UC - notice of issues

Bat Conservation and Mgmt v. UCBR – Cmwlth. Court – en banc – reported – 6-8-23

 

Case remanded for new remand hearing on issue on which employer did not receive express notice – retaliatory termination rather than disparate treatment, for which the proof and issues are different.

 

Disparate treatment -   Disparate treatment is an affirmative defense by which a claimant who has engaged in willful misconduct may still receive [UC] benefits if [she] can make an initial showing that: (1) the employer discharged claimant, but did not discharge other employees who engaged in similar conduct; (2) the claimant was similarly situated to the other employees who were not discharged; and (3) the employer discharged the claimant based upon an improper criterion. Once the claimant has made this showing, the burden then shifts to the employer to show that it had a proper purpose for discharging the claimant.  Geisinger Health Plan v. UCBR, 964 A.2d 970, 974 (Pa. Cmwlth. 2009).

Retaliatory termination  --  In order to prove a prima facie case of retaliation, a complainant must show that: 1) [she] was engaged in a protected activity; 2) [her] employer was aware of the protected activity; 3) subsequent to participation in the protected activity, [she] was subjected to an adverse employment action; and[] 4) there is a causal connection between [her] participation in the protected activity and the adverse employment action. Spanish Council of York v. Pa. Hum[.] Rel[s.] Comm’n, 879 A.2d 391, 399 (Pa. Cmwlth. 2005). Upon showing a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973)). Finally, the burden shifts back to the complainant to show that the employer’s proffered reasons are pretextual. Id.  Uber v. Slippery Rock Univ. of Pa., 887 A.2d 362, 367 (Pa. Cmwlth. 2005). Employer argues it was not prepared to meet its shifting burden on remand because it had no notice that it would have to defend itself against a retaliation claim. The UCBR rejoins that the necessary notice was supplied by the 

 

PFA - past abuse relevant to present fear

B.K.P. v. J.R.B. – Pa. Superior – 9-25-23 – re4ported

https://www.pacourts.us/assets/opinions/Superior/out/J-S24002-23o%20-%20105680648240318046.pdf?cb=1

 

https://casetext.com/case/bkp-v-jrb

 

Held: Three-year protection order properly entered where

• Physical abuse occurred less than 2 years prior to current petition
• Prior physical abuse was a single incident which the court, in prior litigated PFA case, held to be “brutal....sexual assault”
• Current defendant conduct consisted of stalking

 

Citing E.K. v. J.R.A., 237 A.3d 509, 519 (Pa. Super. 2020), the court held that “[p]ast are significant in determining the reasonableness of a PFA petitioner’s fear.”

UC - voluntary quit - claimant had good cause to quit her job

Crane v. UCBR – Cmwlth. Court – 8-15-23 – unreported memorandum opinion**

N.B. Claimant was represented by North Penn Legal Services.  Well done !

 

 

Held: Claimant had good cause to quit her job, after 16 years as an aide to special needs children, where the school district denied her request for a leave of absence w/o pay.  Claimant decided to stay at home to care for her suicidal daughter, who attended school every other day but who, when at home, needed to have an adult present to keep her safe.

 

A claimant who voluntarily quits bears the burden of proving necessitous and compelling cause for leaving her job. Brunswick Hotel & Conf. Ctr., LLC v. UCBR., 906 A.2d 657 (Pa. Cmwlth. 2006). Specifically, a claimant must establish that “(1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and (4) the claimant made a reasonable effort to preserve her employment.” Id. at 660. A determination as to whether necessitous and compelling cause for leaving employment exists is a question of law, subject to plenary review by the court., 

 

No substantial evidence for two of UCBR findings – 

The court held that there was no substantial evidence to support the Board’s findings on two critical issues

- Claimant informing the school that her daughter had suicidal tendences and could not stay at home alone

- Claimant informing school that she was willing to work every other day, in accordance with her daughter’s school schedule

Claimant’s evidence on these points was clean and undisputed, even looking at the evidence in the light most favorable to the school. 

