroughly considered the additional submissions of the parties and the Court‟s decisions in Whiting and Arizona, we again conclude that both the employment and housing provisions of the Hazleton ordinances are pre-empted by federal immigration law. Accordingly, we will again conclude that both the employment and housing provisions of the Hazleton ordinances are pre-empted by federal immigration law. Accordingly, we will again affirm the District Court‟s order enjoining enforcement of these provisions.

"Purely charitable organization" - affordable housing and counseling - evidence about other properties - institution as a whole

Alliance for Building Communities v. County of Lehigh Board of Assessment Appeals – Cmwlth. Court – July 22, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/1150CD12_7-22-13.pdf?cb=1

Alliance for Building Communities, Inc. (Taxpayer) appeals the order of the Court of Common Pleas of Lehigh County denying Taxpayer tax exempt status as an “institution of purely public charity” under Article VIII, Section 2(a)(v) of the Pennsylvania Constitution. The trial court affirmed the determination of the Lehigh County Board of Assessment Appeals that Taxpayer failed to establish that it qualified for an exemption as a purely public charity.

Taxpayer argues that the trial court erred by focusing only on Taxpayer’s operation of 20 rental properties it owns in Allentown rather than the charitable nature of Taxpayer’s entire organization. We agree and, therefore, vacate and remand.

______________________________

Taxpayer is a Pennsylvania non-profit corporation that is tax exempt under Section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. §501(c)(3); Taxpayer is also exempt from Pennsylvania sales and use tax. Its charitable mission is to provide affordable housing and counseling services to low-income persons. To that end, Taxpayer manages approximately 420 individual rental units, of which it owns 90 units. At issue in this case are 36 rental units on 20 real properties located in the City of Allentown. In July 2010, Taxpayer filed applications for real estate tax exemption for these 20 properties, and the Lehigh County Board of Assessment Appeals denied the applications. Taxpayer appealed to the trial court, which consolidated the 20 tax appeals.

Of the 20 properties at issue, 16 are leased to low-income tenants pursuant to a contract between Taxpayer and HUD under its Section 8 rental subsidy program. Those 16 properties contain 25 rental units. The other four properties, comprised of 11 rental units, are leased to mostly low or moderate income tenants at rents that are below market rates for the area.

In Hospital Utilization Project, 507 Pa. 1, 487 A.2d 1306, the Pennsylvania Supreme Court established a five-part test for determining whether an entity qualifies as a “purely public charity” under the Pennsylvania Constitution. The so-called HUP test provides:

[A]n entity qualifies as a purely public charity if it possesses the following characteristics.

(a) Advances a charitable purpose;
(b) Donates or renders gratuitously a substantial portion of its services;
(c) Benefits a substantial and indefinite class of persons who are legitimate subjects of charity;
(d) Relieves the government of some of its burden; and
(e) Operates entirely free from private profit motive.

Here, in applying the HUP test, the trial court committed the same error as the trial court in Alliance Home of Carlisle, PA v. Board of Assessment Appeals, 591 Pa. 436, 919 A.2d 206 (2007).  The trial court sustained the School District’s objection to the testimony of Taxpayer’s CEO about the other properties Taxpayer operates. This prevented Taxpayer from offering the necessary evidence on the institution as a whole. Because the trial court limited the testimony to the 20 Allentown properties, and did not make findings of fact or conclusions of law as to the entire institution, this Court cannot perform meaningful review. Couriers-Susquehanna, Inc. v. County of Dauphin, 645 A.2d 290, 294 (Pa. Cmwlth. 1994) (noting that trial court’s lack of critical finding of fact precluded this Court’s meaningful review).

For this reason, we vacate and remand this matter to the trial court to conduct further proceedings necessary to determine Taxpayer’s tax exempt status at the institutional level and then, if necessary, for a review of the 20 properties.

Contracts - 3d party beneficiary

McGaffic v. City of New Castle – Cmwlth. Court – July 22, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/396CD12_7-22-13.pdf?cb=1

Third-Party Beneficiary Law in Pennsylvania

The general rule is that a contract must express an intention to confer standing on a third-party beneficiary. Scarpitti v. Weborg, 530 Pa. 366, 370, 609 A.2d 147, 149 (1992). In Marsteller Community Water Authority v. P.J. Lehman Engineers, 605 A.2d 413 (Pa. Super. 1992), for example, it was held that a contract between a redevelopment authority and an engineering firm to upgrade a water system owned by a water authority expressed an intention to make the water authority a third-party beneficiary of the contract.9

