Mendez, et al. v. Puerto Rican International Companies - 3d Cir. - January 26, 2009
http://www.ca3.uscourts.gov/opinarch/074053p.pdf
The issue for resolution is whether a defendant who is entitled to arbitrate an issue which it has with one plaintiff in a suit can insist on a mandatory stay of litigation of issues it has with other plaintiffs who are not committed to arbitrate those issues. We conclude that Section 3 was not intended to mandate curtailment of the litigation rights of anyone who has not agreed to arbitrate any of the issues before the court.
We acknowledge at the outset that Section 3 can be read literally to confer a right to a mandatory stay in the context of this case. Section 3 is an integral part of a statutory scheme, however, and reading it in the context of the FAA as a whole, we decline to attribute that intent to Congress.
The purpose of the FAA is to render agreements to arbitrate fully enforceable. 9 U.S.C. § 2 (a contract to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”). The purpose of Section 3, in particular, is to guarantee that a party who has secured the agreement of another to arbitrate rather than litigate a dispute will reap the full benefits of its bargain. In short, the “liberal policy ‘favoring arbitration agreements . . . is at bottom a policy guaranteeing the enforcement of private contractual arrangements.’”
Accordingly, “under the FAA, ‘a court may compel a party to arbitrate where that party has entered into a written agreement to arbitrate that covers the dispute.’” Because Congress thus limited the rights it created in the FAA to situations involving corresponding obligations voluntarily assumed by another, we decline appellants’ invitation to interpret Section 3 in a way that would mandate the imposition of a material burden on a party’s right to litigate claims it has not agreed to arbitrate.
While Section 3, as appellants read it, would postpone rather than eliminate a party’s right to litigate its claims against another, it would nevertheless defer that right for the duration of a proceeding over which the constrained party has no control and would deprive the Court of any discretion to consider the impact of that delay on that party. We find no persuasive evidence in the FAA for sanctioning such a burden.
Wednesday, January 28, 2009
Tuesday, January 27, 2009
disability - attorney fees - subantially justified
Magwood v. Astrue - ED Pa. - January 21, 2009
http://www.paed.uscourts.gov/documents/opinions/09D0086P.pdf
Government's position was not substantially justified where it was contrary to clearly established law concerning step 2 (severity) of the disability evaluation process. The government's prior "string of successes" before a 3d Cir. reversal was not enough to satisfy its burden.
A fee of $12,275.21 was awarded (68.30 hours at a rate of $176.23, plus $238.70 for expenses)
http://www.paed.uscourts.gov/documents/opinions/09D0086P.pdf
Government's position was not substantially justified where it was contrary to clearly established law concerning step 2 (severity) of the disability evaluation process. The government's prior "string of successes" before a 3d Cir. reversal was not enough to satisfy its burden.
A fee of $12,275.21 was awarded (68.30 hours at a rate of $176.23, plus $238.70 for expenses)
mortgage foreclosure - defective Act 91 - prejudice
Wells Fargo v. Monroe - Superior Court - January 26, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s71014_08.pdf
An allegedly defective* Act 91 notice was held not to be a defense to a foreclosure action when the mortgagors were given and availed themselves of the opportunity to pursue mortgage assistance through the HEMAP program.
They met with a credit counseling agency within the 30, as provided by the Act 91 Notice, and applied for mortgage assistance, which was ultimately denied. Under these circumstances, no prejudice could be presumed because of lack of compliance with the Act 91 requirements, and no prejudice was shown.
The " trial court did not abuse its discretion in finding that the Act 91 Notice sufficiently apprised the Monroes of their options with regard to the aid to which they were entitled. Therefore, the trial court’s grant of the motion for summary judgment filed by Wells Fargo was proper."
*The Act 91 notice was alleged to be defective for lack of notation of a place to cure and the inclusion of improper fees.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s71014_08.pdf
An allegedly defective* Act 91 notice was held not to be a defense to a foreclosure action when the mortgagors were given and availed themselves of the opportunity to pursue mortgage assistance through the HEMAP program.
They met with a credit counseling agency within the 30, as provided by the Act 91 Notice, and applied for mortgage assistance, which was ultimately denied. Under these circumstances, no prejudice could be presumed because of lack of compliance with the Act 91 requirements, and no prejudice was shown.
The " trial court did not abuse its discretion in finding that the Act 91 Notice sufficiently apprised the Monroes of their options with regard to the aid to which they were entitled. Therefore, the trial court’s grant of the motion for summary judgment filed by Wells Fargo was proper."
*The Act 91 notice was alleged to be defective for lack of notation of a place to cure and the inclusion of improper fees.
attorney fees - lease - prevailing party
Bayne v. Smith - Superior Court - January 26, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a28016_08.pdf
The court reversed the trial court and held that the lease was not an adhesion contract and that the attorney fee provision was not unconscionable. The tenant did not show a lack of meaningful choice about whether to accept the provision, or that the provision unreasonably favored the landlord.
The court held that critical language in Galligan v. Arovitch, 421 Pa. 301[, 219 A.2d 463] (1966), was mere dicta. It found that the trial court’s reliance on Galligan and Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 485-486, 329 A.2d 812, 830 (1974)] was "misplaced" and the the tenant "failed to satisfy her burden as to unconscionability."
