Devine v. America's Whole Lender, et al. - ED Pa. - September 25, 2008
http://www.paed.uscourts.gov/documents/opinions/08D1132P.pdf
Plaintiff's evidence about defendant's preliminary, fraudulent misrepresentations is barred by the Pennsylvania application of the parol evidence rule barring evidence about fraud in the inducement.
From the opinion (read it and weep)
Under Pennsylvania law, evidence of prior or contemporaneous oral or written negotiations or agreements is generally inadmissible to explain or vary the terms of a contract that covers or purports to cover the entire agreement of the parties. Yocca v. The Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004); Bardwell v. Willis Co., Inc., 100 A.2d 102, 104 (Pa. 1953). In Yocca, the Pennsylvania Supreme Court explained the fraud exception to the parol evidence rule as follows:
"Notably, while parol evidence may be introduced based on a party's claim that there was fraud in the execution of the contract, i.e., that a term was fraudulently omitted from the contract, parol evidence may not be admitted based on a claim that there was fraud in the inducement of the contract, i.e., that an opposing party made false representations that induced the complaining party to agree to the contract. Yocca, 854 A.2d at fn. 26; see also HCB Contractors v. Liberty Place Hotel Assocs., 652 A.2d 1278, 1279 (Pa. 1995)."
The plaintiffs claim they signed the loan documents based on defendant's assurances that the payment option they desired would be added to the package after execution of the documents. This is fraud in the inducement. The parol evidence rule bars the introduction of this evidence because plaintiffs seek to vary the terms of the written loan documents, which purported to cover the parties' entire agreement. There is no evidence that a term was fraudulently omitted from the contract. Thus, what happened here does not fall within the fraud exception under Yocca.
Given Pennsylvania's adoption of the parol evidence rule, the plaintiffs cannot be said to have justifiably relied on the defendants' representations regarding the amount of the monthly payments due under the loans because these representations are in direct conflict with the parties' contract. Yocca, 854 A.2d at 502. Thus, plaintiffs' claim under the UTPCPL fails.
Accordingly, the court will grant summary judgment on plaintiffs' claims under the catch-all provision of the UTPCPL which are based on defendants' alleged misrepresentations.6
n. 6 - The plaintiffs' brief in opposition to the defendants' motion for summary judgment for the first time asserts that their claims "are based in part on the ground that a violation of any portion of the UTPCPL, notably here the violations of 73 P.S. section 201-7 and the violation of any other consumer protection laws, such as the TILA, constitute per se violations of section 201-4(2) of the TPCPL." However, paragraph 32 of the plaintiffs' complaint premises their per se violations of the UTPCPL on the defendants' alleged violations of the Pa. Credit Services Act and the Pa. Loan Broker Trade Practices Regulations ("LBTP") only. To the extent the plaintiffs have premised their claims under the UTPCPL on the alleged violations of TILA and § 201-7 of the UTPCPL, such claims come too late.
Friday, September 26, 2008
child abuse - founded report - right to hearing
G.M. v. DPW - Commonwealth Court - September 26, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/765CD08_9-26-08.pdf
There is no right to a civil expungment hearing on a "founded" report of abuse--i.e., one based on a court decision-- where the defendant has previously pleaded nolo contendere in a separate criminal case, if the same underlying factual circumstances are involved in both matters.
The court contrasted its decision in R.F. v. DPW, 845 A.2d 214 (Pa. Cmwlth. 2004), where the generic criminal charges did not correspond to the allegations of abuse in the civil case.
Where “there is an entry of a guilty plea or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstance involved in the allegation of child abuse, an appeal would ‘in most instances, constitute a collateral attack of the adjudication itself, which is not allowed.’” J.G. v. DPW, 795 A.2d 1089, 1093 (Pa. Cmwlth. 2002).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/765CD08_9-26-08.pdf
There is no right to a civil expungment hearing on a "founded" report of abuse--i.e., one based on a court decision-- where the defendant has previously pleaded nolo contendere in a separate criminal case, if the same underlying factual circumstances are involved in both matters.
The court contrasted its decision in R.F. v. DPW, 845 A.2d 214 (Pa. Cmwlth. 2004), where the generic criminal charges did not correspond to the allegations of abuse in the civil case.
Where “there is an entry of a guilty plea or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstance involved in the allegation of child abuse, an appeal would ‘in most instances, constitute a collateral attack of the adjudication itself, which is not allowed.’” J.G. v. DPW, 795 A.2d 1089, 1093 (Pa. Cmwlth. 2002).
Thursday, September 25, 2008
contracts - insurance - interpretation - reasonable expectation of insured
Betz v. Erie Insurance Exchange - Superior Court - September 22, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a23045_08.pdf
Trial court judgment in favor of the insured affirmed on appeal. The case involved a "sinkhole endorsement" to a homeowner's policy, which the court found ambiguous as a matter of law and "insufficiently clear to put the policyholder on notice of what the endorsement actually covered...."
Although the interpretation of insurance policies, like all contracts, depends on the intention of the parties, courts also consider all the circumstances, including the object to be accomplished. Contract principes have only limited application in insurance cases. Our courts have often observed that “‘normal’ contract principles do not apply to insurance transactions.”
