SUMMARY: We have determined—
(1) A 5.8 percent cost-of-living increase in Social Security benefits under title II of the Social Security Act (the Act), effective for December 2008;
(2) An increase in the Federal Supplemental Security Income (SSI) monthly benefit amounts under title XVI of the Act for 2009 to $674 for an eligible individual, $1,011 for an eligible individual with an eligible spouse, and $338 for an essential person;
(3) The student earned income exclusion to be $1,640 per month in 2009 but not more than $6,600 in all of 2009;
(4) The dollar fee limit for services performed as a representative payee to be $37 per month ($72 per month in the case of a beneficiary who is disabled and has an alcoholism or drug addiction condition that leaves him or her incapable of managing benefits) in 2009;
(5) The dollar limit on the administrative-cost assessment charged to attorneys representing claimants to be $83 in 2009;
(6) The national average wage index for 2007 to be $40,405.48;
(7) The Old-Age, Survivors, and Disability Insurance (OASDI) contribution and benefit base to be $106,800 for remuneration paid in 2009 and self-employment income earned in taxable years beginning in 2009;
(8) The monthly exempt amounts under the Social Security retirement earnings test for taxable years ending in calendar year 2009 to be $1,180 and $3,140;
(9) The dollar amounts (‘‘bend points’’) used in the primary insurance amount benefit formula for workers who become eligible for benefits, or who die before becoming eligible, in 2009 to be $744 and $4,483;
(10) The bend points used in the formula for computing maximum family benefits for workers who become eligible for benefits, or who die before becoming eligible, in 2009 to be $950, $1,372, and $1,789;
(11) The amount of taxable earnings a person must have to be credited with a quarter of coverage in 2009 to be $1,090;
(12) The ‘‘old-law’’ contribution and benefit base to be $79,200 for 2009;
(13) The monthly amount deemed to constitute substantial gainful activity for statutorily blind individuals in 2009 to be $1,640, and the corresponding amount for non-blind disabled persons to be $980;
(14) The earnings threshold establishing a month as a part of a trial work period to be $700 for 2009; and
(15) Coverage thresholds for 2009 to be $1,700 for domestic workers and $1,500 for election workers.
Thursday, October 30, 2008
Wednesday, October 29, 2008
disability - "closely approaching retirement age"
http://edocket.access.gpo.gov/2008/pdf/E8-25532.pdf
SUMMARY: We are modifying the rules we use to determine disability under titles II and XVI of the Social Security Act (‘‘Act’’) to revise the definition of persons ‘‘closely approaching retirement age’’ from ‘‘60–64’’ to ‘‘60 or older.’’
These changes acknowledge that we make disability determinations for persons over age 64. We are also making minor technical changes that will not have any effect on how we determine your eligibility for benefits.
DATES: These rules are effective October 29, 2008.
SUMMARY: We are modifying the rules we use to determine disability under titles II and XVI of the Social Security Act (‘‘Act’’) to revise the definition of persons ‘‘closely approaching retirement age’’ from ‘‘60–64’’ to ‘‘60 or older.’’
These changes acknowledge that we make disability determinations for persons over age 64. We are also making minor technical changes that will not have any effect on how we determine your eligibility for benefits.
DATES: These rules are effective October 29, 2008.
Monday, October 27, 2008
child abuse - expungement - founded report - collateral estoppel
C.J. v. DPW - Cmwlth. Court - October 24, 2008
http://www.courts.state.pa.us/OpPosting/Cwealth/out/591CD08_10-24-08.pdf
An adjudication of dependency and finding of abuse under the Juvenile Act bars a request for expunction from a founded report of child abuse under the Child Protective Services Law, under the doctrine of collateral estoppel.
Our recent decision in K.R. v. DPW, 950 A.2d 1069 (Pa. Cmwlth. 2008), holding the Department may rely on findings made in a dependency proceeding to deny a request for expunction of a founded child abuse report, compels the same result here.
An administrative hearing on the expunction request is not permitted because the petitioner was given a full and fair hearing to defend against the allegations in the dependency proceedings. He cannot collaterally attack the trial court’s dependency and abuse findings. The Court’s determination in K.R. allows for application of res judicata in expunction proceedings where, as here, the findings of fact in dependency proceedings establish child abuse at the hands of a named perpetrator.
Collateral estoppel bars a subsequent lawsuit where (1) an issue decided in a prior action is identical to one presented in a later action; (2) the prior action resulted in a final judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to the prior action, or is in privity with a party to the prior action; and (4), the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action.
The dispositive legal and factual issues were identical in both proceedings here, and the remaining criteria of collateral estoppel are similarly met.
http://www.courts.state.pa.us/OpPosting/Cwealth/out/591CD08_10-24-08.pdf
An adjudication of dependency and finding of abuse under the Juvenile Act bars a request for expunction from a founded report of child abuse under the Child Protective Services Law, under the doctrine of collateral estoppel.