 

FMLA – Claimant’s leave request was tantamount to a request under FMLA – Family and Medical Leave Act

In Eshbach v. UCBR, 855 A.2d 943, 949 (Pa. Cmwlth. 2004), the court held that a claimant must notify the employer that leave is necessary to care for a serious medical condition but he or she need not expressly request FMLA leave in order to trigger an employer’s obligation. Id. at 948. In other words, an employer’s obligation is triggered when it acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason.  Here, Employer did not contradict Claimant’s testimony that she informed the Superintendent of the daughter’s needs thereby providing Employer with sufficient information to trigger its obligation, at a minimum, to make further inquiries of her regarding purported grounds for eligibility under the FMLA. Consequently, Claimant made reasonable efforts to preserve her employment by way of a request for unpaid leave and/or via her query as to whether there was anything she could do in order to remain employed. Employer is not an unsophisticated employer, it had unfettered access to the daughter’s confidential records, and Claimant had worked there for sixteen years. 

Accordingly, the court held that Claimant met her burden of proving that she had necessitous and compelling cause for her voluntary quit and, therefore, reversed the decision of the UCBR.

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 

 

consumer protection - no misrepresentation by omission - no affirmative duty to disclose

Halpern v. Ricoh USA – Pa. Super. 87-28-23

https://www.pacourts.us/assets/opinions/Superior/out/J-S20016-23o%20-%20105619038233953299.pdf?cb=1

 

Held: Deception by omission only actionable if there is an affirmative duty to disclose a defect in a good or service, following Romeo v. Pittsburgh Associates, 787 A.2d 1027 (Pa. Super. 2001), even though the court criticized Romeo. 

 

The court stated in n. 5:

At best, this Court’s CPL analysis in Romeo v. Pittsburgh Assocs., 787 A.2d 1027, 1033 (Pa. Super. 2001), is sparse. The panel did not review the statute’s language, its legislative history, or similarly worded statutes from our Sister States or the Federal Government. See, e.g., Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 745 (N.Y. 1995) (allowing plaintiff’s nondisclosure theory to proceed to trial under New York’s statutory equivalent of the CPL, “where the business alone possesses material information that is relevant to the consumer and fails to provide this information” without relying upon common-law duty to disclose); see also, Kyszenia v. Ricoh USA, Inc., 583 F. Supp. 3d 350, 360 (E.D.N.Y. 2022) (holding that a complaint nearly identical to Buyer’s amended complaint stated a claim against Ricoh for selling similarly defective Pentax cameras under the New York statute but dismissing action as time barred). Moreover, the Romeo court offered no explanation as to how a common-law duty to disclose (or lack thereof) could override the statutory mandates of the CPL. Presumably, the General Assembly adopted the remedial CPL to remove the old strictures of common-law pleading and proof from the law of consumer transactions. Romeo’s holding may have undermined that legislative goal. 

Still, “it is beyond the power of a Superior Court panel to overrule a prior decision of the Superior Court, except in circumstances where intervening authority by our Supreme Court calls into question a previous decision of this Court.” Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006). We know of no such intervening pronouncement. Nor do we think, as Buyer contends in his brief and reply brief, that Gregg v. Ameriprise Fin., Inc., 245 A.3d 637, 646 (Pa. 2021), did so. There, the question was what level of intent a vendor must have to violate the CPL-catch-all provision, not whether a common-law duty to disclose is a prerequisite to rendering a vendor’s nondisclosure actionable. The High Court held that no proof of mental state is required; thus, the catch-all provision imposes strict liablity. Buyer seems to conflate strict liablity (i.e., liablity without fault) with passive nondisclosure. An affirmative false statement and a deceptive nondisclosure may both be made intentionally (fraud), negligently (misrepresentation), or with the utmost care (strict liability). Thus, Gregg’s holding regarding strict liability under the catch-all provision did not overrule Romeo sub silentio. 