The "proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured.” This rule of "reasonable expectations" is "not limited only to situations in which the insurance contract might be deemed ambiguous. Regardless of ambiguity or lack thereof, our courts have reviewed the totality of the underlying circumstances.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a23045_08.pdf
Trial court judgment in favor of the insured affirmed on appeal. The case involved a "sinkhole endorsement" to a homeowner's policy, which the court found ambiguous as a matter of law and "insufficiently clear to put the policyholder on notice of what the endorsement actually covered...."
Although the interpretation of insurance policies, like all contracts, depends on the intention of the parties, courts also consider all the circumstances, including the object to be accomplished. Contract principes have only limited application in insurance cases. Our courts have often observed that “‘normal’ contract principles do not apply to insurance transactions.”
The "proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured.” This rule of "reasonable expectations" is "not limited only to situations in which the insurance contract might be deemed ambiguous. Regardless of ambiguity or lack thereof, our courts have reviewed the totality of the underlying circumstances.
UC - independent contractor - barber
Glatfelter Barber Shop v. UCBR- September 24, 2008 - Commonwealth Court (2-1)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1736CD07_9-24-08.pdf
The court affirmed the Board decision that the claimant was an employee rather than an independent contractor, and thus was not disqualified under sec. 402(h) of the UC Law, 43 P.S. § 802(h).
The court said that there is a presumption that the claimant was an employee (without citing cases), and that the employer had not overcome that with contrary evidence. The court also held that the claimant was not engaged In an independently established trade, occupation, profession or business, citing Viktor v. DOLI, 586 Pa. 196, 892 A.2d 781 (2006).
Finally, the court held that claimant's refusal to sign a non-compete agreement was not willful misconduct, citing Zimmerman v. UCBR, 836 A.2d 1074, 1080-81 (Pa. Cmwlth. 2003) (the refusal to sign an agreement presented to a claimant more as an ultimatum than a matter to be negotiated does not constitute willful misconduct.)
There was a lengthy dissent, arguing that the Board decision was arbitrary and capricious.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1736CD07_9-24-08.pdf
The court affirmed the Board decision that the claimant was an employee rather than an independent contractor, and thus was not disqualified under sec. 402(h) of the UC Law, 43 P.S. § 802(h).
The court said that there is a presumption that the claimant was an employee (without citing cases), and that the employer had not overcome that with contrary evidence. The court also held that the claimant was not engaged In an independently established trade, occupation, profession or business, citing Viktor v. DOLI, 586 Pa. 196, 892 A.2d 781 (2006).
Finally, the court held that claimant's refusal to sign a non-compete agreement was not willful misconduct, citing Zimmerman v. UCBR, 836 A.2d 1074, 1080-81 (Pa. Cmwlth. 2003) (the refusal to sign an agreement presented to a claimant more as an ultimatum than a matter to be negotiated does not constitute willful misconduct.)
There was a lengthy dissent, arguing that the Board decision was arbitrary and capricious.
Thursday, September 18, 2008
disability - failure to consider evidence - remand
Magid v. Astrue - ED Pa. - September 18, 2008
http://www.paed.uscourts.gov/documents/opinions/08D1109P.pdf
The ALJ failed to mention--and presumably consider--the opinion of an examining state agency psychologist, Dr. Gensemer.
"In coming to the determination that Magid did not have any mental limitations that would prevent him from performing “at least semi-skilled work,” it is unclear whether or not the ALJ completely ignored Dr. Gensemer’s opinion. Thus, the case must be remanded for the ALJ to reconsider the medical evidence in the record regarding Magid’s mental limitations and explain his reasoning for accepting and rejecting the various opinions. See Burnett v. Comm’r of Social Sec. Admin., 220 F.3d 112, 121-22 (3d Cir. 2000).
"The above analysis demonstrates that the ALJ failed to fully consider the record before him, and thus, the court will not make a ruling on Magid’s remaining arguments regarding whether or not the ALJ erred in determining that Magid could perform medium work and return to his past relevant work. "
http://www.paed.uscourts.gov/documents/opinions/08D1109P.pdf
The ALJ failed to mention--and presumably consider--the opinion of an examining state agency psychologist, Dr. Gensemer.
"In coming to the determination that Magid did not have any mental limitations that would prevent him from performing “at least semi-skilled work,” it is unclear whether or not the ALJ completely ignored Dr. Gensemer’s opinion. Thus, the case must be remanded for the ALJ to reconsider the medical evidence in the record regarding Magid’s mental limitations and explain his reasoning for accepting and rejecting the various opinions. See Burnett v. Comm’r of Social Sec. Admin., 220 F.3d 112, 121-22 (3d Cir. 2000).
"The above analysis demonstrates that the ALJ failed to fully consider the record before him, and thus, the court will not make a ruling on Magid’s remaining arguments regarding whether or not the ALJ erred in determining that Magid could perform medium work and return to his past relevant work. "
UC - willful misconduct - conscious disregard
Patterson v. UCBR - Commonwealth Court - September 12, 2008 - unreported memorandum opinion
http://www.courts.state.pa.us/OpPosting/CWealth/out/1741CD07_9-12-08.pdf
Housekeeper not guilty of willful misconduct because employer did not show willful/intentional violation of his job duties, only that his performance fell below employer standards.