Our recent decision in K.R. v. DPW, 950 A.2d 1069 (Pa. Cmwlth. 2008), holding the Department may rely on findings made in a dependency proceeding to deny a request for expunction of a founded child abuse report, compels the same result here.
An administrative hearing on the expunction request is not permitted because the petitioner was given a full and fair hearing to defend against the allegations in the dependency proceedings. He cannot collaterally attack the trial court’s dependency and abuse findings. The Court’s determination in K.R. allows for application of res judicata in expunction proceedings where, as here, the findings of fact in dependency proceedings establish child abuse at the hands of a named perpetrator.
Collateral estoppel bars a subsequent lawsuit where (1) an issue decided in a prior action is identical to one presented in a later action; (2) the prior action resulted in a final judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to the prior action, or is in privity with a party to the prior action; and (4), the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action.
The dispositive legal and factual issues were identical in both proceedings here, and the remaining criteria of collateral estoppel are similarly met.
PFA - past abuse - present fear of bodily injury
Buchalter v. Buchatler - Superior Court - October 27, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a23044_08.pdf
Past abuse that was subject of prior consent order held relevant to plaintiff's allegation of present fear of bodily injury, even
In essence, the trial court reasons that if Patricia is not believed as to the allegations in the present petition, then there is no need to hear testimony about prior abuse. We disagree. “In the context of a PFA case, the court’s objective is to determine whether the victim is in reasonable fear of imminent serious bodily injury….”
The facts surrounding the prior PFA consent order are relevant to an understanding as to the reasonableness of plaintiff's fear relative to the present petition. Moreover, merely determining that a party is not credible is not a basis in itself to exclude relevant testimony.
The court also cited Miller v. Walker, 665 A.2d 1252 at 1259, for the proposition that it was proper in that case to consider abuse which had occurred 6 years before.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a23044_08.pdf
Past abuse that was subject of prior consent order held relevant to plaintiff's allegation of present fear of bodily injury, even
In essence, the trial court reasons that if Patricia is not believed as to the allegations in the present petition, then there is no need to hear testimony about prior abuse. We disagree. “In the context of a PFA case, the court’s objective is to determine whether the victim is in reasonable fear of imminent serious bodily injury….”
The facts surrounding the prior PFA consent order are relevant to an understanding as to the reasonableness of plaintiff's fear relative to the present petition. Moreover, merely determining that a party is not credible is not a basis in itself to exclude relevant testimony.
The court also cited Miller v. Walker, 665 A.2d 1252 at 1259, for the proposition that it was proper in that case to consider abuse which had occurred 6 years before.
disability - SSA general objections and remand request rejected
Morales v. Astrue - ED Pa. - October 23, 2008
http://www.paed.uscourts.gov/documents/opinions/08D1252P.pdf
SSA submission of "merely of generalized arguments, disagreeing with the Magistrate Judge’s result...do not impugn the validity of the Magistrate Judge’s Recommendation."
SSA request for remand for further evidentiary development also denied where the facts were fully developed before the ALJ and the Commissioner does not specify what additional evidence might be available.
http://www.paed.uscourts.gov/documents/opinions/08D1252P.pdf
SSA submission of "merely of generalized arguments, disagreeing with the Magistrate Judge’s result...do not impugn the validity of the Magistrate Judge’s Recommendation."
SSA request for remand for further evidentiary development also denied where the facts were fully developed before the ALJ and the Commissioner does not specify what additional evidence might be available.
Thursday, October 23, 2008
UC - overpayment - fault - misstatement about ability to work
Presbery v. UCBR - Cmwlth. Court - October 22, 2008 - unreported mem. opinion
http://www.courts.state.pa.us/OpPosting/Cwealth/out/2355CD07_10-22-08.pdf
Claimant was at fault for an overpayment that occurred when she misrepresented her ability to work when applying for UC after being in a car accident. Her own medical evidence showed that she had not been released for work and was not able/available during a period of several months after her application for benefits.
http://www.courts.state.pa.us/OpPosting/Cwealth/out/2355CD07_10-22-08.pdf
Claimant was at fault for an overpayment that occurred when she misrepresented her ability to work when applying for UC after being in a car accident. Her own medical evidence showed that she had not been released for work and was not able/available during a period of several months after her application for benefits.
UC - vol. quit - health/safety concerns
KK Fit, Inc. v. UCBR - Cmwlth. Court- October 22, 2008 - unreported memorandum opinion
http://www.courts.state.pa.us/OpPosting/Cwealth/out/349CD08_10-22-08.pdf
The court upheld the UCBR decision that the claimant had good cause to quit her job as the director of a children's gym, whose clients included infants.