The fee provision in question would have allowed the tenant to recover attorney fees from the landlord had she prevailed in her defense. It gave the "prevailing party" the right to recover fees.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a28016_08.pdf
The court reversed the trial court and held that the lease was not an adhesion contract and that the attorney fee provision was not unconscionable. The tenant did not show a lack of meaningful choice about whether to accept the provision, or that the provision unreasonably favored the landlord.
The court held that critical language in Galligan v. Arovitch, 421 Pa. 301[, 219 A.2d 463] (1966), was mere dicta. It found that the trial court’s reliance on Galligan and Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 485-486, 329 A.2d 812, 830 (1974)] was "misplaced" and the the tenant "failed to satisfy her burden as to unconscionability."
The fee provision in question would have allowed the tenant to recover attorney fees from the landlord had she prevailed in her defense. It gave the "prevailing party" the right to recover fees.
discovery - sanctions - Pa. courts
Cove Centre, Inc. v. Westhafer Construction Co. - Superior Court - January 26, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a32023_08.pdf
Where a discovery sanction either terminates the action directly or would result in its termination by operation of law, the court must consider multiple factors balanced together with the necessity of the sanction.(1) the nature and severity of the discovery violation;(2) the defaulting party's willfulness or bad faith;(3) prejudice to the opposing party;(4) the ability to cure the prejudice; and(5) the importance of the precluded evidence in light of the failure to comply.
With few exceptions, there is no greater sanction in a civil case than a deemed admission of a Request for Admission, as well as preclusion of expert testimony and entry of judgment, so a balancing of the equities emphasizing the nature and motive of the non-compliant party’s conduct is mandatory.
The mere failure of an unrepresented party to comply with discovery rules does not amount to “willfulness or bad faith” as contemplated by case law.
As concerns potential prejudice occasioned by the failure to comply with discovery, the record discloses no hardship to the party seeking sanctions which is not readily remedied upon remand.
The party never filed a Motion to Compel Discovery so as to invoke the trial court’s authority in the interest of advancing the litigation and minimizing delay, which has now been extended by the necessity of this appeal. Moreover, the violations in question did not result in a loss of evidence favorable to the movant. Compliance with the discovery requests in question, even at this late date, would allow the matter to proceed to a full and fair resolution.Compared to the extraordinary prejudice of a sanction order that the trial court has since repudiated, the prejudice to the movant imposed by the failure to comply with discovery is minimal.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a32023_08.pdf
Where a discovery sanction either terminates the action directly or would result in its termination by operation of law, the court must consider multiple factors balanced together with the necessity of the sanction.(1) the nature and severity of the discovery violation;(2) the defaulting party's willfulness or bad faith;(3) prejudice to the opposing party;(4) the ability to cure the prejudice; and(5) the importance of the precluded evidence in light of the failure to comply.
With few exceptions, there is no greater sanction in a civil case than a deemed admission of a Request for Admission, as well as preclusion of expert testimony and entry of judgment, so a balancing of the equities emphasizing the nature and motive of the non-compliant party’s conduct is mandatory.
The mere failure of an unrepresented party to comply with discovery rules does not amount to “willfulness or bad faith” as contemplated by case law.
As concerns potential prejudice occasioned by the failure to comply with discovery, the record discloses no hardship to the party seeking sanctions which is not readily remedied upon remand.
The party never filed a Motion to Compel Discovery so as to invoke the trial court’s authority in the interest of advancing the litigation and minimizing delay, which has now been extended by the necessity of this appeal. Moreover, the violations in question did not result in a loss of evidence favorable to the movant. Compliance with the discovery requests in question, even at this late date, would allow the matter to proceed to a full and fair resolution.Compared to the extraordinary prejudice of a sanction order that the trial court has since repudiated, the prejudice to the movant imposed by the failure to comply with discovery is minimal.
Monday, January 26, 2009
contracts - right-to-cure clause - incurable breach
LJL Transportation v. Pilot Air Freight Corp. - Pa. Supreme Court - January 22, 2009
http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-60-2008mo.pdf
Held: A party’s conduct in breaching a francise agreement can may justify its immediate termination, even if the contract includes an express provision granting the breaching party the right to cure before the contract is terminated, when there is a material breach of the contract so serious it goes directly to the heart and essence of the contract, rendering the breach incurable.
The wrongful conduct consisted of plaintiff's admittedly dishonest, indefensible diversion of business to defendant's competitor.
The court looked to the law of other states, which had adopted the “Williston view,” which provides, “Unless a contract provision for termination for breach is in terms exclusive . . . it is a cumulative remedy and does not bar the ordinary remedy of termination for a breach which is material or which goes to the root of the matter or essence of the contract.” Williston, A Treatise on The Law of Contracts, § 842, 165 n.1 (3d. ed. 1962).
http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-60-2008mo.pdf
Held: A party’s conduct in breaching a francise agreement can may justify its immediate termination, even if the contract includes an express provision granting the breaching party the right to cure before the contract is terminated, when there is a material breach of the contract so serious it goes directly to the heart and essence of the contract, rendering the breach incurable.
The wrongful conduct consisted of plaintiff's admittedly dishonest, indefensible diversion of business to defendant's competitor.