The court relied on Rung v. UCBR, 689 A.2d 999 (Pa. Cmwlth. 1997), holding that there must be any intentional disregard of the employer's interests, and BK Foods v. UCBR, 547 A.2d 873 (Pa. Cmwlth. 1988), holding that there is a differenence between "mere incompetence, inexperience or inability" and a "conscious disregard of the employer's interest." McCrea v. UCBR, 487 A.2d 69 (Pa. Cmwlth 1986).
There was no showing here of conscious disregard or unwillingness to to work to the best of his ability. Even under the Board's own findings, the most that was shown was a possible mistake about work assignments.
There was a dissent, stating the evidence showed that claimant knew what was he was supposed to do but didn't do it.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1741CD07_9-12-08.pdf
Housekeeper not guilty of willful misconduct because employer did not show willful/intentional violation of his job duties, only that his performance fell below employer standards.
The court relied on Rung v. UCBR, 689 A.2d 999 (Pa. Cmwlth. 1997), holding that there must be any intentional disregard of the employer's interests, and BK Foods v. UCBR, 547 A.2d 873 (Pa. Cmwlth. 1988), holding that there is a differenence between "mere incompetence, inexperience or inability" and a "conscious disregard of the employer's interest." McCrea v. UCBR, 487 A.2d 69 (Pa. Cmwlth 1986).
There was no showing here of conscious disregard or unwillingness to to work to the best of his ability. Even under the Board's own findings, the most that was shown was a possible mistake about work assignments.
There was a dissent, stating the evidence showed that claimant knew what was he was supposed to do but didn't do it.
Thursday, September 11, 2008
UC- willful misconduct - mental illness - evidence
Seneca Valley School District v. UCBR - Commonwealth Court - September 9, 2008 - UNREPORTED MEMORANDUM OPINION
http://www.courts.state.pa.us/OpPosting/CWealth/out/267CD08_9-9-08.pdf
Teacher established good cause for her conduct. There was substantial evidence--the required expert medical evidence, Dept. of Navy v. UCBR, 632 A.2d 622 (Pa. Cmwlth. 1993), from the employer's own witness--to support its finding that claimant's behavior was excused because it was caused by mental illness.
That evidence showed that claimant's conduct was caused by a brief psychotic episode from which she had recovered, and that she was presently able to work.
The employer's claim that its own witness's testimony about its own psychiatrist's findings was hearsay was rejected. The court held that it came under the "admission against interest" exception, a voluntary acknowledgment by a party of the truth of facts which are inconsistent with the party's claim in an action. Such evidence has a "high evidentiary value" and is accepted on the assumption that a witness would not say anything against his interest unless it were true.
http://www.courts.state.pa.us/OpPosting/CWealth/out/267CD08_9-9-08.pdf
Teacher established good cause for her conduct. There was substantial evidence--the required expert medical evidence, Dept. of Navy v. UCBR, 632 A.2d 622 (Pa. Cmwlth. 1993), from the employer's own witness--to support its finding that claimant's behavior was excused because it was caused by mental illness.
That evidence showed that claimant's conduct was caused by a brief psychotic episode from which she had recovered, and that she was presently able to work.
The employer's claim that its own witness's testimony about its own psychiatrist's findings was hearsay was rejected. The court held that it came under the "admission against interest" exception, a voluntary acknowledgment by a party of the truth of facts which are inconsistent with the party's claim in an action. Such evidence has a "high evidentiary value" and is accepted on the assumption that a witness would not say anything against his interest unless it were true.
UC - voluntary quit - conscious intention
Subway List, Inc. v. UCBR - Commonwealth Court - September 5, 2008 - unreported memorandum opinion
http://www.courts.state.pa.us/OpPosting/CWealth/out/2258CD07_9-5-08.pdf
Held that totality of circumstances, the claimant did not show the required "conscious intention to voluntarily quit her job," even when she failed to complete a questionnaire by the time specified by her employer, June 30th.
She was out on a medical leave and did send the employer a letter, received on July 1st, saying that she would respond more precisely after an upcoming checkup. Her "inability to predict the circumstances regarding her return to work did not demonstrate an intention to quit"
Nor were her actions willful misconduct. "The letters that Claimant sent served the same purpose of advising employer of her intentions....Claimant reasonably attempted to comply with employer's request and...her actions did not constitute willful misconduct."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2258CD07_9-5-08.pdf
Held that totality of circumstances, the claimant did not show the required "conscious intention to voluntarily quit her job," even when she failed to complete a questionnaire by the time specified by her employer, June 30th.
She was out on a medical leave and did send the employer a letter, received on July 1st, saying that she would respond more precisely after an upcoming checkup. Her "inability to predict the circumstances regarding her return to work did not demonstrate an intention to quit"
Nor were her actions willful misconduct. "The letters that Claimant sent served the same purpose of advising employer of her intentions....Claimant reasonably attempted to comply with employer's request and...her actions did not constitute willful misconduct."
Wednesday, September 10, 2008
UC - reconsideration - new evidence - second bite at the apple
Rose v. UCBR - September 9, 2008 - unreported memorandum decision
http://www.courts.state.pa.us/OpPosting/CWealth/out/145CD08_9-9-08.pdf
The regulation at 34 Pa. Code §101.1116 provides that an aggrieved party may request the Board to reconsider its decision. The Board’s “decision to grant or deny a request for reconsideration is a matter of administrative discretion, this Court’s scope of review of that decision is limited to determining whether the agency abused its discretion.”