9 What constitutes an “express intention” varies. In Johnson v. Pennsylvania National Insurance Companies, 527 Pa. 504, 594 A.2d 296 (1991), our Supreme Court held that a taxicab passenger was an intended third-party beneficiary of the taxicab owner’s insurance policy and, thus, bound by the policy’s requirement to arbitrate a claim for uninsured motorist benefits. Id. at 508, 594 A.2d at 298. The taxicab passenger was not named in the policy nor a party to the contract. In Keefer v. Lombardi, 376 Pa. 367, 102 A.2d 695 (1954), our Supreme Court found unnamed citizens and property owners to be third-party beneficiaries of a contract between a municipality and a contractor by which the contractor assumed liability for any damages caused by the construction. Id. at 369-70, 102 A.2d at 696. The Supreme Court found that “the drafters of the contract … include[d] as beneficiaries the inhabitants of the city for which they acted.” Id. at 372, 102 A.2d at 698. An express intention to create third-party beneficiaries does not require, even in the context of a government contract, that the beneficiaries be specifically named.

In Guy v. Liederbach, 501 Pa. 47, 59-60, 459 A.2d 744, 751 (1983), our Supreme Court adopted Section 302 of the Restatement (Second) of Contracts (1979), which allows a third-party to enforce a contractual promise even though the contract does not explicitly express that intention. Section 302 states:

Intended and Incidental Beneficiaries

(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either

(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or

(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary. 10

RESTATEMENT (SECOND) OF CONTRACTS §302 (1979) (emphasis added).

Our Supreme Court has explained that under Section 302 a party becomes a third party beneficiary only where ... the circumstances are so compelling that recognition of the beneficiary’s right is appropriate to effectuate the intention of the parties, and the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance....  Scarpitti, 530 Pa. at 372-73, 609 A.2d at 150-51 (emphasis added) (citations omitted). Stated otherwise, the “compelling circumstances,” or first prong, “sets forth a standing requirement,” and the second prong defines the type of claim to be presented by a third-party beneficiary. Id. at 371, 609 A.2d at 150. Notably, the named promisee’s inability or lack of incentive to enforce a contractual promise will support the third-party’s standing to enforce the promise. Id.

In sum, whether a contract contemplates enforcement by third-parties is a matter of contract construction. Parties may explicitly state that a contract provision is intended to create third-party beneficiary rights and identify, by name, the holder of those rights. Parties may explicitly state that a contract is not intended to create third-party beneficiary rights or identify the specific persons who do not hold these rights, as noted in Section 302(1) of the Restatement (Second) of Contracts. Most contracts are not explicit, and in that case the principles set forth in Section 302 are employed to ascertain the intention of the parties.

UC - drug testing - sec. 402 (e.1) - hearsay

Rutkowski v. UCBR – Cmwlth. Court – July 17, 2013 – unreported memorandum decision

http://www.pacourts.us/assets/opinions/Commonwealth/out/2199CD12_7-17-13.pdf?cb=1

The Court reversed the UCBR and held that claimant was not ineligible under 43 PS sec.  802(e.1), because the employer did not present evidence to qualify a drug testing report (Report) as a business record under 42 Pa. C.S. 6108(b).  Claimant objected to the Report as hearsay during the hearing.

Employer’s witnesses offered no testimony about the testing procedures followed by the Laboratory, such as the equipment used for the test, the testing process, the technician’s qualifications, quality control safeguards, the drug levels tested or the Laboratory’s accreditation. Rather, the witness simply stated that Claimant tested positive for marijuana, and that he was discharged based upon that test.

The Report, a one-page document, is not notarized or verified and contains no information relating to the Laboratory’s testing protocols, nor any statement as to the steps taken by the Laboratory to safeguard the samples. There is no evidence in the Report concerning the reliability of the oral testing method employed in this case, nor any information correlating the concentration of marijuana in the sample to the time elapsed since its ingestion. Put simply, the document does not contain enough indicia of reliability on its face to be admitted as an exception to the hearsay rule.

Employer did not provide sufficient information that would “justify a presumption of trustworthiness of the [Report]” and allow for it to be admitted as part of the record. Id. Without the Report, there was insufficient evidence to support the Board’s conclusion that Claimant failed the drug test.

________________________________________

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 - backdating claims - sickness/death of family member - 34 Pa. Code 65.43a

Falcone v. UCBR – Cmwlth. Court – July 9, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/2092CD12_7-9-13.pdf?cb=1

Claimant was entitlede to backdate his application and claim weeks by two weeks, because of the undisputed serious medical issues of three family members, as authorized by 34 Pa. Code sec. 65.43a (d) and (e), which state that "If a claimant fails to file a claim for compensation within the time allowed….for a reason listed in subsection (e), the time for filing the claim is extended for the number of weeks indicated in subsection (e). . . . .Sickness or death of a member of the claimant’s immediate family or an act of God….2 weeks."

The Court rejected the UCBR's argument and interpretation of the regulation that the sickness must have prevented the claimant from filing.