The gym had two ongoing problems about which claimant complained for 5 months, to no avail. There were wiring problems and torn upholstery; some infants were eating pieces of the stuffing.
A third problem involved spider in the gym. One child had a bad reaction to a spider bite and had to be taken to the ER. The employer promised to take care of this problem, but claimant discovered that the exterminator visit had been cancelled and quit. The spider problem was not dealt with until 10 days later.
The Referee found that Claimant “acted as a reasonable person in inferring that [Employer] probably did not intend to take care of the problem immediately, as had been the case with the upholstery and the wiring.” Accordingly, the Referee affirmed the Service Center’s determination. Employer appealed the Referee’s decision to the Board. On appeal, the Board adopted and incorporated the Referee’s findings and conclusions, resolved the conflicts in testimony in favor of Claimant, and concluded that Employer “did not make timely and reasonable efforts to correct the serious safety issues present in the children’s gym.” The court held that these findings were "amply supported" by substantial evidence and the relevant law.
In order to show a necessitous and compelling cause to quit, the claimant must show that: “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.” An employee has a necessitous and compelling reason for terminating employment when the job jeopardizes her health or safety, or when the work results in a violation of the law.
Claimant acted reasonably in terminating her employment when she did. Claimant brought to Employer’s attention two serious safety issues regarding the electrical and upholstery defects which went unaddressed on a permanent basis for nearly five months that Claimant continued with her employment, when another safety issue arose, i.e., the problem with the spiders, at which time Claimant approached Employer about her decision to resign.
Claimant opted to trust Employer that the spider issue would be taken care of in a timely manner and, when she found out that Employer had cancelled the exterminator, she quit her employment. Employer did not address the safety issues. When Employer did not address the spider issue when it said it would, it was not unreasonable for Claimant to believe said safety condition would continue to go unaddressed, because the "Employer did not address the safety issues in a timely manner."
Claimant acted with ordinary common sense and made a reasonable effort to preserve her employment by taking proactive measures to address the safety concerns, while timely notifying the appropriate people of the various safety concerns. A reasonable person would act in the same manner both out of concern for her own safety from the faulty electrical wiring, as well as the lingering safety hazards to the children that were under her care. Based on the totality of the circumstances, and the gravity of the complaints that were not addressed, we cannot conclude that the Board erred as a matter of law in granting Claimant benefits.
http://www.courts.state.pa.us/OpPosting/Cwealth/out/349CD08_10-22-08.pdf
The court upheld the UCBR decision that the claimant had good cause to quit her job as the director of a children's gym, whose clients included infants.
The gym had two ongoing problems about which claimant complained for 5 months, to no avail. There were wiring problems and torn upholstery; some infants were eating pieces of the stuffing.
A third problem involved spider in the gym. One child had a bad reaction to a spider bite and had to be taken to the ER. The employer promised to take care of this problem, but claimant discovered that the exterminator visit had been cancelled and quit. The spider problem was not dealt with until 10 days later.
The Referee found that Claimant “acted as a reasonable person in inferring that [Employer] probably did not intend to take care of the problem immediately, as had been the case with the upholstery and the wiring.” Accordingly, the Referee affirmed the Service Center’s determination. Employer appealed the Referee’s decision to the Board. On appeal, the Board adopted and incorporated the Referee’s findings and conclusions, resolved the conflicts in testimony in favor of Claimant, and concluded that Employer “did not make timely and reasonable efforts to correct the serious safety issues present in the children’s gym.” The court held that these findings were "amply supported" by substantial evidence and the relevant law.
In order to show a necessitous and compelling cause to quit, the claimant must show that: “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.” An employee has a necessitous and compelling reason for terminating employment when the job jeopardizes her health or safety, or when the work results in a violation of the law.
Claimant acted reasonably in terminating her employment when she did. Claimant brought to Employer’s attention two serious safety issues regarding the electrical and upholstery defects which went unaddressed on a permanent basis for nearly five months that Claimant continued with her employment, when another safety issue arose, i.e., the problem with the spiders, at which time Claimant approached Employer about her decision to resign.
Claimant opted to trust Employer that the spider issue would be taken care of in a timely manner and, when she found out that Employer had cancelled the exterminator, she quit her employment. Employer did not address the safety issues. When Employer did not address the spider issue when it said it would, it was not unreasonable for Claimant to believe said safety condition would continue to go unaddressed, because the "Employer did not address the safety issues in a timely manner."