Section 101.111(b) provides that the Board will grant a request for reconsideration for “good cause.” In determining whether “good cause” exists, the agency must consider whether the party requesting reconsideration has identified new circumstances or whether the agency failed to consider relevant law.
An offer to provide additional evidence does not constitute good cause unless it can be shown that this “new” evidence was not available at the time of the Referee’s hearing.
Save exceptional circumstances, this Court simply does not allow a party “the proverbial second bite at the apple.” Primecare Medical, Inc. v. Unemployment Compensation Board of Review, 760 A.2d 483, 488 (Pa. Cmwlth. 2000)
http://www.courts.state.pa.us/OpPosting/CWealth/out/145CD08_9-9-08.pdf
The regulation at 34 Pa. Code §101.1116 provides that an aggrieved party may request the Board to reconsider its decision. The Board’s “decision to grant or deny a request for reconsideration is a matter of administrative discretion, this Court’s scope of review of that decision is limited to determining whether the agency abused its discretion.”
Section 101.111(b) provides that the Board will grant a request for reconsideration for “good cause.” In determining whether “good cause” exists, the agency must consider whether the party requesting reconsideration has identified new circumstances or whether the agency failed to consider relevant law.
An offer to provide additional evidence does not constitute good cause unless it can be shown that this “new” evidence was not available at the time of the Referee’s hearing.
Save exceptional circumstances, this Court simply does not allow a party “the proverbial second bite at the apple.” Primecare Medical, Inc. v. Unemployment Compensation Board of Review, 760 A.2d 483, 488 (Pa. Cmwlth. 2000)
due process - emergency - post-deprivation hearing
Elsmere Park Club v. Town of Elsmere - 3d Circuit - September 9, 2008
http://www.ca3.uscourts.gov/opinarch/071821p.pdf
Town condemned apartment complex because of mold and sewage problems.
Held: No pre-deprivation hearing was required because of "exception circumstances" and need for prompt government action, e.g. threat to public health of safety.
The post-deprivation process that was offered--and which owner abandoned--was held to be adequate.
http://www.ca3.uscourts.gov/opinarch/071821p.pdf
Town condemned apartment complex because of mold and sewage problems.
Held: No pre-deprivation hearing was required because of "exception circumstances" and need for prompt government action, e.g. threat to public health of safety.
The post-deprivation process that was offered--and which owner abandoned--was held to be adequate.
federal courts - pleading
Umland v. Planco Financial Services - Third Circuit - Septembe 9, 2008
http://www.ca3.uscourts.gov/opinarch/064688p.pdf
In light of the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955 (2007), we have cautioned that the factual allegations in the complaint must not be “so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
In addition, “it is no longer sufficient to allege mere elements of a cause of action; instead ‘a complaint must allege facts suggestive of [the proscribed] conduct.’ ” Id. (alteration in original) (quoting Twombly, 127 S. Ct. at 1969 n.8).
We have interpreted Twombly’s emphasis on “plausibility” to mean that the complaint’s “ ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ ” Id. at 234 (quoting Twombly, 127 S. Ct. at 1965).
__._,_.___
http://www.ca3.uscourts.gov/opinarch/064688p.pdf
In light of the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955 (2007), we have cautioned that the factual allegations in the complaint must not be “so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
In addition, “it is no longer sufficient to allege mere elements of a cause of action; instead ‘a complaint must allege facts suggestive of [the proscribed] conduct.’ ” Id. (alteration in original) (quoting Twombly, 127 S. Ct. at 1969 n.8).
We have interpreted Twombly’s emphasis on “plausibility” to mean that the complaint’s “ ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ ” Id. at 234 (quoting Twombly, 127 S. Ct. at 1965).
__._,_.___
Monday, September 08, 2008
employment - state min. wage act - domestic workers
Bayada Nurses, Inc. v. Dept. of Labor & Industry - Commonwealth Court - September 4, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/477MD07_9-4-08.pdf
Home health aides held entitled to state minimum wage and overtime protections under state Minimum Wage Act (MWA), 43 P.S. 333.105(a)(2), (4), and regulations, 34 Pa. Code 231.1(b), which mandated coverage where the work was done as an employee of a third party, such as petitioner, and not the householder her/himself.
These state laws provide coverage where federal law does not, 29 CFR 552.3, 552.109(a). The law is clear, however, that the FLSA does not pre-empt state regulations of wages and overtime if the state's standards are more beneficial to workers, FLSA sec. 218(a).
The dissent felt that the case was not ripe, because DLI had not taken action against the employer, which had failed to exhaust administrative remedies.
http://www.courts.state.pa.us/OpPosting/CWealth/out/477MD07_9-4-08.pdf
Home health aides held entitled to state minimum wage and overtime protections under state Minimum Wage Act (MWA), 43 P.S. 333.105(a)(2), (4), and regulations, 34 Pa. Code 231.1(b), which mandated coverage where the work was done as an employee of a third party, such as petitioner, and not the householder her/himself.