However, the Court rejected claimant's argument that he was entitled to 6 weeks of backdating under 34 Pa. Code sec. 65.43a (h), because that regulation required that the claimant i) have two or more of the listed reasons for backdating, and that ii)  those reasons did prevent claimant from filing in a timely manner.  In the instant case, there was no adequate proof that claimant was so prevented.

PTFA - no private right of action - 9th Cir.

In a case of first appellate impression, the Ninth Circuit issued a decision in Logan v. U.S. Bank, No. 10-55671, on July 16^th.  NHLP, joined by many HJN members, had filed an amicus brief in the case in support of the tenant's claim to an implied right under PTFA.

Affirming the dismissal of a complaint seeking damages and injunctive relief against a bank that filed an unlawful detainer action against the tenant in foreclosed property, the Ninth Circuit panel held that there is no private right of action under the Protecting Tenants at Foreclosure Act (PTFA) of 2009.

The court also held that, despite the bank’s voluntary dismissal of the unlawful detainer action, the appeal was not moot because the bank did not show that it was absolutely clear that the allegedly wrongful eviction could not reasonably be expected to recur.

Agreeing with the Third Circuit, the court also held that, contrary to the ruling of the District Court, abstention under Younger v. Harris, 401 U.S. 37 (1971), from the exercise of jurisdiction over the claim for injunctive relief was not warranted, because the state eviction action did not implicate important state interests. The decision emphasized that the mere involvement of traditionally state-oriented subject matter is not enough to show the implication of important state interests. Rather, Younger abstention also requires involvement of a state’s direct interest in the enforcement of its laws, or a question regarding the operation of the state judicial system itself. Since this was simply a “garden-variety” civil dispute between two private parties, neither concern was implicated.

The main holding was that the tenant did not have an implied right of action to affirmatively enforce the PTFA. In the court's view, the PTFA does not, either explicitly or by implication, evince a congressional intent to create a private right of action. This conclusion was based upon the language and structure of the statute, especially its focus on the obligations of the “successor in interest” as the regulated party, rather than on the rights of the tenant as beneficiary. Under the court's view, this weighed against a finding of “especial” benefit and an implied right. (This is surprising, in light of the fact that, despite the directives focused on the regulated party, tenants are the only beneficiaries of PTFA's notice and continued occupancy provisions.) Any significance of the title of the PTFA was dismissed as being insufficient to “control the plain meaning of [the] statute.” The panel also justified its conclusion by pointing to Congress' inclusion of an express right of action in another section of the overall Helping Families Save Their Homes Act (of which PTFA was one title), which had amended to Truth in Lending Act's notice requirements and its express right of action. For the court, this was evidence that Congress did not intend a private right of action for the PTFA. Finally, the court pointed to Senator Kerry’s statements emphasizing compliance by landlords and lenders as evidence of an intent to focus only the regulated party, finding nothing to support a right or remedy for tenants, as well as to Congress' silence on the right of action issue, in the face of a few adverse trial court opinions, when amending the PTFA in 2010. 

The court has thus relegated tenants to asserting PTFA as a defense in state court eviction proceedings, with any of the deficiencies of that trial and appellate process. (Indeed, Ms. Logan's pro se state court demurrer (motion to dismiss) in the eviction action had been overruled by the state court.)

attorney fees - offer of judgment - FRCivP 68

Interfaith Community Organization v. Honeywell Intl. – Third Circuit – July 9, 2013

http://www2.ca3.uscourts.gov/opinarch/113813p1.pdf

Offers of judgment pursuant to Fed. R. Civ. P. 68 may be made in the context of attorney‟s fee disputes under the provisions of a fee-shifting statute.

Footnote 7 has atty. fees charts for a) legal services and b) US Attorney.

UC - ability to work, suitable work - existing work v. other work

Anthony  v. UCBR – Cmwlth. Court – July 3, 2013 – unreported memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/2256CD12_7-3-13.pdf?cb=1

Claimant, a truck driver, held able to work and eligible for UC benefits, because

            - Employer did not introduce any evidence that Claimant’s high blood pressure or failure to pass the physical examination was caused by his conduct or inaction, and

            - No evidence was presented that Claimant suffered from any medical restriction other than high blood pressure or that he was restricted from any work that did not require driving.

The Board’s conclusion that Claimant was ineligible for benefits under Section 401(d)(1) of the UC Law, was unsupported by the record and contrary to law. Section 401(d)(1) requires only that the Claimant be “able to work and available for suitable work.” 43 P.S. § 801(d)(1). “Suitable work” is not limited to the particular type of job at which the claimant was previously employed. Rohde v. UCBR, 28 A.3d 237, 243 (Pa. Cmwlth. 2011); Hower & Son v. UCBR, 509 A.2d 1383, 1386 (Pa. Cmwlth. 1986); Davy v. UCBR, 392 A.2d 330, 332 (Pa. Cmwlth. 1978); see also Section 4(t) of the Unemployment Compensation Law, 43 P.S. § 753(t) (defining “Suitable Work” as “all work which the employe is capable of performing”). A claimant is “able to work and available for suitable work” under Section 401(d)(1) if he is capable of doing and available for some kind of paid work. Rohde, 28 A.3d at 243; Hower & Son, 509 A.2d at 1386; Davy, 392 A.2d at 332. “The law does not require that the employee be available for full-time work, for permanent work, for his most recent work, or for his customary job, so long as the claimant is ready, willing, and able to accept some suitable work.” Rohde, 28 A.3d at 243.