Because there were no allegations in the complaint that established a common-law duty by Ricoh to disclose the defect in the Pentax camera to Buyer, under Romeo, Buyer failed to state a claim that Ricoh violated the catch-all provision of the CPL by its silence regarding the defective camera. The trial court correctly held that he did not satisfy the third prong of a CPL action, as the test is articulated in Gregg, supra, albeit for an incorrect reason. 

 

 

public utilities - sale to private company rejected - no benefit to public shown

This case was litigated by the office of the state consumer advocate, Patrick Cicero.  Well, done, Patrick! Here’s the story, as reported by WHYY.  https://whyy.org/articles/pa-court-puc-east-whiteland-sewer-sale-aqua/

 

Here’s the link to the decision 

 

P. Cicero v. PUC –  Pa. Cmwlth. – July 31, 2023 – reported, precedential decision

https://www.pacourts.us/assets/opinions/Commonwealth/out/910CD22_7-31-23.pdf?cb=1

 

Here’s what Patrick had to say about the decision:

 

• The Court correctly recognized that the Section 1329 of the Public Utility Code deals solely with the ratemaking rate base valuation of a system if and only if the application is approved and that it is not a short cut to approval.  Specifically, it correctly recognized that nothing in Section 1329 altered the requirements of Section 1102 and 1103 of the Public Utility Code that require a specific, fact-based showing that the acquisition provides an affirmative public benefit.  The Court unequivocally set out that in every 1329 case, the determination of an affirmative public benefit must be rooted in facts that are specific to the transaction and outweigh the harms of the transaction.  This requires the PUC to conduct a fact-based evaluation and balancing such that any approval must demonstrate that the public is better off – on net – because of the transaction than it would be in the absence of the transaction.  

 

• The Court correctly rejected the Commission and Aqua’s argument that Aqua’s technical and legal fitness was, in the abstract, an affirmative public benefit.

 

• The Court also appropriately clarified that while aspirational benefits can be considered, they must be rooted in the facts that are specific to the transaction in question and not general in nature or result from the technical or legal fitness of the buyer.

 

 

Here is a proposed quote from me:

 

“The Commonwealth Court provided unequivocal clarity that the Public Utility Commission must do more than rubber stamp water and wastewater acquisitions brought pursuant to Section 1329 of the Public Utility Code.  It correctly found that the PUC must conduct a fact-based evaluation pursuant to Section 1102 and 1103 which sections require the PUC to only approve acquisitions where the public is affirmatively better off – on net – because of the transaction than it would be in the absence of the transaction.  The OCA takes seriously the requirement that each case must be dealt with on its facts.  The Court correctly recognized the limits of Section 1329 as simply a means of determining the value of an acquired system that forms the basis of rates if the application is approved, but that at the same time the rate impact of the proposed acquisition at the higher costs allowed by Section 1329 is an important factor in determining whether there are affirmative public benefits. This means that each transaction must stand alone and provide affirmative benefit to the public before the PUC can approve the sale.”      

 

 

 

 

employment - natural hair braiding - licensure requirement unconstitutional

Thiam d/b/a Rama Hair Braiding Salon v. Bureau of Professional and Occupational Affairs

Pa.  Cmwlth Court – 7-25-23

Unreported memorandum opinion** 

 

Held:   “[W]e hold that  Petitioner has presented sufficient evidence to establish that the Law’s limited license requirements set forth in Section 5(b)(3)(i) are unconstitutional as applied to her as they are violative of Petitioner’s constitutional right to pursue her chosen occupation under article I, section 1 of the Pennsylvania Constitution. 

While it may be reasonable for the Legislature to regulate the natural hair braiding industry, the requirement for 300 hours of training and an examination in English to ensure Petitioner, who has practiced the art of natural braiding for most of her life, is properly trained in basic areas like sanitation, anatomy, and scalp care and possesses the cognitive and manipulative skills necessary to braid hair is unduly burdensome. 