These state laws provide coverage where federal law does not, 29 CFR 552.3, 552.109(a). The law is clear, however, that the FLSA does not pre-empt state regulations of wages and overtime if the state's standards are more beneficial to workers, FLSA sec. 218(a).
The dissent felt that the case was not ripe, because DLI had not taken action against the employer, which had failed to exhaust administrative remedies.
PFA - jurisdiction - sufficiency of evidence
BTW v. PJL - Superior Court - August 27, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/S11044_08.pdf
The trial court had jurisdiction over PFA involving abuse of a child even though defendants lived and abuse took place outside of Pennsylvania, since a Pennsylvania court had previously entered a custody order concerning the child and had "exclusive, continuing jurisdiction" over custody and related matters under 23 Pa. C.S. 5422(a) and 5402 (definition of "child custody proceeding" includes PFA action."
In addition, the evidence was sufficient to establish abuse, where it included hitting with a belt, pulling hair, bruising, marks on back.
http://www.courts.state.pa.us/OpPosting/Superior/out/S11044_08.pdf
The trial court had jurisdiction over PFA involving abuse of a child even though defendants lived and abuse took place outside of Pennsylvania, since a Pennsylvania court had previously entered a custody order concerning the child and had "exclusive, continuing jurisdiction" over custody and related matters under 23 Pa. C.S. 5422(a) and 5402 (definition of "child custody proceeding" includes PFA action."
In addition, the evidence was sufficient to establish abuse, where it included hitting with a belt, pulling hair, bruising, marks on back.
PFA - reasonable fear - course of conduct
Mescanti v. Mescanti - Superior Court - August 29, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/a17028_08.pdf
Husband's course of conduct held sufficient to cause reasonable fear of bodily injury in wife. That conduct included
- threats that she'd better not to sleep or even close her eyes
- fact that husband had guns in the house, and wife heard sounds of gun cocking
- husband interrupting wife's sleep, hacking into her email, following her around, disconnecting phone lines, etc.
It was held that "the record amply supports the trial courts's conclusion that wife established, by a preponderance of the evidence, that husband engaged in a course of conduct that place wife in reasonable fear of bodily injury.
http://www.courts.state.pa.us/OpPosting/Superior/out/a17028_08.pdf
Husband's course of conduct held sufficient to cause reasonable fear of bodily injury in wife. That conduct included
- threats that she'd better not to sleep or even close her eyes
- fact that husband had guns in the house, and wife heard sounds of gun cocking
- husband interrupting wife's sleep, hacking into her email, following her around, disconnecting phone lines, etc.
It was held that "the record amply supports the trial courts's conclusion that wife established, by a preponderance of the evidence, that husband engaged in a course of conduct that place wife in reasonable fear of bodily injury.
employment - nursing - good moral character
Sellers v. State Board of Nursing - Commonwealth Court - August 28, 2008 - unreported memorandum decision
http://www.courts.state.pa.us/OpPosting/CWealth/out/297CD08_8-28-08.pdf
Petition for reinstatement of license of former R.N. denied because of her failure to accept responsibility for her wrongdoing, which related to abuse of alcohol. She was not honest and forthright and truthful with the state licensing authorities. The Board acted properly in conditioning reinstatement, in part, on an actual acknowledgment of wrongdoing, which is an important initial step in preventing recurrence of wrongful conduct and restoring the licensee's credibility. This applies to any wrongful conduct, not just fraudulent conduct. The licensing act "requires good moral character as a qualification for a license to practice nursing."
http://www.courts.state.pa.us/OpPosting/CWealth/out/297CD08_8-28-08.pdf
Petition for reinstatement of license of former R.N. denied because of her failure to accept responsibility for her wrongdoing, which related to abuse of alcohol. She was not honest and forthright and truthful with the state licensing authorities. The Board acted properly in conditioning reinstatement, in part, on an actual acknowledgment of wrongdoing, which is an important initial step in preventing recurrence of wrongful conduct and restoring the licensee's credibility. This applies to any wrongful conduct, not just fraudulent conduct. The licensing act "requires good moral character as a qualification for a license to practice nursing."
Friday, September 05, 2008
UC - willful misconduct - working to the best of one's ability
Thompson v. UCBR - Commonwealth Court - September 5, 22008 - unreported memorandum decision
http://www.courts.state.pa.us/OpPosting/CWealth/out/294CD08_9-5-08.pdf
Unsatisfactory job performance does not necessarily disqualify a claimant for benefits because incompetence, inexperience or inability to do the job does not amount to willful misconduct. Geslao v. UCBR, 519 A.2d 1096, 1097 (Pa. Cmwlth. 1987). In this regard, “a finding that a claimant has worked to the best of his ability negates a conclusion of willful misconduct.” Norman Ashton Klinger & Associates, P.C. v. UCBR, 561 A.2d 841, 843 (Pa. Cmwlth. 1989).
However, contrary to Claimant’s assertion, a claimant’s failure to work to the best of his ability can constitute willful misconduct. Specifically, this Court has explained:
When...an employee’s on the job performance is below the level of his or her ability and this conduct continues over a period of time despite the employee being aware of it as such, it is considered a conscious or careless disregard of the employer’s interest and constitutes willful misconduct. Younes v. UCBR, 467 A.2d 1227, 1228 (Pa. Cmwlth. 1983).