The court looked to the law of other states, which had adopted the “Williston view,” which provides, “Unless a contract provision for termination for breach is in terms exclusive . . . it is a cumulative remedy and does not bar the ordinary remedy of termination for a breach which is material or which goes to the root of the matter or essence of the contract.” Williston, A Treatise on The Law of Contracts, § 842, 165 n.1 (3d. ed. 1962).
diability - examining physician opinion
Brownawell v. Commissioner - 3d Cir. - Dec. 9, 2008
http://www.ca3.uscourts.gov/opinarch/074405p.pdf
The appellate court entered an outright reversal and directed the payment of benefits, because
- the decision to deny benefits was improperly based on a number of erroneous facts and discredits the opinions of two examining doctors (who clearly considered her to be disabled), improperly favoring the opinion of a non-examining psychologist, and
- because substantial evidence on a fully developed record indicates that Brownawell is disabled.
http://www.ca3.uscourts.gov/opinarch/074405p.pdf
The appellate court entered an outright reversal and directed the payment of benefits, because
- the decision to deny benefits was improperly based on a number of erroneous facts and discredits the opinions of two examining doctors (who clearly considered her to be disabled), improperly favoring the opinion of a non-examining psychologist, and
- because substantial evidence on a fully developed record indicates that Brownawell is disabled.
Wednesday, January 21, 2009
birth registration - "gestational carrier"
In re I.L.P. - Superior Court - January 21, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A30027_08.pdf
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A30027_08.pdf
Friday, January 16, 2009
employment - wages - "hours worked" - donning and doffing
Lugo, et al. v. Farmers Pride, Inc. - Superior Court - January 15, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a10011_08.pdf
Dismissal of employees wage claims reversed on appeal.
The Pennsylvnaia Minimum Wage Act requires that certain minimum wages be paid for all “hours worked.” 43 P.S. § 333.104(a). The focal point of the issue before us is whether the concept of “hours worked” includes, under the PMWA, the time that appellants spent donning, doffing, and sanitizing their protective gear for their work in a chicken processing plant.
"The answer, under the facts of this case, is found in the regulations promulgated in support of the Pennsylvnaia Minimum Wage Act, which defines “hours worked” to include "time during which an employee is required by the employer to be on the premises of the employer, to be on duty or to be at the prescribed work place, time spent in traveling as part of the duties of the employee during normal working hours and time during which an employee is employed or permitted to work...." 34 Pa.Code § 231.1" Under that definition, the time spent donning, doffing, and sanitizing work gear is included in "hours worked" and is compensable.
The court also held that the employees could alternatively plead a claim for unjust enrichment.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a10011_08.pdf
Dismissal of employees wage claims reversed on appeal.
The Pennsylvnaia Minimum Wage Act requires that certain minimum wages be paid for all “hours worked.” 43 P.S. § 333.104(a). The focal point of the issue before us is whether the concept of “hours worked” includes, under the PMWA, the time that appellants spent donning, doffing, and sanitizing their protective gear for their work in a chicken processing plant.
"The answer, under the facts of this case, is found in the regulations promulgated in support of the Pennsylvnaia Minimum Wage Act, which defines “hours worked” to include "time during which an employee is required by the employer to be on the premises of the employer, to be on duty or to be at the prescribed work place, time spent in traveling as part of the duties of the employee during normal working hours and time during which an employee is employed or permitted to work...." 34 Pa.Code § 231.1" Under that definition, the time spent donning, doffing, and sanitizing work gear is included in "hours worked" and is compensable.
The court also held that the employees could alternatively plead a claim for unjust enrichment.
Wednesday, January 14, 2009
criminal conviction - expungement - factual basis and nature of plea agreement
Commonwealth v. Hanna - Superior Court - January 14, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a18026_08.pdf
Case remanded for hearing to resolve factual disputes about the factual basis and nature of the defendant's plea agreement, under which he pleaded guilty to one charge and many others were dismissed.
In the course of the opinion, the court reviewed many of the most important expungement cases, including Wexler and A.M.R., infra, as well as Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001)
General principles
“The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth. We review the decision of the trial court for an abuse of discretion.” Commonwealth v. Rodland, 871 A.2d 216, 218 (Pa. Super. 2005) (citation omitted).
This Court explained the nature of the right to expungement as follows: In this Commonwealth, there exists the right to petition for expungement of a criminal arrest record. This right is an adjunct of due process and is not dependent upon express statutory authority.
In Commonwealth v. Wexler, [431 A.2d 877, 879 (Pa. 1981)], the seminal case on expungement hearings in the Commonwealth, our Supreme Court defined the responsibilities of a court as it decides whether to expunge an arrest record: “In determining whether justice requires expungement, the court, in each particular case, must balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth's interest in preserving such records.”
The Wexler factors “include the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.” Wexler, 431 A.2d at 879.
The Commonwealth’s retention of an arrest record, in and of itself, may cause serious harm to an individual. See Commonwealth v. Malone, 366 A.2d 584, 588 (Pa. Super. 1976) (noting possible effects of maintaining an arrest record, including economic and non-economic losses and injury to reputation). Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005) (footnote omitted).
In this case, counsel argued that Appellant was 26 years old at the time of the offense, had no prior criminal record, and successfully served his probation. Appellant is a high-school graduate with college credits and technology-class credits. He is married and supports three children. According to counsel, the dismissed charges were having a serious adverse effect on Appellant’s employment prospects in the computer field.
If the defendant is convicted of a crime, he is not entitled to expungement except under the extremely limited circumstances permitted by statute. Commonwealth v. Maxwell, 737 A.2d 1243, 1244 (Pa. Super. 1999), citing 18 Pa.C.S.A. § 9122. At the opposite extreme, if the defendant is acquitted, he is generally entitled to automatic expungement of the charges for which he was acquitted. Commonwealth v. D.M., 695 A.2d 770 (Pa. 1997); cf. Rodland, 871 A.2d at 219 (where the defendant is acquitted of some charges and not others, the court should expunge the acquitted charges unless the Commonwealth “demonstrates to the trial court that expungement is impractical or impossible under the circumstances”).