Petitioner and Dr. Edi testified regarding the difficulty Petitioner and others in the Philadelphia area face in finding a school to meet the Law’s requirements, which  will make it nearly impossible for Petitioner to hire licensed natural hair braiders to operate the Salon. They also spoke of the costliness of such training and the unavailability of accommodations to address Petitioner’s language barrier. Moreover, the Law is not reasonably related to protecting the safety and health of patrons of the Salon, where Petitioner uses no chemicals, dyes, or heat, and she has been practicing her craft for most of her life without complaint. Nixon, 839 A.2d at 287; Gambone, 101 A.2d at 637. For these reasons, we reverse the Board’s March 8, 2022 Order.

++++++++++++

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 Editor’s note:  Someone should move for this opinion  to be reported.  I have sample petitions.

 

 

 

LT - self-help eviction - injunction - immediate and irreparable harm

A commercial tenant that was evicted by self-help measures is entitled to a preliminary injunction restoring possession because (1) the Landlord-Tenant Act provides the “complete and exclusive system in itself” to obtain the eviction of tenants and (2) the loss of a leasehold interest in real estate constitutes irreparable harm.  Fraport Pittsburgh v. Allegheny County Airport Authority, No. 974 WDA 2022 (Pa. Super. May 9, 2023)

From the opinion---

The trial court found that evidence demonstrating all the elements of a preliminary injunction was shown except for the first element requiring “immediate and irreparable harm [defined as] injury for which damages can only be estimated by conjecture and not by an accurate pecuniary standard or cannot be adequately compensated by an award of monetary damages.” City of Allentown v. Lehigh Cnty. Auth., 222 A.3d 1152, 1160 (Pa. Super. 2019) . . . . “In order to meet this burden, a plaintiff must present concrete evidence demonstrating actual proof of irreparable harm.” Id. (citation omitted). 

Where there is a real property interest, the loss of that interest constitutes irreparable harm because each parcel of  real estate is unique. See Peters v. Davis, 231 A.2d 748 (Pa. 1967), stating: 

The aggrieved property owner’s right is absolute. However hard his acts might be regarded; he asks the court for the enforcement of a legal right of a positive character with respect to land which it is conceded was wrongfully taken from him. He is  entitled to a decree. The rule in such a case is founded on sound reason. If damages may be substituted for the land, it will amount  to an open invitation to those so inclined to follow a similar course and thus secure valuable property rights. The amount of land involved does not change the situation. Here is a wrongful invasion of a positive right to real property. If a property owner deliberately and intentionally violates a valid express restriction running with the land or intentionally ‘takes a chance’, the appropriate remedy is a mandatory injunction to eradicate the violation. 

Id. at 752 (citation omitted).

Our Supreme Court has also held that, “In light of the unique and intrinsic value of land, interference with the plaintiff’s contractual rights to ownership of that land must be deemed irreparable harm.” New Eastwick Corp. v. Philadelphia Builders Eastwick Corp., 241 A.2d 766, 770 (Pa. 1968). Additionally, regarding possession of a leasehold interest, “[t]here is substantial common-law authority that the leasing of property is identical to  the sale of the premises.” Com., by Creamer v. Monumental Properties, Inc., 329 A.2d 812, 822 (Pa. 1974) (citation omitted). 

 

LT - self-help eviction is not allowed

A commercial tenant that was evicted by self-help measures is entitled to a preliminary injunction restoring possession because (1) the Landlord-Tenant Act provides the “complete and exclusive system in itself” to obtain the eviction of tenants and (2) the loss of a leasehold interest in real estate constitutes irreparable harm.  Fraport Pittsburgh v. Allegheny County Airport Authority, No. 974 WDA 2022 (Pa. Super. May 9, 2023).

 

Thank you Brandon Copeland for bringing this case to my attention.