Further, “a showing of actual intent to wrong the Employer is not required. Claimant’s conscious indifference to his employment duties is enough to support a finding of willful misconduct.” Cullison v. UCBR, 444 A.2d 1330, 1331 (Pa. Cmwlth. 1982).
We reject Claimant’s assertion that the Board incorrectly focused on whether Claimant worked to the best of his ability. This standard has a foundation in our precedent. Not working to the best of a person’s ability contains the element of intentionality that rises to willful misconduct if the person is capable of performing the job properly but does not do so.
http://www.courts.state.pa.us/OpPosting/CWealth/out/294CD08_9-5-08.pdf
Unsatisfactory job performance does not necessarily disqualify a claimant for benefits because incompetence, inexperience or inability to do the job does not amount to willful misconduct. Geslao v. UCBR, 519 A.2d 1096, 1097 (Pa. Cmwlth. 1987). In this regard, “a finding that a claimant has worked to the best of his ability negates a conclusion of willful misconduct.” Norman Ashton Klinger & Associates, P.C. v. UCBR, 561 A.2d 841, 843 (Pa. Cmwlth. 1989).
However, contrary to Claimant’s assertion, a claimant’s failure to work to the best of his ability can constitute willful misconduct. Specifically, this Court has explained:
When...an employee’s on the job performance is below the level of his or her ability and this conduct continues over a period of time despite the employee being aware of it as such, it is considered a conscious or careless disregard of the employer’s interest and constitutes willful misconduct. Younes v. UCBR, 467 A.2d 1227, 1228 (Pa. Cmwlth. 1983).
Further, “a showing of actual intent to wrong the Employer is not required. Claimant’s conscious indifference to his employment duties is enough to support a finding of willful misconduct.” Cullison v. UCBR, 444 A.2d 1330, 1331 (Pa. Cmwlth. 1982).
We reject Claimant’s assertion that the Board incorrectly focused on whether Claimant worked to the best of his ability. This standard has a foundation in our precedent. Not working to the best of a person’s ability contains the element of intentionality that rises to willful misconduct if the person is capable of performing the job properly but does not do so.
UC - willful misconduct - sleeping on the job
Dolan v. UCBR - Commonwealth Court - Septeem ger 5, 2008 - unreported memorandum decision
http://www.courts.state.pa.us/OpPosting/CWealth/out/718CD08_9-5-08.pdf
The Court has repeatedly held that sleeping on the job is “prima facie an act of willful misconduct.” Biggs v. UCBR, 443 A.2d 1204, 1205 (Pa. Cmwlth. 1982). Accord Kelley v. UCBR, 429 A.2d 1227 (Pa. Cmwlth. 1981); Ragland v. UCBR, 428 A.2d 1019 (Pa. Cmwlth. 1981); Johnson v. UCBR, 420 A.2d 794 (Pa. Cmwlth. 1980); Markley v. UCBR, 407 A.2d 144 (Pa. Cmwlth. 1979); UCBR v. Simone, 355 A.2d 614 (Pa. Cmwlth. 1976).
Thus, where an employer proves a claimant slept on the job, or a claimant admits he slept on the job, a prima facie case of willful misconduct is proven....As noted above, the record supports the Board’s finding Claimant fell asleep while driving. We agree
Claimant actions constituted willful misconduct, irrespective of whether an ensuing accident and damage to the employer's truck was intentional under Myers v. UCBR, 533 Pa. 373, 625 A.2d 622 (1993) (an employee’s involvement in three accidents in six-month period was, at most, the result of negligence rather than intentional or deliberate conduct; negligent conduct does not equate to willful misconduct for unemployment compensation purposes) and Finch v. UCBR, 692 A.2d 619 (Pa. Cmwlth. 1997)
http://www.courts.state.pa.us/OpPosting/CWealth/out/718CD08_9-5-08.pdf
The Court has repeatedly held that sleeping on the job is “prima facie an act of willful misconduct.” Biggs v. UCBR, 443 A.2d 1204, 1205 (Pa. Cmwlth. 1982). Accord Kelley v. UCBR, 429 A.2d 1227 (Pa. Cmwlth. 1981); Ragland v. UCBR, 428 A.2d 1019 (Pa. Cmwlth. 1981); Johnson v. UCBR, 420 A.2d 794 (Pa. Cmwlth. 1980); Markley v. UCBR, 407 A.2d 144 (Pa. Cmwlth. 1979); UCBR v. Simone, 355 A.2d 614 (Pa. Cmwlth. 1976).