While the burden is on the claimant to prove availability for suitable work, Rohde, 28 A.3d at 243; Hower & Son, 509 A.2d at 1386, Claimant’s failure to appear at the Referee’s hearing did not prevent him from satisfying that burden.  

Claimant’s registration for unemployment compensation created a presumption that he is able to work and available for suitable work, and that presumption satisfies his burden of proof, unless it was rebutted by the evidence before the Board. Penn Hills School District v. UCBR, 496 Pa. 620, 625, 437 A.2d 1213, 1216 (1981); Rohde, 28 A.3d at 243; Hower & Son, 509 A.2d at 1386.

There was no evidence before the Board that suggested or would support any inference that Claimant had restricted the hours that he could work, that he was not seeking work or that he was disabled from working. The only evidence of any limitation on Claimant’s employability was that he had a level of high blood pressure that prevented him from obtaining a commercial driver’s license. This showed only that he could not work at his existing job as a truck driver or do other work that required driving. That is not sufficient to overcome the presumption that Claimant was able and available to work. The mere fact that a claimant has a medical condition that disables him from working at his prior job and other jobs requiring driving does not make him unable to work or unavailable for suitable work. Hower & Son, 509 A.2d at 1386 (claimant held eligible for benefits despite failure to appear at referee hearing because evidence that claimant suffered seizure and that doctor had restricted him from jobs requiring driving did not negate that he was able to work and available for suitable work).

_____________________________

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 - vol. quit - taking leave w/o following established protocol

Dike v. UCBR – Cmwlth. Court – June 18, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/1993CD12_6-18-13.pdf?cb=1

Claimant is not eligible under sec. 402(b) – vol. quit – where employer notified him that he had to follow an established procedure for requesting an excused absence for family reasons (funeral) and that if he did not, it would be considered a voluntary quit.  Claimant's conduct in taking the leave w/o following protocol when he was aware that it would result in termination evidenced an intention to voluntarily leave his work

UC - "substance abuse" include alcohol - UC Law sec. 402 (e.1)

Dillon v. UCBR – Cmwlth Court – June 18, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/786CD12_6-18-13.pdf?cb=1

Employer discharged Claimant fortesting positive for alcohol in violation of its substance abuse policy. Claimant petitions for review of an order of the UCBR that affirmed, as modified, the decision of a referee and denied him unemployment compensation benefits under Section 402(e) of the UC Law, the general willful misconduct provision, instead of Section 402(e.1),  the specific willful misconduct provision pertaining to an employee’s failure to submit to and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy.

By way of background, the UC Service Center and the referee initially determined Claimant’s eligibility for benefits under Section 402(e.1), but the Board on appeal remanded the matter to place Section 402(e) at issue, concluding that alcohol testing was outside the purview of Section 402(e.1).  Because Claimant’s eligibility should have been analyzed under Section 402(e.1), we conclude that the Board erred in remanding this matter. Nonetheless, we affirm its order denying Claimant benefits.

Claimant signed a last-chance agreement subjecting him to post-rehabilitation testing for twelve months and advising him that another positive BAC test would result in disciplinary action up to and including discharge from employment.  In September 2011, Claimant tested positive for a BAC in excess of 0.02%. The following month, Employer discharged him for violating its substance abuse policy.

The court reiterated its prior holdings that the proper provision under which to analyze discharges where an employee fails to submit to and/or pass a drug test is Section 402(e.1) and not Section 402(e). Architectural Testing, Inc. v. UCBR, 940 A.2d 1277, 1280-81 (Pa. Cmwlth. 2008); Turner v. UCBR, 899 A.2d 381, 384 (Pa. Cmwlth. 2006); UGI Utils., Inc. v. UCBR, 851 A.2d 240, 245 (Pa. Cmwlth. 2004). Most notably, in Brannigan v. UCBR, 887 A.2d 841 (Pa. Cmwlth. 2005), the Court analyzed an alcohol-related violation of a substance abuse policy under Section 402(e.1). Notwithstanding these previous decisions, however, the Board suggests that the legislature did not intend to include alcohol within the purview of Section 402(e.1) because it makes no specific reference to alcohol in that provision.  The court rejected that position.