"Unsurprisingly, the cases posing the most difficulty fall in between these extremes."
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a18026_08.pdf
Case remanded for hearing to resolve factual disputes about the factual basis and nature of the defendant's plea agreement, under which he pleaded guilty to one charge and many others were dismissed.
In the course of the opinion, the court reviewed many of the most important expungement cases, including Wexler and A.M.R., infra, as well as Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001)
General principles
“The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth. We review the decision of the trial court for an abuse of discretion.” Commonwealth v. Rodland, 871 A.2d 216, 218 (Pa. Super. 2005) (citation omitted).
This Court explained the nature of the right to expungement as follows: In this Commonwealth, there exists the right to petition for expungement of a criminal arrest record. This right is an adjunct of due process and is not dependent upon express statutory authority.
In Commonwealth v. Wexler, [431 A.2d 877, 879 (Pa. 1981)], the seminal case on expungement hearings in the Commonwealth, our Supreme Court defined the responsibilities of a court as it decides whether to expunge an arrest record: “In determining whether justice requires expungement, the court, in each particular case, must balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth's interest in preserving such records.”
The Wexler factors “include the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.” Wexler, 431 A.2d at 879.
The Commonwealth’s retention of an arrest record, in and of itself, may cause serious harm to an individual. See Commonwealth v. Malone, 366 A.2d 584, 588 (Pa. Super. 1976) (noting possible effects of maintaining an arrest record, including economic and non-economic losses and injury to reputation). Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005) (footnote omitted).
In this case, counsel argued that Appellant was 26 years old at the time of the offense, had no prior criminal record, and successfully served his probation. Appellant is a high-school graduate with college credits and technology-class credits. He is married and supports three children. According to counsel, the dismissed charges were having a serious adverse effect on Appellant’s employment prospects in the computer field.
If the defendant is convicted of a crime, he is not entitled to expungement except under the extremely limited circumstances permitted by statute. Commonwealth v. Maxwell, 737 A.2d 1243, 1244 (Pa. Super. 1999), citing 18 Pa.C.S.A. § 9122. At the opposite extreme, if the defendant is acquitted, he is generally entitled to automatic expungement of the charges for which he was acquitted. Commonwealth v. D.M., 695 A.2d 770 (Pa. 1997); cf. Rodland, 871 A.2d at 219 (where the defendant is acquitted of some charges and not others, the court should expunge the acquitted charges unless the Commonwealth “demonstrates to the trial court that expungement is impractical or impossible under the circumstances”).
"Unsurprisingly, the cases posing the most difficulty fall in between these extremes."
Tuesday, January 13, 2009
court - rules - children's fast-track appeals
Order Adopting Amendments to Pa.R.A.P. 102, 904, 905, 1112, 1113, 1116, 1123, 1925, 1931, 1972, 2113, 2154, 2172, 2185, 2542, 2545, and to Official Notes to Pa.R.A.P. 2572 and 3723, No. 197 Appellate Procedural Rules Docket No. 1
Opinion Type: Rules
197aplt.1.pdf
Opinion Type: Rules
197aplt.1attach.pdf
Children’s fast track appeal—Any appeal from an order involving dependency, termination of parental rights, adoptions, custody or paternity. See 42 Pa.C.S. §§ 6301 et seq.; 23 Pa.C.S. §§ 2511 et seq.; 23 Pa.C.S. §§ 2101 et seq.; 23 Pa.C.S. §§ 5301 et seq.; 23 Pa.C.S. §§ 5102 et seq.
Opinion Type: Rules
197aplt.1.pdf
Opinion Type: Rules
197aplt.1attach.pdf
Children’s fast track appeal—Any appeal from an order involving dependency, termination of parental rights, adoptions, custody or paternity. See 42 Pa.C.S. §§ 6301 et seq.; 23 Pa.C.S. §§ 2511 et seq.; 23 Pa.C.S. §§ 2101 et seq.; 23 Pa.C.S. §§ 5301 et seq.; 23 Pa.C.S. §§ 5102 et seq.
Monday, January 12, 2009
UC - vol. quit - unjust accusations - abusive employer conduct
Yellow Breeches Educ. Center v. UCBR - Cmwtlh. Court January 12, 2009 - unreported mem. decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1291CD08_1-12-09.pdf
Claimant had good cause to quit her job where the employer, in an abusive manner, unjustly accused her of insubordination.
A claimant need not indefinitely subject herself to unjust accusations and abusive conduct. First Federal Savings Bank v. UCBR, 957 A.2d 811 (Pa. Cmwlth. 2008). However, resentment of a reprimand, absent unjust accusations, profane language or abusive conduct, does not amount to a necessitous and compelling cause. Id. Here, the UCBR found that Claimant was subject to unjust accusations and abusive conduct prior to Claimant’s leaving her employment.
The court distinguished St. Barnabas, Inc. v. UCBR, 525 A.2d 885 (Pa. Cmwlth. 1987), where it had not found abusive conduct when a supervisor made an unjust accusation against an employee and, in doing so, yelled at the employee with his office door ajar. In St. Barnabas, the employer had a handbook that required employees to report problems to higher management. There was no such policy here. Moreover, unlike the employee in St. Barnabas, Claimant made a good faith effort to resolve the problems with her supervisor by speaking directly with her. Therefore, St. Barnabas does not apply.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1291CD08_1-12-09.pdf
Claimant had good cause to quit her job where the employer, in an abusive manner, unjustly accused her of insubordination.