Thus, where an employer proves a claimant slept on the job, or a claimant admits he slept on the job, a prima facie case of willful misconduct is proven....As noted above, the record supports the Board’s finding Claimant fell asleep while driving. We agree
Claimant actions constituted willful misconduct, irrespective of whether an ensuing accident and damage to the employer's truck was intentional under Myers v. UCBR, 533 Pa. 373, 625 A.2d 622 (1993) (an employee’s involvement in three accidents in six-month period was, at most, the result of negligence rather than intentional or deliberate conduct; negligent conduct does not equate to willful misconduct for unemployment compensation purposes) and Finch v. UCBR, 692 A.2d 619 (Pa. Cmwlth. 1997)
UC- voluntary retirement - pre-retirement termination
Port Authority v. UCBR - Commonwealth Court - September 4, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/193CD08_9-4-08.pdf
Claimants' employment was terminated; they did not quit their jobs - Following the decisions in Amado v. UCBR, 110 A.2d 807 (Pa. Super. 1955) and PECO Energy Co. v. UCBR, 682 A.2d 40 (Pa. Cmwlth. 1996, and distinguishing that in Davila v. UCBR, 926 A.2d 1287 (Pa. Cmwlth. 2007), the court held that where the employer discharged claimants before their designated retirement dates in a deferred retirement option plan (DROP), the claimants "are considered to have been discharged until such time as those periods expire, and after which time they are considered to have voluntarily quit."
Under the DROP program, the claimants submitted their resignations but continued to work, by agreement with the employer, which had the right to discharge the claimants at any time. However, "such resignations and participation were not sufficient to waive their right to unemployment compensation.....[U]nder Section 701 of the Law, 43 P.S. § 861, employees cannot agree to waive their unemployment compensation benefits. Were we to accept employer’s argument, well-counseled employers would simply ask each new hire to resign effective his first day of work and select a period during which he requested to continue work. Employer could then keep the employee at its leisure, until it unilaterally decided it no longer wished to employ him, at which point it would “retire” him, and such “retirement” would be considered a voluntary quit. Such a scheme subverts the intention of the Law."
"Although Claimants tendered resignations, which purported to be effective as of February 2003, employer invited them to request a period during which they would continue to work, and employer then continued to employ Claimants during this selected period, after the purported effective date of Claimants’ resignations. Under these facts, it is clear that Claimants’ resignations were to be effective at the end of their DROP periods. Therefore, pursuant to Amado and PECO, the Board did not err in determining that, during the time prior to the expiration of their DROP periods, Claimants’ unemployment should be considered involuntary, and analyzed under Section 402(e)"
Claimants are not at fault for the unemployment under Sec. 3 - The court also rejected the employer argument that claimants should be disqualified under Sec. 3 of the UC Law. Claimants were clearly willing and available to continue working had employer not required them to stop. We do not view such participation [in the DROP program] as the sort of culpability upon which this Court has relied in the cases employer cited dealing with Section 3. Employment in Pennsylvania is usually considered to be at-will. Even assuming that claimants had a right to continued employment, which they somehow relinquished by entering into the DROP program, such relinquishment would not be fault of their own sufficient to deny benefits when employer subsequently discharged them.
UC is not a means-tested program - The court rejected the employer's argument that benefits should not be awarded because claimants are not "subject to econonic hardship. Even though the UC law is meant to relieve the "economic hardship of sudden unemployment and provide temporary assistance for the resulting economic burden,” there is "no authority for the proposition that unemployment compensation benefits are, or should be, means-tested, or that only claimants who will be impoverished may receive benefits."
http://www.courts.state.pa.us/OpPosting/CWealth/out/193CD08_9-4-08.pdf
Claimants' employment was terminated; they did not quit their jobs - Following the decisions in Amado v. UCBR, 110 A.2d 807 (Pa. Super. 1955) and PECO Energy Co. v. UCBR, 682 A.2d 40 (Pa. Cmwlth. 1996, and distinguishing that in Davila v. UCBR, 926 A.2d 1287 (Pa. Cmwlth. 2007), the court held that where the employer discharged claimants before their designated retirement dates in a deferred retirement option plan (DROP), the claimants "are considered to have been discharged until such time as those periods expire, and after which time they are considered to have voluntarily quit."
Under the DROP program, the claimants submitted their resignations but continued to work, by agreement with the employer, which had the right to discharge the claimants at any time. However, "such resignations and participation were not sufficient to waive their right to unemployment compensation.....[U]nder Section 701 of the Law, 43 P.S. § 861, employees cannot agree to waive their unemployment compensation benefits. Were we to accept employer’s argument, well-counseled employers would simply ask each new hire to resign effective his first day of work and select a period during which he requested to continue work. Employer could then keep the employee at its leisure, until it unilaterally decided it no longer wished to employ him, at which point it would “retire” him, and such “retirement” would be considered a voluntary quit. Such a scheme subverts the intention of the Law."
"Although Claimants tendered resignations, which purported to be effective as of February 2003, employer invited them to request a period during which they would continue to work, and employer then continued to employ Claimants during this selected period, after the purported effective date of Claimants’ resignations. Under these facts, it is clear that Claimants’ resignations were to be effective at the end of their DROP periods. Therefore, pursuant to Amado and PECO, the Board did not err in determining that, during the time prior to the expiration of their DROP periods, Claimants’ unemployment should be considered involuntary, and analyzed under Section 402(e)"
Claimants are not at fault for the unemployment under Sec. 3 - The court also rejected the employer argument that claimants should be disqualified under Sec. 3 of the UC Law. Claimants were clearly willing and available to continue working had employer not required them to stop. We do not view such participation [in the DROP program] as the sort of culpability upon which this Court has relied in the cases employer cited dealing with Section 3. Employment in Pennsylvania is usually considered to be at-will. Even assuming that claimants had a right to continued employment, which they somehow relinquished by entering into the DROP program, such relinquishment would not be fault of their own sufficient to deny benefits when employer subsequently discharged them.