Section 402(e.1) provides that that an employee shall be ineligible for compensation for any week

[i]n which his unemployment is due to discharge or temporary suspension from work due to failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy, provided that the drug test is not requested or implemented in violation of the law or of a collective bargaining agreement.

While it is true that the legislature did not include the word alcohol in Section 402(e.1), the court concluded that interpreting that provision to exclude alcohol would render an unreasonable result, fail to give effect to all of the words therein and fail to promote the public interest contrary to the edicts of Sections 1922(1), (2) and (5) of the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1922(1), (2) and (5).   Interpreting Section 402(e.1) to exclude alcohol would render an unreasonable result because many employers when crafting their substance abuse policies equate alcohol with drugs as a substance that employees can abuse to the detriment of other employees, the company and the public at large.  Giving effect to all of the words in Section 402(e.1), including the phrase “substance abuse,” the court concluded that the legislature intended to include alcohol as a substance that is subject to abuse within the meaning of that provision. 1 Pa. C.S. § 1922(2) (presumption that legislature intends entire statute to be effective and certain).

The record supports the Board’s finding that Employer had an established substance abuse policy and that, pursuant thereto, Claimant was operating under a last-chance agreement. Specifically at issue, therefore, is whether Employer proved that Claimant violated that policy.  The court found that that Employer met its burden.

Housing - Sec. 8 - possession of drug paraphernalia is not "drug-related criminal activity"

Degelman v. Housing Authority of City of Pittsburgh – Cmwlth. Court – June 10, 2013

 http://www.pacourts.us/assets/opinions/Commonwealth/out/2018CD12_6-10-13.pdf?cb=1

 The Housing Authority of the City of Pittsburgh (Housing Authority) appealed from the September 28, 2012, order of the Court of Common Pleas of Allegheny County, which reversed the decision of a hearing officer terminating Sharon Degelman’s housing assistance benefits received pursuant to Section 8 of the United States Housing Act of 1937 (Act), as amended, 42 U.S.C. §1437f, because the hearing officer capriciously disregarded substantial evidence.  The Commonwealth Court affirmed, but on different grounds – because possession of drug paraphernalia is not "drug-related criminal activity." 

 On April 6, 2008, a police officer searched Degelman’s apartment pursuant to a search warrant. The search yielded six empty heroin stamp bags, a rubber tie band, nine cotton balls, two crack pipes, and used hypodermic needles. Degelman pled guilty to a charge of disorderly conduct.

 On May 1, 2008, the Housing Authority issued a notice to Degelman terminating her housing assistance benefits pursuant to 24 C.F.R. §982.553(b)(1)(ii) because she had engaged in drug-related criminal activity in violation of 24 C.F.R. §982.551(l). Degelman requested an informal grievance hearing.

In Romagna v. Housing Authority of Indiana County (Pa. Cmwlth., No. 1648 C.D. 2011, July 13, 2012), not reported in A.3d, 2012 WL 3026386, the court summarized the applicable federal regulations and determined that possession of drug paraphernalia is not “drug-related criminal activity.” In Romagna, the court stated that [t]he Housing Authority’s definition of drug-related criminal activity does not specify that drug paraphernalia is “drug-related.” Nor does it use language broad enough to sweep possession of paraphernalia into the phrase “drug-related criminal activity.” In Romagna v. Housing Authority of Indiana County), the court summarized the applicable federal regulations and determined that possession of drug paraphernalia is not “drug-relate

Here, a dispute exists about the extent of drug paraphernalia found at the property and whether the drug paraphernalia belonged to Degelman or was left behind by intruders. However, under the applicable federal regulations, a “drug-related criminal activity” requires the actual use or possession of a drug, not drug paraphernalia. Thus, a disorderly conduct conviction related to drug paraphernalia being found at the Property provides insufficient cause to terminate Degelman’s housing assistance benefits under 24 C.F.R. §982.553(b)(1)(iii). Given our determination, we need not address the Housing Authority’s contention that the trial court erroneously applied the capricious disregard standard.

Open Records - DPW

Barnett v. DPW -  Cmwlth. Court – June 12, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/1697CD12_6-12-13.pdf?cb=1

Requester filed the Request with DPW seeking access to information about data on phone calls to the County Assistance Office(s), Statewide Customer Service Center(s) or the Philadelphia Customer Service Center, including but not limited to, caller wait times, calls answered, calls unanswered due to system overflow, calls not able to be placed into a queue, and calls rerouted…and similar information.