 

“Not only should a preliminary injunction be issued because money

damages cannot compensate Fraport for loss of its leasehold interest, but it

was also an error for the trial court not to issue a preliminary injunction due

to ACAA’s self-help by the improper use of the Allegheny County Police to

advance its commercial interests to evict Fraport.

 

Because a landlord/tenant relationship existed, ACAA was required to

utilize the procedures set forth in the Landlord Tenant Act of 19519

to lawfully evict10 Fraport. The Landlord Tenant Act is a comprehensive regulatory

scheme governing the landlord and tenant relationship. See Stonehedge

Square Ltd. P'ship v. Movie Merchants, Inc., 715 A.2d 1082, 1085 (Pa.

1998). It “sets up the procedure whereby a landlord may repossess [the]

premises if he has a right to evict the tenant.” Warren v. City of

Philadelphia, 115 A.2d 218, 221 (Pa. 1955). The Landlord Tenant Act states

that all other inconsistent acts are repealed and that “[i]t is intended that

this act shall furnish a complete and exclusive system in itself.” 68

P.S. § 250.602 (emphasis added).

 

***

 

Regarding self-help, while the Landlord Tenant Act provides that it is the

“complete and exclusive system in itself” to obtain the eviction of

tenants, surprisingly, no Pennsylvania appellate decision has addressed the

issue of the appropriateness of a landlord’s use of self-help, but the courts of

common pleas which have addressed this issue have consistently held self-

help is not available to evict a tenant. See e.g., O'Brien v. Jacob Engle

Foundation, Inc., 47 Pa. D. & C.3d 557, 558–59 (Cumberland Cty. 1987)

(noting that self-help should not be used where judicial procedures, like the

Landlord Tenant Act, are available); Lenair v. Campbell, 31 Pa. D. & C.3d

237, 241 (Philadelphia Cty. 1984) (“Upon reviewing the [Landlord Tenant Act]

in its entirety, it becomes apparent that self-help eviction is not a remedy

under any circumstances. . . . [T]he legislature clearly expressed its intention

that the Act be the sole source of rights, remedies and procedures governing

the landlord/tenant relationship.”); Wofford v. Vavreck, 22 Pa. D. & C. 3d

444, 453 (Crawford Cty. 1981) (“A landlord desirous of seeking repossession

of his leased premises from his tenant for nonpayment of rent must do so

either by bringing an action under the Landlord and Tenant Act [], and the

related Pennsylvania Rules of Civil Procedure for Justices of the Peace, or by

bringing an action in ejectment.”); Williams v. Guzzardi, 875 F.2d 46, 52 n.

13 (3d Cir. 1989) (analyzing pertinent Pennsylvania law). Moreover, under

the Master Lease, the ACCA limited itself to seeking only remedies at law and

equity and not to engage in self-help, even if it was permissible. See Master

Lease at 46, § 12.04).

 

UC - voluntary quit - firm offer of other employment

Cortez v. UCBR – Cmwlth. Court – May 30, 2023 – unreported memorandum opinion**

 

https://www.pacourts.us/assets/opinions/Commonwealth/out/776CD22_5-30-23.pdf?cb=1

 

“A claimant who voluntarily terminates his employment has the burden of proving that a necessitous and compelling cause existed.” Solar Innovations, Inc. v. UCBR., 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012). Our Court has held that the receipt and acceptance of a firm offer of employment constitutes cause of a necessitous and compelling nature. Id. A firm offer of employment is one that contains the specific conditions of employment, such as wages, hours, duties, and a starting date. Baron v. UCBR., 384 A.2d 271, 272 (Pa. Cmwlth. 1978). “The offer of employment, however, must be definite, and the claimant must act prudently with regard to his employer.” N. Huntingdon, 450 A.2d at 769. While “the receipt and acceptance of a firm offer of employment does constitute termination for cause of a necessitous and compelling nature . . . [t]he mere possibility of obtaining another job is insufficient to establish that employment was terminated for good cause.” Solar Innovations, 38 A.3d at 1056-57 (emphasis added). 