Claimant acted with ordinary common sense and made a reasonable effort to preserve her employment by taking proactive measures to address the safety concerns, while timely notifying the appropriate people of the various safety concerns. A reasonable person would act in the same manner both out of concern for her own safety from the faulty electrical wiring, as well as the lingering safety hazards to the children that were under her care. Based on the totality of the circumstances, and the gravity of the complaints that were not addressed, we cannot conclude that the Board erred as a matter of law in granting Claimant benefits.
real property - tax sale - notice to deceased's estate
In re Upset Price Tax Sale - Cmwlth. Court - October 22, 2008 - unreported mem. opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1102CD07_10-22-08.pdf
Trial court abused its discretion is setting aside tax sale, because of inadequate notice, where notice of the sale was properly sent under the Real Estate Tax Sale Law, RESTL, 721 PS 5860.602(e)(1), to the decedent owner's personal representative (PR), who had extensive contact with the Tax Claim Bureau.
Here, the PR specifically informed the TCB that the owners, her cousins, were deceased and that she was the person responsible to pay the taxes. She informed the TCB where she lived and that she was the designated agent of the family with respect to the Property for its tax liabilities. She was also appointed as the Administratrix of the estate, of her deceased cousin, who remained a record owner of the Property.
The TCB and the PR had previously corresponded regarding the Property and the PR actually prevented a previous upset tax sale when she entered into an agreement with the TCB to pay delinquent taxes on the Property. The parties stipulated that the Board of Assessment’s records since at lease 1999 listed a registered address for the owners as “c/o the PR” at her place of residence, the same address where the tax sale notices were mailed and received.
It would not have constituted ordinary sound business practices for the TCB to send notices to a person who was deceased to an address where it knew that the PR, the designated agent and person responsible for paying the taxes, did not reside.
Because the Section 602(e)(1) “first” notice was sent to and received by the PR, no additional notice or efforts to ascertain the identity and whereabouts of the owner of record were required by the TCB....TCB proved that it gave the requisite notice and there is evidence that the addressee received it. Accordingly, the order of the trial court which invalidated the upset tax sale of the Property is reversed.
-
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1102CD07_10-22-08.pdf
Trial court abused its discretion is setting aside tax sale, because of inadequate notice, where notice of the sale was properly sent under the Real Estate Tax Sale Law, RESTL, 721 PS 5860.602(e)(1), to the decedent owner's personal representative (PR), who had extensive contact with the Tax Claim Bureau.
Here, the PR specifically informed the TCB that the owners, her cousins, were deceased and that she was the person responsible to pay the taxes. She informed the TCB where she lived and that she was the designated agent of the family with respect to the Property for its tax liabilities. She was also appointed as the Administratrix of the estate, of her deceased cousin, who remained a record owner of the Property.
The TCB and the PR had previously corresponded regarding the Property and the PR actually prevented a previous upset tax sale when she entered into an agreement with the TCB to pay delinquent taxes on the Property. The parties stipulated that the Board of Assessment’s records since at lease 1999 listed a registered address for the owners as “c/o the PR” at her place of residence, the same address where the tax sale notices were mailed and received.
It would not have constituted ordinary sound business practices for the TCB to send notices to a person who was deceased to an address where it knew that the PR, the designated agent and person responsible for paying the taxes, did not reside.
Because the Section 602(e)(1) “first” notice was sent to and received by the PR, no additional notice or efforts to ascertain the identity and whereabouts of the owner of record were required by the TCB....TCB proved that it gave the requisite notice and there is evidence that the addressee received it. Accordingly, the order of the trial court which invalidated the upset tax sale of the Property is reversed.
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public employement - termination - due process
Palmer v. Bartosh - Cmwlth. Court - October 23, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/137CD08_10-23-08.pdf
Plaintiff, a school teacher, stated claim for relief under 42 USC 1983 against defendant school administrators, in their individual capacities, for dismissing him from his public employment
"Plaintiff allged alleged that the Defendants, acting under the color of state law: engaged in a secret investigation; refused to allow a witness to observe their interviews with students; coerced and/or coached students into making accusations against Mr. Palmer, which the students thereafter refused to repeat under oath; failed to advise Mr. Palmer of the specific accusations against him or give him the opportunity to rebut them; and thereby obtained Mr. Palmer’s discharge from his employment."
"We conclude that these allegations of specific conduct taken by the Defendants, which must be taken as true at this stage of this proceeding, constitute sufficient facts to state a claim for deprivation of a property right to employment and reputation in violation of the Fourteenth Amendment and article 1, section 1 of the Pennsylvania Constitution, and, therefore, the trial court erred in sustaining the POs to Count VII against the Defendants in their individual capacities."
The Fourteenth Amendment requires due process where the deprivation of an individual’s property right, such as the right to continued public employment, is implicated. Andresky v. West Allegheny School District, 437 A.2d 1075 (Pa. Cmwlth. 1981).
Similarly, article I, section 1 of the Pennsylvania Constitution provides that an individual’s right to property and reputation may not be deprived without due process. R. v. Commonwealth, 535 Pa. 440, 636 A.2d 142 (1994); Pennsylvania Bar Association v. DPW, 607 A.2d 850 (Pa. Cmwlth. 1992).