Our Supreme Court recently reaffirmed its holding “that the objective of the RTKL ‘is to empower citizens by affording them access to information concerning the activities of their government.’” Levy v. Senate of Pennsylvania, ___ Pa. ___, ___, ___ A.3d ___, ___ (No. 44 MAP 2012, filed April 24, 2013), slip op. at 32.  (quoting SWB Yankees LLC v. Wintermantel, ___ Pa. ___, ___, 45 A.3d 1029, 1042 (2012)). Our Supreme Court has also held that the significant changes to the RTKL enacted in 2008 “demonstrate a legislative purpose of expanded government transparency through public access to documents.” Id. at ___, ___ A.3d at ___, slip op. at 33. “[C]ourts should liberally construe the RTKL to effectuate its purpose of promoting ‘access to official government information in order to prohibit secrets, scrutinize actions of public officials, and make public officials accountable for their actions.’” Id. (quoting Allegheny County Department of Administrative Services v. A Second Chance, Inc., 13 A.3d 1025, 1034 (Pa. Cmwlth. 2011) (citation omitted)).

Among the sections of the RTKL that have been cited “as supporting a legislative intent for broader public access” is the section at issue in this matter, Section 1101(a), 65 P.S. § 67.1101(a), which authorizes a requester to appeal an agency denial to the OOR.  Section 1101(a)(1) provides that, if “a written request for access to a record is denied or deemed denied, the requester may file an appeal with the [OOR] . . . within 15 business days.” 65 P.S. § 67.1101(a)(1). “The appeal shall state the grounds upon which the requester asserts that the record is a public record . . . and shall address any grounds stated by the agency for . . . denying the request.” Id. (emphasis added).

In Department of Corrections, this Court examined “the clear and unambiguous language chosen by the General Assembly in Section 1101(a) of the RTKL” and held that it is “statutorily required that a requester specify in [an] appeal to [OOR] the particular defects in an agency’s stated reasons for denying a RTKL request.”6 Department of Corrections, 18 A.3d at 434. We held further that “[b]y concluding that this requirement is mandatory we are not requiring a requester to prove anything; the provision merely places a burden on a requester to identify flaws in an agency’s decision denying a request.” Id. (emphasis in original).

With the foregoing in mind, we now turn to the issue of whether Requester’s written OOR Appeal in this case is deficient for failing to address grounds stated by DPW for denying Requester’s RTKL Request.  The OOR erred by summarily dismissing Requester’s OOR Appeal on the basis that it did not address DPW’s reasons for denying the Request. As shown by Requester’s OOR Appeal does address the reasons given by DPW in denying his RTKL Request, and includes his arguments as to why those reasons are flawed.. . . Although Requester does not discuss any specific subsections of Section 708(b) of the RTKL, this does not render the OOR Appeal deficient. Requester’s statement in his OOR Appeal that the records are public records that “do not qualify for any exemptions under [S]ection 708, are not protected by privilege, and are not exempted under any Federal or State law or regulation,” is sufficient under these circumstances. (OOR Appeal at 2, R.R. at 2a.)

Requester also adequately challenges DPW’s conclusion that the information sought does not fall within the meaning of the RTKL’s definition of “aggregated data.” Requester alleges that the “ticket reports” he seeks are a compilation of information contained in the “trouble tickets,” and that the records are not client-specific but, instead, constitute “aggregated data.”  To the extent Requester is correct, the omission of any discussion of the legal authorities set forth in Attachment A to DPW’s Response, which describe exemptions for individuals’ information, rather than aggregated data, does not render his OOR Appeal deficient.

Finally, Requester’s failure to address DPW’s “Omnibus Responses” or the various state and federal statutes or regulations listed in DPW’s Response to paragraph 1 of the Request does not render Requester’s OOR Appeal deficient. DPW included the “Omnibus Responses” and these other legal authorities because this Court “has held that, if an agency fails to raise a defense in its final response letter, the agency has waived its opportunity to do so and is barred from raising a new defense at the time of an appeal.”  As DPW only included its “Omnibus Responses” and these additional legal authorities as a precaution against waiver, we will not deem Requester’s OOR Appeal deficient for not addressing these precautionary grounds for denial. To hold otherwise would thwart the mandate that we are to liberally construe the RTKL in order to effectuate its purpose. Levy, ___ at ___, ___ A.3d at ___, slip op. at 33.

Accordingly, we vacate the OOR’s August 7, 2012 Final Determination and remand this matter to the OOR to consider Requester’s appeal and DPW’s reasons for denying Requester’s RTKL Request.

admin. law - appeal - agency duty to provide info. to calculate appeal period

Schmader v. Cranberry Township – Cmwlth. Cour – June 7, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/1576CD12_6-7-13.pdf?cb=1

When the appeal period is triggered by administrative action, the administrative agency has a duty to provide to the recipient information essential to calculating the appeal period. See Schmidt v. Commonwealth, 495 Pa. 238, 241, 433 A.2d 456, 458 (1981). Without such information, the recipient has no reliable basis for knowing the number of days remaining in which to file a petition for review. Id.