A claimant need not indefinitely subject herself to unjust accusations and abusive conduct. First Federal Savings Bank v. UCBR, 957 A.2d 811 (Pa. Cmwlth. 2008). However, resentment of a reprimand, absent unjust accusations, profane language or abusive conduct, does not amount to a necessitous and compelling cause. Id. Here, the UCBR found that Claimant was subject to unjust accusations and abusive conduct prior to Claimant’s leaving her employment.
The court distinguished St. Barnabas, Inc. v. UCBR, 525 A.2d 885 (Pa. Cmwlth. 1987), where it had not found abusive conduct when a supervisor made an unjust accusation against an employee and, in doing so, yelled at the employee with his office door ajar. In St. Barnabas, the employer had a handbook that required employees to report problems to higher management. There was no such policy here. Moreover, unlike the employee in St. Barnabas, Claimant made a good faith effort to resolve the problems with her supervisor by speaking directly with her. Therefore, St. Barnabas does not apply.
UC - vol. quit - marital, family, or domestic reasons - fiancée
Wagner v. UCBR - Cmwlth. Court - January 12, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1023CD08_1-12-09.pdf
The court held that a claimant had good cause to quit his job under the following "marital, family or domestic reasons."
He took 28 days leave from his job in Iraq to lend support to his fiancée, who was dealing with a contentious custody battle with an abusive ex-boyfriend, and a child who suffered from a congenital heart defect and microcephaly. Claimant left to return to Iraq but found that he was unable to handle the issues in his home life from that significant distance. He spoke to his manager to try to get a job in the US but was told none were available and that, in any event, he was not eligible for such a job even it it existed. He then resigned and returned home.
Family obligations can be sufficiently necessitous and compelling to entitle a claimant to unemployment compensation benefits. Wallace v. UCBR, 393 A.2d 43 (Pa. Cmwlth. 1978) (declared unconstitutional the section of the UC Law that disqualified from benefits claimants who voluntarily terminate their employment for marital, filial or domestic reasons).
The Supreme Court in Taylor v. UCBR, 474 Pa. 351, 359, 378 A.2d 829, 833 (1977) held that if a worker leaves his employment when he is compelled to do so by necessitous circumstances or because of legal or family obligations, his leaving is voluntary with good cause, and under the act he is entitled to benefits. The pressure of necessity, of legal duty, or family obligations, or other overpowering circumstances and his capitulation to them transform what is ostensibly voluntary unemployment into involuntary unemployment. Accord, Bliley Elec. Co. v. UCBR, 45 A.2d 898 (Pa. Super. 1946)); Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000) (claimant when he quit his job to return to live with his son, who was suffering from emotional and behavioral problems in his absence); Speck v. UCBR, 680 A.2d 27 (Pa. Cmwlth. 1996) (claimant quit his job when a transfer created a daily commute consisting of 337 miles each way and he was newly married, and the only child of a parent who needed his assistance from time to time due to a heart condition.)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1023CD08_1-12-09.pdf
The court held that a claimant had good cause to quit his job under the following "marital, family or domestic reasons."
He took 28 days leave from his job in Iraq to lend support to his fiancée, who was dealing with a contentious custody battle with an abusive ex-boyfriend, and a child who suffered from a congenital heart defect and microcephaly. Claimant left to return to Iraq but found that he was unable to handle the issues in his home life from that significant distance. He spoke to his manager to try to get a job in the US but was told none were available and that, in any event, he was not eligible for such a job even it it existed. He then resigned and returned home.
Family obligations can be sufficiently necessitous and compelling to entitle a claimant to unemployment compensation benefits. Wallace v. UCBR, 393 A.2d 43 (Pa. Cmwlth. 1978) (declared unconstitutional the section of the UC Law that disqualified from benefits claimants who voluntarily terminate their employment for marital, filial or domestic reasons).
The Supreme Court in Taylor v. UCBR, 474 Pa. 351, 359, 378 A.2d 829, 833 (1977) held that if a worker leaves his employment when he is compelled to do so by necessitous circumstances or because of legal or family obligations, his leaving is voluntary with good cause, and under the act he is entitled to benefits. The pressure of necessity, of legal duty, or family obligations, or other overpowering circumstances and his capitulation to them transform what is ostensibly voluntary unemployment into involuntary unemployment. Accord, Bliley Elec. Co. v. UCBR, 45 A.2d 898 (Pa. Super. 1946)); Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000) (claimant when he quit his job to return to live with his son, who was suffering from emotional and behavioral problems in his absence); Speck v. UCBR, 680 A.2d 27 (Pa. Cmwlth. 1996) (claimant quit his job when a transfer created a daily commute consisting of 337 miles each way and he was newly married, and the only child of a parent who needed his assistance from time to time due to a heart condition.)
Friday, January 09, 2009
admin. law - due process - discovery
Vaders v. State Horse Racing Commn. - Cmwlth. Cour - January 9, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/703CD08_1-9-09.pdf
due process - In an administrative hearing, due process requires, at a minimum, notice and the opportunity to be heard. See Section 504 of the Administrative Agency Law, 2 Pa.C.S. § 504; Grossman v. State Bd. of Psychology, 825 A.2d 748 (Pa. Cmwlth. 2003); and Gruff v. Dep’t of State, 913 A.2d 1008 (Pa. Cmwlth. 2006).
discovery - Discovery, as provided for in the Pennsylvania Rules of Civil Procedure for court proceedings, is not made available in administrative proceedings.