In determining whether the claimant had a firm offer of work justifying his voluntary quit, our case law instructs that the operative date is the date the claimant resigns, not the claimant’s last day of work. See N. Huntingdon, 450 A.2d at 770 (looking to the terms of the claimant’s offer of employment “at the time [the c]laimant tendered his resignation” to determine if the offer was, in fact, definite) (emphasis added); UCBR. v. Pa. Power & Light Co., 351 A.2d 698, 700 (Pa. Cmwlth. 1976) (concluding that, based on the circumstances surrounding his offer of employment at the time the claimant submitted his notice of resignation, the test for necessitous and compelling cause was met); see also Lane v. UCBR. (Pa. Cmwlth., No. 576 C.D. 2014, filed Oct. 21, 2014), slip op. at 2-4 (affirming the denial of UC benefits where “[t]he Board found that [the] ‘claimant ha[d] not credibly established that he had a firm offer of other employment at the time he quit’” and where “‘[t]he claimant admit[ted] that he tendered his resignation notice without having a start date for the other employment’”) (quoting the Board’s decision) (emphasis added).

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

UC - late appeal - when nunc pro tunc allowed

Amin v. UCBR  - May 2023 - unreported

https://www.pacourts.us/assets/opinions/Commonwealth/out/773CD22_5-9-23.pdf?cb=1

Section 501(e) of the UC Law provides that a party has 21 (formerly 15) days to appeal a referee’s decision to the Board. 43 P.S. § 821(e). The

Department’s associated regulation calculates the deadline for the appeal of a UC determination from the date the decision was delivered personally or placed into the mail. 34 Pa. Code § 101.82. If an appeal is not timely filed, the determination becomes final, and the Board does not have the requisite jurisdiction to consider the matter. Hessou v. Unemployment Comp. Bd. of Rev., 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008) (citing Darroch v. Unemployment Comp. Bd. of Rev., 627 A.2d 1235 (Pa. Cmwlth. 1993)). An appeal filed even one day after the appeal period is untimely. Hessou, 942 A.2d at 198 (citing Dumberth v. Unemployment Comp. Bd. of Rev., 837 A.2d 678 (Pa. Cmwlth. 2003) (en banc)). The Board may consider an untimely appeal only in limited circumstances. Hessou, 942 A.2d at 198 (citing Unemployment Comp. Bd. of Rev. v. Hart, 348 A.2d 497 (Pa. Cmwlth. 1975)). A claimant seeking to establish the right to an untimely appeal bears a heavy burden, because the statutory time limit for appeals is mandatory. Hessou, 942 A.2d at 198 (citing Blast Intermediate Unit No.

17 v. Unemployment Comp. Bd. of Rev., 645 A.2d 447 (Pa. Cmwlth. 1994)). To satisfy his burden, a claimant must show fraudulent behavior or manifestly wrongful or negligent conduct by the administrative authority or non-negligent conduct beyond the claimant’s control that caused the delay. Hessou, 942 A.2d at 198 (citingBass v. Commonwealth, 401 A.2d 1133 (Pa. 1979)). “[F]ailure to file an appeal within fifteen days, without an adequate excuse for the late filing, mandates dismissal of the appeal.” Hessou, 942 A.2d at 198 (quoting U.S. Postal Serv. v. Unemployment Comp. Bd. of Rev., 620 A.2d 572, 573 (Pa. Cmwlth. 1993)) (additional quotation marks omitted).

whistleblower law - prima facie case - concrete evidence v. subjective evidence

Javitz v. Luzerne County, Pa. Supreme Court – May 5, 2023 – reported, precedential

 

https://www.pacourts.us/assets/opinions/Supreme/out/J-49-2022mo%20-%20105527876223594181.pdf?cb=1

 

 

whistleblower law (a) Persons not to be discharged.--No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste by a public body or an instance of waste by any other employer as defined in this act. 43 P.S. § 1423(a). 3 

The Commonwealth Court recognized that to establish a prima facie claim under the Whistleblower Law, a plaintiff must establish “(1) a protected report of wrongdoing, (2) by a public body, and (3) a causal connection between the report and her termination.” Javitz v. Luzerne Cnty., 115 C.D. 2020, 2021 WL 3028160, at *6 (Pa. Commw. July 19, 2021) (unpublished disposition), appeal granted, 267 A.3d 482 (Pa. 2021). 