Due process of law requires that an individual is entitled to adequate notice of the charges against him and an opportunity to be heard. Dunn v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 189 (Pa. Cmwlth. 2003). Adequate notice, for procedural due process purposes, requires at a minimum that notice contain a sufficient listing and explanation of the charges against the individual. Id.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/137CD08_10-23-08.pdf
Plaintiff, a school teacher, stated claim for relief under 42 USC 1983 against defendant school administrators, in their individual capacities, for dismissing him from his public employment
"Plaintiff allged alleged that the Defendants, acting under the color of state law: engaged in a secret investigation; refused to allow a witness to observe their interviews with students; coerced and/or coached students into making accusations against Mr. Palmer, which the students thereafter refused to repeat under oath; failed to advise Mr. Palmer of the specific accusations against him or give him the opportunity to rebut them; and thereby obtained Mr. Palmer’s discharge from his employment."
"We conclude that these allegations of specific conduct taken by the Defendants, which must be taken as true at this stage of this proceeding, constitute sufficient facts to state a claim for deprivation of a property right to employment and reputation in violation of the Fourteenth Amendment and article 1, section 1 of the Pennsylvania Constitution, and, therefore, the trial court erred in sustaining the POs to Count VII against the Defendants in their individual capacities."
The Fourteenth Amendment requires due process where the deprivation of an individual’s property right, such as the right to continued public employment, is implicated. Andresky v. West Allegheny School District, 437 A.2d 1075 (Pa. Cmwlth. 1981).
Similarly, article I, section 1 of the Pennsylvania Constitution provides that an individual’s right to property and reputation may not be deprived without due process. R. v. Commonwealth, 535 Pa. 440, 636 A.2d 142 (1994); Pennsylvania Bar Association v. DPW, 607 A.2d 850 (Pa. Cmwlth. 1992).
Due process of law requires that an individual is entitled to adequate notice of the charges against him and an opportunity to be heard. Dunn v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 189 (Pa. Cmwlth. 2003). Adequate notice, for procedural due process purposes, requires at a minimum that notice contain a sufficient listing and explanation of the charges against the individual. Id.
Wednesday, October 22, 2008
civil procedure - POs - failure to respond
Joloza v. PennDOT - Cmwlth. Court - October 23, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/485CD08_10-22-08.pdf
It was error fro the trial court to sustain the defendant's preliminary objections (demurrer) solely on the basis of plaintiff's failure to respond to the POs, without even considering the allegations in the plaintiff's complaint.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/485CD08_10-22-08.pdf
It was error fro the trial court to sustain the defendant's preliminary objections (demurrer) solely on the basis of plaintiff's failure to respond to the POs, without even considering the allegations in the plaintiff's complaint.
UC - "unemployed"
Scott v. UCBR - Cmwlth. Court - October 21, 2008 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/305CD08_10-21-08.pdf
School employee was not "unemployed" under 43 PS sec. 753(u) and 801 where she continued to receive wages and health benefits under a collective barg. agreement during a period in which she was not working, over the summer.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/305CD08_10-21-08.pdf
School employee was not "unemployed" under 43 PS sec. 753(u) and 801 where she continued to receive wages and health benefits under a collective barg. agreement during a period in which she was not working, over the summer.
custody - public schooling v. home schooling - no presumption
Staub v. Staub - Superior Court - October 21, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A13018_08.pdf
The court rejected father's request that it "adopt a clear but narrow rule that requires children to attend public schools when parents who share legal custody cannot agree on home schooling versus public schooling. We decline to adopt such a rule or presumption. To the contrary, we hold that the well-established best interests standard, applied on a case by case basis, governs a court’s decision regarding public schooling versus home schooling."
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A13018_08.pdf
The court rejected father's request that it "adopt a clear but narrow rule that requires children to attend public schools when parents who share legal custody cannot agree on home schooling versus public schooling. We decline to adopt such a rule or presumption. To the contrary, we hold that the well-established best interests standard, applied on a case by case basis, governs a court’s decision regarding public schooling versus home schooling."
Monday, October 20, 2008
UC - appellate brief - no case citations; willful misconduct
Miracle v. UCBR - Cmwlth. Court - October 20, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/250CD08_10-20-08.pdf
appellate brief - Rule 2101 - no case citations -The court refused to quash claimant's brief, even though it did not contain any case citations. The court found that the "argument articulated are sufficient to allow the court to engage in appellate review.
willful misconduct - Claimant's failure to comply with the employer's reasonable work request (entering an incident in a master log) was reasonable, and that claimant's failure to do so, without good cause, constituted willful misconduct.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/250CD08_10-20-08.pdf
appellate brief - Rule 2101 - no case citations -The court refused to quash claimant's brief, even though it did not contain any case citations. The court found that the "argument articulated are sufficient to allow the court to engage in appellate review.
willful misconduct - Claimant's failure to comply with the employer's reasonable work request (entering an incident in a master log) was reasonable, and that claimant's failure to do so, without good cause, constituted willful misconduct.