Rule 35.142(a) of the General Rules of Admin. Practice and Procedure 1 Pa. Code § 35.142(a) http://www.pacode.com/secure/data/001/chapter35/s35.142.html allows parties to request subpoenas for the attendance of witnesses or production of documents upon written application to the agency’s head or oral application at a hearing. Weinberg v. Ins. Dep’t, 398 A.2d 1120 (Pa. Cmwlth. 1979).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/703CD08_1-9-09.pdf
due process - In an administrative hearing, due process requires, at a minimum, notice and the opportunity to be heard. See Section 504 of the Administrative Agency Law, 2 Pa.C.S. § 504; Grossman v. State Bd. of Psychology, 825 A.2d 748 (Pa. Cmwlth. 2003); and Gruff v. Dep’t of State, 913 A.2d 1008 (Pa. Cmwlth. 2006).
discovery - Discovery, as provided for in the Pennsylvania Rules of Civil Procedure for court proceedings, is not made available in administrative proceedings.
Rule 35.142(a) of the General Rules of Admin. Practice and Procedure 1 Pa. Code § 35.142(a) http://www.pacode.com/secure/data/001/chapter35/s35.142.html allows parties to request subpoenas for the attendance of witnesses or production of documents upon written application to the agency’s head or oral application at a hearing. Weinberg v. Ins. Dep’t, 398 A.2d 1120 (Pa. Cmwlth. 1979).
UC - willful misconduct - failure to follow employer directive to attent meeting
Bonawitz v. UCBR - Cmwlth Court - Janaury 9, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1027CD08_1-9-09.pdf
“Where an employee is discharged for refusing or failing to follow an employer’s directive, both the reasonableness of the demand and the reasonableness of the employee’s refusal must be examined.” Dougherty v. UCBR, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).
Where an employee’s action is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. UCBR, 450 A.2d 305 (Pa. Cmwlth. 1982). “In other words, if there was ‘good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.” Id. at 308 (citation omitted).
Under some circumstances, a claimant’s mistaken belief can constitute good cause justifying otherwise willful misconduct. Caterpillar, Inc. v. UCBR, 654 A.2d 199 (Pa. Cmwlth. 1995). However, incorrect subjective beliefs as to legal rights do not establish good cause for willful misconduct. Simpson.
Here, the Board did not find that Claimant had a mistaken belief as to the subject of the meeting. Instead, the Board determined Claimant failed to carry his burden to establish good cause for two reasons: [T]he employer credibly established that the claimant had proper representation present since a union steward was already in his office and another one was on the way.
Furthermore, the employer stated that no union representation was necessary, since the employer was not required to have union representation at a counseling session. Clearly, the Board made all credibility findings in favor of the Employer and none in favor of the Claimant. Also, the Board reasoned that any need for union representation was satisfied, regardless of the subject of the meeting.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1027CD08_1-9-09.pdf
“Where an employee is discharged for refusing or failing to follow an employer’s directive, both the reasonableness of the demand and the reasonableness of the employee’s refusal must be examined.” Dougherty v. UCBR, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).
Where an employee’s action is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. UCBR, 450 A.2d 305 (Pa. Cmwlth. 1982). “In other words, if there was ‘good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.” Id. at 308 (citation omitted).
Under some circumstances, a claimant’s mistaken belief can constitute good cause justifying otherwise willful misconduct. Caterpillar, Inc. v. UCBR, 654 A.2d 199 (Pa. Cmwlth. 1995). However, incorrect subjective beliefs as to legal rights do not establish good cause for willful misconduct. Simpson.
Here, the Board did not find that Claimant had a mistaken belief as to the subject of the meeting. Instead, the Board determined Claimant failed to carry his burden to establish good cause for two reasons: [T]he employer credibly established that the claimant had proper representation present since a union steward was already in his office and another one was on the way.
Furthermore, the employer stated that no union representation was necessary, since the employer was not required to have union representation at a counseling session. Clearly, the Board made all credibility findings in favor of the Employer and none in favor of the Claimant. Also, the Board reasoned that any need for union representation was satisfied, regardless of the subject of the meeting.
UC- willful misconduct - intentional v. negligent conduct
Appleyard v. UCBR - Cmwlth. Court - January 8, 2009 - unreported en banc 4-3 decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/653CD08_1-8-09.pdf
Pharmacy technician held guilty of willful misconduct for failure to run prescription through scanning device, even absent evidence or finding that she acted either intentionly or mistakenly. The UCBR found that she intentionally skipped the scanning process to save time, in a rush situation. Given that, the court held that it was within the power of the Board to infer that claimant's actions were willful and not negligent or inadvertent.
"Given that no one other than Claimant knew whether she intentionally or mistakenly failed to follow the procedure, we cannot say the Board’s inference was unreasonable. Thus, given the Board’s role as the ultimate finder of fact, we are bound by the Board’s reasonable inference that Claimant deliberately violated the scanning policy because she was in such a hurry. In short, Claimant’s conduct, as a matter of law, constituted willful misconduct."
Dissent - There was a strong dissent, which cited employer testimony, admitting specifically ("I can't answer that.") that it could not determine, from what it knew, whether claimant had refused to follow the procedure or forgot to do so, or whether claimant's actions were unintentional and inadvertent."