The Whistleblower Law is “chiefly a remedial measure” that aims to promote openness in governmental operations and governmental compliance with the law. O’Rourke, 778 A.2d at 1202. It achieves these goals by protecting employees from adverse employer action following a report of actual or suspected violation of federal, state or local law; protecting employees who participate in hearings, investigations, or court proceedings regarding employer misconduct; and providing remedies for employees and penalties against employers for actions that violate its terms. Bailets v. Pa. Tpk. Comm’n, 123 A.3d 300, 307 (Pa. 2015); see also 43 P.S. § 1421, 

Section 4 of the Whistleblower Law provides a cause of action, allowing that “[a] person who alleges a violation of this act may bring a civil action in a court of competent jurisdiction for appropriate injunctive relief or damages, or both, within 180 days after the occurrence of the alleged violation.” Id. § 1424(a). 

To establish a prima facie case of a violation of Section 3(a), an employee must establish “by a preponderance of the evidence that, prior to the alleged reprisal, the employee or a person acting on behalf of the employee had reported or was about to report in good faith, verbally or in writing, an instance of wrongdoing or waste to the employer or an appropriate authority.” Id. § 1424(b). In the case of alleged retaliatory termination, the employee must show a causal connection between the report of wrongdoing and the termination. Bailets, 123 A.3d at 306 

The causation requirement was first articulated in Gray v. Hafer, 651 A.2d 221 (Pa. Commw. 1994), aff’d per curiam, 669 A.2d 335 (Pa. 1995). . . . . the Commonwealth Court explained, at the pleading stage, such an employee must allege a connection between the report of waste or wrongdoing and the termination: 

To make out a cause of action under the Whistleblower Law by one who, as part of his or her regular job duties, files reports of waste or wrongdoing based on wrongdoing outside the governmental entity that he is charged with seeking out, that person must make more than a general statement that a report was filed and, within a given amount of time, the employee was fired as a result. An employee who has been terminated based on a filed report and wants to base his or her complaint on their employer’s violation under the Whistleblower Law must specify how their employer is guilty of waste and/or wrongdoing. They must also show by concrete facts or surrounding circumstances that the report led to their dismissal, such as that there was specific direction or information they received not to file the report or there would be adverse consequences because the report was filed. Id. (emphasis added).

Four years later, this Court adopted this causation standard. Golaschevsky, 720A.2d at 759. 

Quoting directly from Gray, this Court stated that to establish the causal connection for a claim of retaliatory termination under the Whistleblower Law, an employee “must show by concrete facts or surrounding circumstances that the report of wrongdoing ... led to the [] dismissal, such as that there was specific direction or information received not to file the report or that there would be adverse consequences because the report was filed.” Id. at 759 (internal quotations omitted) (emphasis added) (quoting Gray, 651 A.2d at 225).

Thus, in Golaschevsky, the Court held that a plaintiff’s prima facie case for causation may be established by use of either “concrete facts or surrounding circumstances” but not by the employee’s conclusory perception of how others treated him after making a report of alleged wrongdoing. Id. at 759-60. 

When considered in the context of the evidence adduced by the employee, it is clear that the requirement for “concrete facts or surrounding circumstances” to establish a causal connection means that the whistleblower plaintiff cannot rely on his or her perception of the facts to support a conclusion that the employer engaged in antagonistic conduct after the report. Instead, the plaintiff must prove the concrete facts or surrounding circumstances from which the factfinder can draw the inference that the employer’s conduct was antagonistic. 