Friday, October 17, 2008
disability - mental impairment - severity
Velazquez v. Astrue - ED Pa. - October 2008
http://www.paed.uscourts.gov/documents/opinions/08D1220P.pdf
Finding of non-severity of mental impairment not supported by substantial evidence. Case remanded.
" In order to meet the step two severity test, an impairment need only cause a slight abnormality that has no more than a minimal effect on the ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921; S.S.R. 96-3p, 85-28. The Third Circuit Court of Appeals has held that the step two severity inquiry is a “de minimus screening device to dispose of groundless claims.” McCrea v. Comm. of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004); Newell v. Comm. of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003). “Any doubt as to whether this showing has been made is to be resolved in favor of the applicant.” Id.
The medical records from 2000 and 2001 show serious symptoms and limitations arising from Velazquez’s mental impairment including GAF scores between 45 and 58....Although the ALJ listed most of the evidence, she did not mention the GAF scores or sufficiently explain why the state medical consultant’s conclusion of non-severity was most consistent with the evidence, especially in light of the many serious findings from Velazquez’s treating and examining mental health professionals.
While the evidence may not establish disabling depression, the evidence also does not appear to establish that Velazquez’s depression was groundless. As a result, on remand, the ALJ shall re-assess her determination regarding Velazquez’s depression and support her decision with substantial evidence. Likewise, the ALJ shall conform her RFC assessment and any hypothetical questions to reflect her properly supported conclusions.
http://www.paed.uscourts.gov/documents/opinions/08D1220P.pdf
Finding of non-severity of mental impairment not supported by substantial evidence. Case remanded.
" In order to meet the step two severity test, an impairment need only cause a slight abnormality that has no more than a minimal effect on the ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921; S.S.R. 96-3p, 85-28. The Third Circuit Court of Appeals has held that the step two severity inquiry is a “de minimus screening device to dispose of groundless claims.” McCrea v. Comm. of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004); Newell v. Comm. of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003). “Any doubt as to whether this showing has been made is to be resolved in favor of the applicant.” Id.
The medical records from 2000 and 2001 show serious symptoms and limitations arising from Velazquez’s mental impairment including GAF scores between 45 and 58....Although the ALJ listed most of the evidence, she did not mention the GAF scores or sufficiently explain why the state medical consultant’s conclusion of non-severity was most consistent with the evidence, especially in light of the many serious findings from Velazquez’s treating and examining mental health professionals.
While the evidence may not establish disabling depression, the evidence also does not appear to establish that Velazquez’s depression was groundless. As a result, on remand, the ALJ shall re-assess her determination regarding Velazquez’s depression and support her decision with substantial evidence. Likewise, the ALJ shall conform her RFC assessment and any hypothetical questions to reflect her properly supported conclusions.
evidence - clear and convincing evidence
Kistler v. State Ethics Commission - Cmwlth. Court - October 17, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1352CD07_10-17-08.pdf
" Clear and convincing proof is evidence that is so clear, direct, weighty and convincing that it enables the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue. In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88 (1998)."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1352CD07_10-17-08.pdf
" Clear and convincing proof is evidence that is so clear, direct, weighty and convincing that it enables the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue. In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88 (1998)."
Thursday, October 16, 2008
UC- willful misconduct
Keystone Central School District v. UCBR - Cmwlth./ Court - October 15, 2008 - unreported en banc memorandum opinion (5-2)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1864CD07_10-15-08.pdf
Learning support teacher was not guilty of willful misconduct for her conduct during testing of learning disabled students. The UCBR's findings that her actions were consistent with state exam testing accommodations, each child's IEP, and instructions from her superiors were supported by substantial evidence.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1864CD07_10-15-08.pdf
Learning support teacher was not guilty of willful misconduct for her conduct during testing of learning disabled students. The UCBR's findings that her actions were consistent with state exam testing accommodations, each child's IEP, and instructions from her superiors were supported by substantial evidence.
paternity by estoppel
Ellison v. Lopez - Superior Court - October 15, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a18031_08.pdf
Defendant estopped from denying paternity of child born out of wedlock where
- there was no fraud or misrepresentation by mother
- defendant was always aware that there was a question about paternity
- defendant held child out as his own and assumed parental role for at least two years, despite paternity questions
- defendant did not ask for paternity testing for two years, despite child's lack of resemblance to him
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a18031_08.pdf
Defendant estopped from denying paternity of child born out of wedlock where
- there was no fraud or misrepresentation by mother
- defendant was always aware that there was a question about paternity
- defendant held child out as his own and assumed parental role for at least two years, despite paternity questions
- defendant did not ask for paternity testing for two years, despite child's lack of resemblance to him
Wednesday, October 15, 2008
UC - appeal - notice of issues - timeliness of appeal
Plut v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2283CD07_10-14-08.pdf
Issue of timeliness of claimant's appeal was properly considered, even though not listed on the notice of hearing.