" Employer’s witness was unable to testify as to whether Claimant deliberately violated Employer’s scanning rule. In fact, Employer’s witness stated that he hoped Claimant’s violation of the rule was not intentional. Such testimony is ironic given Employer’s burden to prove that Claimant’s violation of the scanning policy was intentional.
"An employer cannot establish willful misconduct merely by showing that a claimant committed a negligent act. Navickas v. UCBR, 567 Pa. 298, 787 A.2d 284 (2001). Thus, Employer could only meet its burden of proving a deliberate violation of the scanning rule through Claimant’s testimony. Claimant testified in her defense of the charge of willful misconduct that she grabbed the medicine without first scanning the bottle because she was “in a rush” to fill the prescription so that the delivery driver could leave on time.
"Claimant’s testimony establishes that her intention was to further Employer’s interest in seeing that customers receive their prescriptions in a timely manner.4 However, Claimant does not indicate whether, while in a rush to provide good customer service, Claimant deliberately skipped the scanning to save time or merely forgot about the relatively new scanning procedure. Thus, it is impossible to determine from Claimant’s testimony whether her violation of Employer’s scanning policy was intentional or negligent. The majority states, “Significantly … Claimant did not respond that she had forgotten to scan the medicine bottle or that her failure was inadvertent.” However, it was not Claimant’s burden to prove that her violation of the scanning policy was unintentional."
" Employer had to prove that Claimant deliberately violated the scanning rule, but Employer never asked Claimant whether she gave any thought to the rule while she was rushing to fill the prescription. Thus, I submit that Employer failed to meet its burden of proof.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/653CD08_1-8-09.pdf
Pharmacy technician held guilty of willful misconduct for failure to run prescription through scanning device, even absent evidence or finding that she acted either intentionly or mistakenly. The UCBR found that she intentionally skipped the scanning process to save time, in a rush situation. Given that, the court held that it was within the power of the Board to infer that claimant's actions were willful and not negligent or inadvertent.
"Given that no one other than Claimant knew whether she intentionally or mistakenly failed to follow the procedure, we cannot say the Board’s inference was unreasonable. Thus, given the Board’s role as the ultimate finder of fact, we are bound by the Board’s reasonable inference that Claimant deliberately violated the scanning policy because she was in such a hurry. In short, Claimant’s conduct, as a matter of law, constituted willful misconduct."
Dissent - There was a strong dissent, which cited employer testimony, admitting specifically ("I can't answer that.") that it could not determine, from what it knew, whether claimant had refused to follow the procedure or forgot to do so, or whether claimant's actions were unintentional and inadvertent."
" Employer’s witness was unable to testify as to whether Claimant deliberately violated Employer’s scanning rule. In fact, Employer’s witness stated that he hoped Claimant’s violation of the rule was not intentional. Such testimony is ironic given Employer’s burden to prove that Claimant’s violation of the scanning policy was intentional.
"An employer cannot establish willful misconduct merely by showing that a claimant committed a negligent act. Navickas v. UCBR, 567 Pa. 298, 787 A.2d 284 (2001). Thus, Employer could only meet its burden of proving a deliberate violation of the scanning rule through Claimant’s testimony. Claimant testified in her defense of the charge of willful misconduct that she grabbed the medicine without first scanning the bottle because she was “in a rush” to fill the prescription so that the delivery driver could leave on time.
"Claimant’s testimony establishes that her intention was to further Employer’s interest in seeing that customers receive their prescriptions in a timely manner.4 However, Claimant does not indicate whether, while in a rush to provide good customer service, Claimant deliberately skipped the scanning to save time or merely forgot about the relatively new scanning procedure. Thus, it is impossible to determine from Claimant’s testimony whether her violation of Employer’s scanning policy was intentional or negligent. The majority states, “Significantly … Claimant did not respond that she had forgotten to scan the medicine bottle or that her failure was inadvertent.” However, it was not Claimant’s burden to prove that her violation of the scanning policy was unintentional."
" Employer had to prove that Claimant deliberately violated the scanning rule, but Employer never asked Claimant whether she gave any thought to the rule while she was rushing to fill the prescription. Thus, I submit that Employer failed to meet its burden of proof.
Thursday, January 08, 2009
HEMAP - reasonable prospect
Abess v. PHFA - Cmwlth. Court - January 8, 2009 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1035CD08_1-8-09.pdf
Applicant denied HEMAP mortgage loan assistance for failure to prove that he could resume full mortgage payments within applicable time.
To qualify for a HEMAP loan, a homeowner must meet all of the eligibility requirements set forth in Section 404c, 35 P.S. §1680.404c of the Homeowner’s Emergency Mortgage Assistance Act (Act), Act of December 23, 1983, P.L. 385, No. 91, as amended, 35 P.S. §1680.401c-§1680.410c.