Golaschevsky stands for the proposition that a plaintiff cannot rely on self-serving conclusions of an antagonistic post-report workplace and subsequent discharge to establish a prima facie case of causation. 

The Commonwealth Court’s wholesale classification of this evidence as Javitz’s “subjective perception” is wrong. The only item of evidence properly characterized as “subjective perception” evidence is her characterization of the “rude behavior of her supervisors.” 

Evidence of pre-report performance praise  and the post- report relocation of her office, restriction of her participation in union meetings and contract negotiations, and changes in the delegation of responsibilities is evidence of facts, not perception, upon which an inference of post-report antagonism and causation could be based. In its summary of Javitz’s evidence, the Commonwealth Court neglected to include the additional evidence of post-reporting antagonism that she, as the human resources director, was denied access to personnel files that were locked away and not given a key to access them, that she was told for the first time to do the filing for the office, that Lawson instructed the District Attorney not to pursue an investigation into the report, that Parsnik ignored all of her inquires as to what action was being taken as a result of her report, and that she was not provided a reason for her termination, even after requesting it. This is “concrete evidence” offered in support of establishing a causal connection. Javitz argues in her brief that she produced evidence of facts supporting an inference of a pattern of post-reporting antagonism culminating in her discharge,20 and we agree that the Commonwealth Court erred in concluding that it was instead merely her perception that the conduct was antagonistic. 

For this reason, we conclude that the Commonwealth Court erred and misapplied the law. Accordingly, we vacate its order and remand for further proceedings consistent with this opinion 

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custody - relocation

https://www.pacourts.us/assets/opinions/Superior/out/J-A06009-23m%20-%20105495941219026881.pdf?cb=1

 

** 

Superior Court

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

attorneys - ethical rules - attorney-lobbyist - Rule 1.19(c)

Order  - https://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%20105495491218988041.pdf?cb=1

 

 

Rule 1.19(c) - https://www.pacourts.us/assets/opinions/Supreme/out/attachment%20-%20105495491218988051.pdf?cb=1

 

A lawyer whose service as a public officer or public employee of a governmental body concludes on or after June 1, 2023, shall not act as a lobbyist, as defined in any statute, resolution passed or adopted by either house of the Legislature, regulation promulgated by the Executive Branch or any agency of the Commonwealth of Pennsylvania or ordinance enacted by a local government unit, on any matter before the governmental body with which the lawyer had been associated for one year after termination of the lawyer’s service as a public officer or public employee. 

 

custody - jurisdiction

Welliver v. Ortiz – Pa. Super. – March 8, 2023

https://www.pacourts.us/assets/opinions/Superior/out/J-A03019-23o%20-%20105457667214892481.pdf?cb=1

 

Held: Pennsylvania trial court did not have jurisdiction over custody case, where neither parent had lived here for a considerable time, and there was no substantial evidence concerning the child in this state.

Accordingly, the trial court did not have exclusive and continuing jurisdiction over the most recent custody petition.

The court also lacked jurisdiction under 23 Pa.C.S.A. § 5422(b), which permits a court to modify a custody determination only if it has jurisdiction to  make an initial custody determination under 23 Pa.C.S.A. § 5421(a). 

The facts on the record fail to establish any of the four jurisdictional bases stated in section 5421, concerning jurisdiction to make an initial custody determination: subsection (

1) is inapposite because the Commonwealth was not Child’s home state at the time of the proceeding or six months before; subsection 

(2) is inapposite because a court of another state had jurisdiction at the time of the filing of the 2020 petition; subsection 

(3) is inapposite because New Jersey (and/or California) have not declined to exercise jurisdiction on the grounds that the Commonwealth is the most appropriate forum to determine custody under sections 5427 or 5428; and 

(4) at least one other state would have jurisdiction under paragraphs (1), (2) or (3). 

The trial court therefore lacked jurisdiction to modify custody under section 5421. Because the trial court lacked subject matter jurisdiction, its August 19, 2022 custody order is null and void.