The referee gave claimant the option of continuing the hearing because the issue was not listed, but not the "chance to refused to decide the timeliness issue" under 34 Pa. Code101.87. http://www.pacode.com/secure/data/034/chapter101/s101.87.html.
Nonetheless, following Dilenno v. UCBR, 429 A.2d 1288 (Pa. Cmwlth 1288, 1289 (Pa. Cmwlth. 1981), the court said the timeliness of an appeal is a jurisdictional prerequisite that is always at issue, cannot be waived by the referee by the failure to list it on the notice of hearing, and can be raised by the court on its own motion at any time.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2283CD07_10-14-08.pdf
Issue of timeliness of claimant's appeal was properly considered, even though not listed on the notice of hearing.
The referee gave claimant the option of continuing the hearing because the issue was not listed, but not the "chance to refused to decide the timeliness issue" under 34 Pa. Code101.87. http://www.pacode.com/secure/data/034/chapter101/s101.87.html.
Nonetheless, following Dilenno v. UCBR, 429 A.2d 1288 (Pa. Cmwlth 1288, 1289 (Pa. Cmwlth. 1981), the court said the timeliness of an appeal is a jurisdictional prerequisite that is always at issue, cannot be waived by the referee by the failure to list it on the notice of hearing, and can be raised by the court on its own motion at any time.
UC- vol. quit - good cause - change in work schedule
Philadelphia Park Casino v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/726CD08_10-14-08.pdf
Claimant had good cause to quit his job where he has negotiated a work shedule with the employer, for religious and health reasons, and employer unilaterally changed the schedule.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/726CD08_10-14-08.pdf
Claimant had good cause to quit his job where he has negotiated a work shedule with the employer, for religious and health reasons, and employer unilaterally changed the schedule.
UC - hearing - continuance - good cause - new job
Ammon v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/795CD08_10-14-08.pdf
Refusal to grant claimant's last minute request for a continuance was an abuse of discretion, where it resulted from an unexpected, last-minute opportunity to begin employment on the day of the hearing.
Normally, last-minute requests are disfavored. However, in this case the request was supported by "proper cause" under 34 Pa. Code § 101.23 http://www.pacode.com/secure/data/034/chapter101/s101.23.html.
The refusal to grant it would penalize a person who actually found work and would be "contrary to the goal of stabilizing employment." Shegan v. UCBR, 564 A.2d 1022, 1025 n. 5 (Pa. Cmwlth. 1989).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/795CD08_10-14-08.pdf
Refusal to grant claimant's last minute request for a continuance was an abuse of discretion, where it resulted from an unexpected, last-minute opportunity to begin employment on the day of the hearing.
Normally, last-minute requests are disfavored. However, in this case the request was supported by "proper cause" under 34 Pa. Code § 101.23 http://www.pacode.com/secure/data/034/chapter101/s101.23.html.
The refusal to grant it would penalize a person who actually found work and would be "contrary to the goal of stabilizing employment." Shegan v. UCBR, 564 A.2d 1022, 1025 n. 5 (Pa. Cmwlth. 1989).
pre-emption - state/local
Hoffman Mining Company v. Zoning Hearing Board - Cmwlth. Court - October 15, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2122CD07_10-15-08.pdf
Whether a state statute preempts local regulation is determined by the intent of the General Assembly. The General Assembly can specifically express its intent by either providing that municipalities may enact ordinances not inconsistent with state law, limiting what subjects of regulation that may be enacted, or by expressly forbidding municipal regulation altogether.
However, the General Assembly is often silent and is not presumed to have preempted the field by legislating in it; therefore, it must clearly be shown that it was the General Assembly’s intent to preempt the field by legislation. Retail Master Bakers Association v. Allegheny County, 400 Pa. 1, 161 A.2d 36 (1960); Baird v. Township of New Britain, 633 A.2d 225 (Pa. Cmwlth. 1993).
The presumption against preemption is based on the understanding that what is being preempted is the ability of the municipality, through its elected local officials, to address the needs of its citizens.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2122CD07_10-15-08.pdf
Whether a state statute preempts local regulation is determined by the intent of the General Assembly. The General Assembly can specifically express its intent by either providing that municipalities may enact ordinances not inconsistent with state law, limiting what subjects of regulation that may be enacted, or by expressly forbidding municipal regulation altogether.