In Schmidt, the Pennsylvania Supreme Court found that, under the applicable statute, the department had a duty to inform the taxpayer of the mailing date of its reassessment decision because, without such information, the taxpayer had no way of knowing how much time he had to file an appeal. 495 Pa. 238, 242, 433 A.2d 456, 458. The Supreme Court held that the first notice was inadequate to trigger the appeal period, and found the appeal to be timely since the Department’s failure to provide the requisite notice of the decision’s mailing date justified the taxpayer’s reliance on the date of the second notice of reassessment as the commencement of the period for appeal. Id. The Supreme Court rejected the contention that a postmark on an envelope carrying an agency decision could serve as notice of the date of mailing. Id.

The Schmidt line of cases remains viable and is controlling here. Because of the Board’s failure, Appellant was justified in filing his appeal within 30 days of receipt of the Board’s decision.

sec. 1983 - special relationship - school liability for student abuse/bullying

Morrow v. Belaski – 3d Cir. – June 5, 2013

 http://www.ca3.uscourts.gov/opinarch/112000p.pdf

 As is so often the case, the issues in this appeal arise from unsettling facts presented by sympathetic plaintiffs.1 We are asked to decide whether public schools have a constitutional duty to protect students from abuse inflicted by fellow students under the circumstances alleged here.

Appellants, Brittany and Emily Morrow, and their parents, Bradley and Diedre Morrow, brought this action against Blackhawk School District and Blackhawk High School‟s Assistant Principal, Barry Balaski.    The Morrows claim that Brittany and her sister Emily were subjected to bullying in the form of a series of threats, assaults, and acts of racial intimidation at the hands of a fellow student and her accomplice. Unable to obtain help from school officials, the Morrows were ultimately compelled to remove their children from their school. Thereafter, the Morrows brought suit alleging that school officials denied them substantive due process under the Fourteenth Amendment by not protecting Brittany and Emily. The Third Amended Complaint (the “Complaint”) asserted a cause of action under 42 U.S.C. § 1983 and a supplemental state law claim for “negligence and/or gross or willful misconduct.”

The District Court dismissed the Complaint based on our decision in D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992) (en banc). There, we concluded that the school did not have a “special relationship” with students that would give rise to a constitutional duty to protect them from harm from other students given the alleged facts. See id. at 1372 (finding that “no special relationship based upon a restraint of liberty exists here”). The District Court also held that the injury the Morrows complained of was not the result of any affirmative action by the Defendants. Accordingly, the court held that the Defendants are not liable under the “state-created danger” doctrine. The District Court therefore dismissed the Morrows‟ Complaint, and this appeal followed. The appeal was initially argued before a panel of this Court. Thereafter, we granted en banc review to reexamine the very important questions raised by the allegations in the Complaint.

We now affirm the judgment of the District Court and hold that the allegations do not establish the special relationship or the state-created danger that must exist before a constitutional duty to protect arises under the Fourteenth Amendment.

Appeals - PRAP 1114 - Standard governing allowance of appeals

Pa. Supreme Court – June 3, 2013

 

http://www.pacourts.us/assets/opinions/Supreme/out/231aplt-attach.pdf?cb=1

 

 

Rule 1114. [Considerations] Standards Governing Allowance of Appeal.

 

(a) General Rule. Except as prescribed in [Rule] Pa.R.A.P. 1101 (appeals as of right from the Commonwealth Court), review of a final order of the Superior Court or the Commonwealth Court is not a matter of right, but of sound judicial discretion, and an appeal will be allowed only when there are special and important reasons therefor.

 

(b) Standards. A petition for allowance of appeal may be granted for any of the following reasons:

 

(1) the holding of the intermediate appellate court conflicts with another intermediate appellate court opinion;

(2) the holding of the intermediate appellate court conflicts with a holdinof the Pennsylvania Supreme Court or the United States Supreme Court on the same legal question;

(3) the question presented is one of first impression;

(4) the question presented is one of such substantial public importance as to require prompt and definitive resolution by the Pennsylvania Supreme Court;

(5) the issue involves the constitutionality of a statute of the Commonwealth;

(6) the intermediate appellate court has so far departed from accepted judicial practices or so abused its discretion as to call for the exercise of the Pennsylvania Supreme Court’s supervisory authority; or

(7) the intermediate appellate court has erroneously entered an order quashing or dismissing an appeal.

 

 

Official Note

The petition for allowance of appeal is synonymous with a petition for allocatur. Pa.R.A.P. 1114(b)(7) supersedes the practice described in Vaccone v. Syken, 587 Pa. 380, 384 n.2, 899 A.2d 1103, 1106 n.2 (2006). [Based in part on U.S. Supreme Court Rule 10. The following, while neither controlling nor fully measuring the discretion of the Supreme Court, indicate the character of the reasons which will be considered:

(1) the holding of the intermediate appellate court conflicts with another

intermediate appellate court opinion;

(2) the holding of the intermediate appellate court conflicts with a holding

of the Pennsylvania Supreme Court or the United States Supreme Court on the

same legal question;

(3) the question presented is one of first impression;

2

(4) the question presented is of such substantial public importance as to

require prompt and definitive resolution by the Pennsylvania Supreme Court;

(5) the issue involves the constitutionality of a statute of this

Commonwealth;

(6) the intermediate appellate court has so far departed from accepted

judicial practices or so abused its discretion as to call for the exercise of the

Pennsylvania Supreme Court’s supervisory authority; or

(7) an intermediate appellate court has erroneously entered an order

quashing or dismissing an appeal.