UC is not a means-tested program - The court rejected the employer's argument that benefits should not be awarded because claimants are not "subject to econonic hardship. Even though the UC law is meant to relieve the "economic hardship of sudden unemployment and provide temporary assistance for the resulting economic burden,” there is "no authority for the proposition that unemployment compensation benefits are, or should be, means-tested, or that only claimants who will be impoverished may receive benefits."
Thursday, September 04, 2008
UC - late appeal - low IQ, illiteracy
Dull v. UCBR - Commonwealth Court - September 3, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/679CD08_9-4-08.pdf
The claimant appealed in October from a referee decision issued in April. The court rejected the appeal, holding against the claimant on her arguments that a) there was no proof of mailing; b) she is incompetent and has an IQ of 76; c) the failure of the UCBR to make a provision for her mental deficiency/illiteracy constitutes an administrative breakdown that warrants allowing an appeal nunc pro tunc.
The court said the the mailbox rule did not apply, since there was evidence in the administrative record that the decision was, indeed, mailed to her. "Thus neither the employer nor administrative officials bear the burden of presenting additional affirmative evidence, but the burden falls on Claimant to prove her allegations." She did not prove that the referee decision was not delivered to her. She "could have have someone read her mail had she chosen to do so." It was her "own negligence" in this regard and not her low IQ that resulted in the late appeal.
The court distinguished Lewis v. UCBR, 814 A.2d 829 (Pa. Cmwlth. 2003), where the court allowed a late appeal for a claimant who, despite an IQ similar to the claimant's here, made a "diligent effort to file her appeal in a timely manner, soliciting help where needed and communicating with the UCSC throughout the process. Here the Claimant exercised no diligence at all....We will not hold the UCBR or related agencies responsible for accommodating illiteracy where claimants fail to disclose their illiteracy and fail to make reasonable efforets to obtain appropriate assistance."
http://www.courts.state.pa.us/OpPosting/CWealth/out/679CD08_9-4-08.pdf
The claimant appealed in October from a referee decision issued in April. The court rejected the appeal, holding against the claimant on her arguments that a) there was no proof of mailing; b) she is incompetent and has an IQ of 76; c) the failure of the UCBR to make a provision for her mental deficiency/illiteracy constitutes an administrative breakdown that warrants allowing an appeal nunc pro tunc.
The court said the the mailbox rule did not apply, since there was evidence in the administrative record that the decision was, indeed, mailed to her. "Thus neither the employer nor administrative officials bear the burden of presenting additional affirmative evidence, but the burden falls on Claimant to prove her allegations." She did not prove that the referee decision was not delivered to her. She "could have have someone read her mail had she chosen to do so." It was her "own negligence" in this regard and not her low IQ that resulted in the late appeal.
The court distinguished Lewis v. UCBR, 814 A.2d 829 (Pa. Cmwlth. 2003), where the court allowed a late appeal for a claimant who, despite an IQ similar to the claimant's here, made a "diligent effort to file her appeal in a timely manner, soliciting help where needed and communicating with the UCSC throughout the process. Here the Claimant exercised no diligence at all....We will not hold the UCBR or related agencies responsible for accommodating illiteracy where claimants fail to disclose their illiteracy and fail to make reasonable efforets to obtain appropriate assistance."
Tuesday, September 02, 2008
social security - disability - duty to consider all evidence - inconsistent findings
Stover v. Astrue - ED Pa. - August 28, 2008
http://www.paed.uscourts.gov/documents/opinions/08D1025P.pdf
The court remanded the case after finding that the ALJ failed to consider all of the medical evidence of record and that his findings with respect to certain medical evidence pertaining to Plaintiff’s mood disorder are irreconcilably inconsistent.
Specifically, the ALJ (a) failed to consider the entire medical opinion of the state agency psychologist, (b) the ALJ appears to have made two different credibility findings as to the consultative physician’s medical opinions concerning plaintiff’s mental impairments, and (c) the ALJ mistakenly represents that certain nonexertional limitations were posed to the VE in a hypothetical question.
These omissions and errors concern medical evidence that is probative of the question before the ALJ at Step Four: whether Plaintiff could return to her past relevant work as a parking lot cashier. Due to these omissions and errors, the court finds that the ALJ’s decision is not supported by substantial evidence.
http://www.paed.uscourts.gov/documents/opinions/08D1025P.pdf
The court remanded the case after finding that the ALJ failed to consider all of the medical evidence of record and that his findings with respect to certain medical evidence pertaining to Plaintiff’s mood disorder are irreconcilably inconsistent.
Specifically, the ALJ (a) failed to consider the entire medical opinion of the state agency psychologist, (b) the ALJ appears to have made two different credibility findings as to the consultative physician’s medical opinions concerning plaintiff’s mental impairments, and (c) the ALJ mistakenly represents that certain nonexertional limitations were posed to the VE in a hypothetical question.
These omissions and errors concern medical evidence that is probative of the question before the ALJ at Step Four: whether Plaintiff could return to her past relevant work as a parking lot cashier. Due to these omissions and errors, the court finds that the ALJ’s decision is not supported by substantial evidence.
Subscribe to:
Posts (Atom)