However, the General Assembly is often silent and is not presumed to have preempted the field by legislating in it; therefore, it must clearly be shown that it was the General Assembly’s intent to preempt the field by legislation. Retail Master Bakers Association v. Allegheny County, 400 Pa. 1, 161 A.2d 36 (1960); Baird v. Township of New Britain, 633 A.2d 225 (Pa. Cmwlth. 1993).
The presumption against preemption is based on the understanding that what is being preempted is the ability of the municipality, through its elected local officials, to address the needs of its citizens.
Wednesday, October 08, 2008
UC - willful misconduct - lateness
Turner v. UCBR - Cmwlth. Court - October 8, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/519CD08_10-8-08.pdf
Claimant was guilty of willful misconduct when she stopped on her way to work to get shoes (because her feet hurt), without telling the employer that she was doing so and would be late. Claimant had a history of lateness and had been given a final warning.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/519CD08_10-8-08.pdf
Claimant was guilty of willful misconduct when she stopped on her way to work to get shoes (because her feet hurt), without telling the employer that she was doing so and would be late. Claimant had a history of lateness and had been given a final warning.
child abuse - "imminent risk" - OCYF Bulletin
Montgomery Co. CYS v. DPW - Cmwlth. Court - Octobwer 8, 2008 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/376CD08_10-8-08.pdf
No risk of imminent serious injury by momentary inattention of daycare worker, especially considering the definition of "imminent risk" in proposed regs.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/376CD08_10-8-08.pdf
No risk of imminent serious injury by momentary inattention of daycare worker, especially considering the definition of "imminent risk" in proposed regs.
Monday, October 06, 2008
disability - treating physician opinion; credibility
Wilson v. Astrue - ED Pa. November 28, 2007
http://www.paed.uscourts.gov/documents/opinions/07D1402P.pdf
Benefits granted in this case, with good discussions of standards for evaluating opinion of treating physician and judging claimant credibility.
http://www.paed.uscourts.gov/documents/opinions/07D1402P.pdf
Benefits granted in this case, with good discussions of standards for evaluating opinion of treating physician and judging claimant credibility.
Sunday, October 05, 2008
UC - vol. quit - intolerable conditions - unjust accusations
First Federal Savings Bank v. UCBR - Commonwealth Court - October 2, 2008
http://www.courts.state.pa.us/OpPosting/Cwealth/out/427CD08_10-2-08.pdf
Held that claimant had good cause/necessitour & compelling reason to quit her job, where
- she was a valued management employeee
- a fellow employee “engaged in outbursts, was talking, defiant and argumentative, and was quite disrespectful to the claimant personally.”
- claimant expressed her concerns about this to senior management, who did not do anything about it
- claimant established that “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.”
- She had ‘good cause’ for voluntarily leaving (i.e. that cause which is necessitous and compelling) resulting from circumstances which produced pressure to terminate employment that was both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.”
- "Perhaps most important to the present case, it is well established that “a claimant need not indefinitely subject herself to unjust accusations and abusive conduct.” However, “[r]esentmentof a reprimand, absent unjust accusations, profane language or abusive conduct …mere disappointment with wages … and personality conflicts, absent intolerable working atmosphere … do not amount to necessitous and compelling causes.”
- Claimant demonstrated more than a mere belief of unjust accusations, as the Board concluded that Claimant was, in fact, unjustly reprimanded with abusive language and that Claimant was subjected to intolerable working conditions.
- Claimant made attempts on various occasions to preserve her employment relationship with Employer without success. Claimant took her concerns to senior management officials and was reasonable in doing so
http://www.courts.state.pa.us/OpPosting/Cwealth/out/427CD08_10-2-08.pdf
Held that claimant had good cause/necessitour & compelling reason to quit her job, where
- she was a valued management employeee
- a fellow employee “engaged in outbursts, was talking, defiant and argumentative, and was quite disrespectful to the claimant personally.”
- claimant expressed her concerns about this to senior management, who did not do anything about it
- claimant established that “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.”
- She had ‘good cause’ for voluntarily leaving (i.e. that cause which is necessitous and compelling) resulting from circumstances which produced pressure to terminate employment that was both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.”
- "Perhaps most important to the present case, it is well established that “a claimant need not indefinitely subject herself to unjust accusations and abusive conduct.” However, “[r]esentmentof a reprimand, absent unjust accusations, profane language or abusive conduct …mere disappointment with wages … and personality conflicts, absent intolerable working atmosphere … do not amount to necessitous and compelling causes.”
- Claimant demonstrated more than a mere belief of unjust accusations, as the Board concluded that Claimant was, in fact, unjustly reprimanded with abusive language and that Claimant was subjected to intolerable working conditions.
- Claimant made attempts on various occasions to preserve her employment relationship with Employer without success. Claimant took her concerns to senior management officials and was reasonable in doing so
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