Prior to the 2011 amendment to the Official Note to this Rule, the procedural

mechanism to seek the Pennsylvania Supreme Court’s review of an intermediate

appellate court order quashing or dismissing an appeal was by petition for

review. See Vaccone v. Syken, 587 Pa. 380, 382 n.2, 899 A.2d 1103, 1104 n.2

(2006). The current amendments now provide that such appeals should be

pursued by the petition for allowance of appeal process. The 2011 amendment

adds Reason (7) to the Official Note, which provides a basis for seeking review of

intermediate appellate court quashals and dismissals through the Chapter 11

petition for allowance of appeal procedure, rather than the Chapter 15 petition for

review procedure.]

Rule 1702. Stay Ancillary to Appeal

* * * * *

[(d) Stay of execution.—When a trial court enters an order granting or denying a

stay of execution in a capital case, such order may be reviewed by the Supreme

Court upon application pursuant to Rule 123. No appeal or petition for review

need be filed in connection with an application for review of a stay order in a

capital case.]

* * * * *

 

[This is an entirely new rule.]

Rule 1704. Application in a Capital Case for a Stay of Execution or for Review of

an Order Granting or Denying a Stay of Execution.

Prior notice of the intent to file an application in a capital case for a stay or review

of an order granting or denying a stay of execution shall be provided to the Prothonotary

of the Pennsylvania Supreme Court, if prior notice is practicable.

The application for stay or review shall set forth the following:

1. The date the warrant issued; the date and nature of the order that

prompted the issuance of the warrant; and the date the execution is scheduled, if a date

has been set;

2. Whether any direct or collateral challenges to the underlying conviction

are pending, and, if so, in what court(s) or tribunal(s);

3. Whether any other applications for a stay of the pending execution have

been filed, and, if so, in what court(s) or tribunal(s), when, and the status of the

application(s);

4. The grounds for relief and the showing made to the trial court of

entitlement to a stay under 42 Pa.C.S. § 9545(c), if applicable;

5. A statement certifying that emergency action is required and setting forth a

description of the emergency.

All dockets, pleadings, and orders that are referred to in 1-5 above must be

attached to the application. If any of the information provided in the application changes

while the motion is pending, the party seeking the stay or review must file with the

Pennsylvania Supreme Court written notice of the change within 24 hours.

No notice of appeal or petition for review needs to be filed in order to file an

application under this rule.

Rule 3316. Review of Stay of Execution Orders in Capital Cases.

When a trial court has entered an order granting or denying a stay of execution in

a capital case, such order may be reviewed by the Supreme Court in the manner

prescribed in [Rule 1702(d)] Pa.R.A.P. 1704.

* * * *

4

[This is an entirely new rule.]

Rule 3341. Petitions for Certification of Questions of Pennsylvania Law

(a) General Rule.—On the motion of a party or sua sponte, any of the following courts

may file a petition for certification with the Prothonotary of the Supreme Court:

(1) The United States Supreme Court; or

(2) Any United States Court of Appeals.

(b) Content of the Petition for Certification.—A petition for certification need not be

set forth in numbered paragraphs in the manner of a pleading, and shall contain the

following (which shall, insofar as practicable, be set forth in the order stated):

(1) A brief statement of the nature and stage of the proceedings in the petitioning

court;

(2) A brief statement of the material facts of the case;

(3) A statement of the question or questions of Pennsylvania law to be determined;

(4) A statement of the particular reasons why the Supreme Court should accept

certification; and

(5) A recommendation about which party should be designated Appellant and

which Appellee in subsequent pleadings filed with the Supreme Court.

There shall be appended to the petition for certification copies of any papers filed by

the parties regarding certification, e.g., a motion for certification, a response thereto, a

stipulation of facts, etc.

(c) Standards.—The Supreme Court shall not accept certification unless all facts

material to the question of law to be determined are undisputed, and the question of law is

one that the petitioning court has not previously decided. The Supreme Court may accept

certification of a question of Pennsylvania law only where there are special and important

reasons therefor, including, but not limited to, any of the following:

(1) The question of law is one of first impression and is of such substantial public

importance as to require prompt and definitive resolution by the Supreme Court;

(2) The question of law is one with respect to which there are conflicting decisions

in other courts; or

(3) The question of law concerns an unsettled issue of the constitutionality,

construction, or application of a statute of this Commonwealth.