That section provides that: (a) No assistance may be made with respect to a mortgage or mortgagor under this article unless all of the following are established:
(5) The agency has determined that there is a reasonable prospect that the mortgagor will be able to resume full mortgage payments within twenty-four (24) months after the beginning of the period for which assistance payments are provided under this article and pay the mortgage or mortgages in full by its maturity date or by a later date agreed to by the mortgagee or mortgagees for completing mortgage payments. (Emphasis added.) Section 404c of the Act, 35 P.S. §1680.404c(a)(5). (emphasis added)
Applicant's evidence about his work record showed that he had been self-employed in a number of businesses, but that none of those businesses generated any significant income. "Given the fact that those businesses failed to generate any substantial income in the past, and the fact that Petitioner’s expenses and mortgage payments far exceeded his income, the Agency had no other choice but to find that there was no reasonable prospect for him to resume full mortgage payments within 24 months." See Cullins v. PHFA, 623 A.2d 951 (Pa. Cmwlth. 1993); Koch v. PHFA, 505 A.2d 649 (Pa. Cmwlth. 1986).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1035CD08_1-8-09.pdf
Applicant denied HEMAP mortgage loan assistance for failure to prove that he could resume full mortgage payments within applicable time.
To qualify for a HEMAP loan, a homeowner must meet all of the eligibility requirements set forth in Section 404c, 35 P.S. §1680.404c of the Homeowner’s Emergency Mortgage Assistance Act (Act), Act of December 23, 1983, P.L. 385, No. 91, as amended, 35 P.S. §1680.401c-§1680.410c.
That section provides that: (a) No assistance may be made with respect to a mortgage or mortgagor under this article unless all of the following are established:
(5) The agency has determined that there is a reasonable prospect that the mortgagor will be able to resume full mortgage payments within twenty-four (24) months after the beginning of the period for which assistance payments are provided under this article and pay the mortgage or mortgages in full by its maturity date or by a later date agreed to by the mortgagee or mortgagees for completing mortgage payments. (Emphasis added.) Section 404c of the Act, 35 P.S. §1680.404c(a)(5). (emphasis added)
Applicant's evidence about his work record showed that he had been self-employed in a number of businesses, but that none of those businesses generated any significant income. "Given the fact that those businesses failed to generate any substantial income in the past, and the fact that Petitioner’s expenses and mortgage payments far exceeded his income, the Agency had no other choice but to find that there was no reasonable prospect for him to resume full mortgage payments within 24 months." See Cullins v. PHFA, 623 A.2d 951 (Pa. Cmwlth. 1993); Koch v. PHFA, 505 A.2d 649 (Pa. Cmwlth. 1986).
Monday, January 05, 2009
zoning - standing - "close proximity"
Laughman v. Zoning Hearing Board - Cmwlth. Court - January 5, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/159CD08_1-5-09.pdf
Property was held to be not in "close proximity" to the zoning area, therefore owner did not have standing to question the zoning decision.
Generally, in order to establish standing as an “aggrieved person,” it must be shown that the person has a substantial, direct and immediate interest in the claim sought to be litigated. A substantial interest is one in which there is some discernible adverse effect to some interest other than an abstract interest all citizens have, and a direct interest requires a showing that the matter complained of causes harm to the party’s interest, though not necessarily a pecuniary interest.
Immediacy requires that the interest is something more than a “remote” consequence and centers on a causal nexus between the action complained of and the injury to the party challenging it....For a party to be “aggrieved,” the interest of the party who will be affected by the alleged illegal law must be distinguishable from the interests shared by all citizens.
However, the Commonwealth Court has held tat a property owner need not establish pecuniary or financial loss if his property is located in close proximity to the subject property because the zoning decision is presumed to have an effect on the property owner’s property.
Obviously, property that is adjacent to or abuts the zoning area in question is in close proximity for standing purposes. In this case, the petitioner's commercial properties are located two miles from the district, his personal residence is almost a full mile away, and his rental residential properties are 8/10 of a mile awayict. Because these properties are not in close proximity to the subject property, without a showing of some sort of direct injury, he lacks standing to challenge the zoning amendment.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/159CD08_1-5-09.pdf
Property was held to be not in "close proximity" to the zoning area, therefore owner did not have standing to question the zoning decision.
Generally, in order to establish standing as an “aggrieved person,” it must be shown that the person has a substantial, direct and immediate interest in the claim sought to be litigated. A substantial interest is one in which there is some discernible adverse effect to some interest other than an abstract interest all citizens have, and a direct interest requires a showing that the matter complained of causes harm to the party’s interest, though not necessarily a pecuniary interest.
Immediacy requires that the interest is something more than a “remote” consequence and centers on a causal nexus between the action complained of and the injury to the party challenging it....For a party to be “aggrieved,” the interest of the party who will be affected by the alleged illegal law must be distinguishable from the interests shared by all citizens.
However, the Commonwealth Court has held tat a property owner need not establish pecuniary or financial loss if his property is located in close proximity to the subject property because the zoning decision is presumed to have an effect on the property owner’s property.
Obviously, property that is adjacent to or abuts the zoning area in question is in close proximity for standing purposes. In this case, the petitioner's commercial properties are located two miles from the district, his personal residence is almost a full mile away, and his rental residential properties are 8/10 of a mile awayict. Because these properties are not in close proximity to the subject property, without a showing of some sort of direct injury, he lacks standing to challenge the zoning amendment.
tax sale - standing
Fongsue v. Tax Claim Bureau - Cmwlth. Court - January 5, 2008 - unreported mem. decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1229CD07_1-5-09.pdf
Party who purchased property subsequent to tax claim tax does not have standing to petition to set aside the sale, since he was not the "owner" under 72 P.S. § 5860.607(a) at the time of the tax sale.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1229CD07_1-5-09.pdf
Party who purchased property subsequent to tax claim tax does not have standing to petition to set aside the sale, since he was not the "owner" under 72 P.S. § 5860.607(a) at the time of the tax sale.
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