Soto v. Astrue - ED Pa. - July 28, 2009 (24 pp.)
http://www.paed.uscourts.gov/documents/opinions/09D0896P.pdf
The court reversed and granted benefits outright.
The ALJ finding that claimant can do light work is not supported by substantial evidence. The ALJ improperly gave "considerable weight" to the medical opinions of the examining physician and the over that of the treating physician, accorded only minimal weight, in spite of "voluminous evidence in the record provided by the treating physician" whose opinion was dismissed with a single sentence. The ALJ's explanation for this decision was inadequate and improper, as explained at length in the opinion.
In addition, the hypothetical question to the vocational expert was deficient.
Reversal instead of remand -- When this Court determines that the ALJ's decision is not supported by substantial evidence, it also has the power to reverse and direct an award of benefits. Allen v. Bowen, 881 F.2d 37, 43 (3d Cir. 1989) (citing Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984)). The district court should award benefits only when “the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22.
“When faced with such cases, it is unreasonable for a court to give the ALJ another opportunity to consider new evidence concerning the disability because the administrative proceeding would result only in further delay in the receipt of benefits.” Id. at 222; see also Morales, 225 F.3d at 320... In this case the record has been fully developed up to the time of the ALJ’s decision. The record contains extensive evidence from Plaintiff’s treating physicians, particularly notes for three years of treatment, and from Plaintiff’s several hospitalizations and physical therapy sessions. The ALJ held a hearing during which Plaintiff and a vocational expert testified.
Based on the analysis in the previous section, this Court has concluded that the opinion of treating physician, which concluded Plaintiff was unable to work, should be given substantial weight. Furthermore, although this Court concluded that the ALJ did not properly consider the impact Plaintiff’s necessary treatment will have on his ability to work, the vocational expert did testify on that issue, concluding that Plaintiff would be unemployable if he continued with the course of treatments he had followed for the past several years.
Given the well-developed record, no additional information is necessary to determine Plaintiff’s eligibility for benefits and thus there is no reason to remand this case to the ALJ for further consideration. Thus, this Court finds, based on the opinion of the primary treating physician, the medical evidence from other treating physicians, the responses of the vocational expert, and the credible testimony of Plaintiff, that Plaintiff is disabled. As such, this Court will award Plaintiff disability benefits.
Thursday, July 30, 2009
UC - voluntary quit - conscious intention to quit
Ponce v. UCBR - July 30, 2009 - Cmwlth. Court - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2407CD08_7-30-09.pdf
The Court reversed the UCBR and held that claimant did not quit his job but rather was terminated by the employer for reasons which did not constitute willful misconduct.
Claimant was absent for several days following an alcohol overdose, brought on by a heated confrontation with the employer. Anything he might have said to the contrary to his wife while intoxicated cannot be used against him. "Statements made to one’s spouse while intoxicated do not constitute a resignation of employment. Accordingly, Claimant did not demonstrate a clear intent to resign his employment."
Moreover, the "Employer’s actions demonstrate that even if Employer believed that Claimant quit [his job] Employer did not accept his resignation but rather, continued to consider him an employee....Claimant’s testimony, also uncontroverted, established that when Lentz was able to speak to Claimant personally, his first question was when Claimant would be available to return to work. These comments are those of an employer anxious for a sick or injured employee to return to work, not those of an employer who believes a disgruntled employee has quit. Because Employer did not accept Claimant’s alleged resignation, it had no operative effect. Therefore, Claimant did not voluntarily quit."
The court found, rather, that the employer fired claimant when they told claimant that they did not want him to return to work when he was released from the hospital. This occurred three days after Claimant’s alleged resignation. During that three-day period, [employer] had consistently treated Claimant as an employee, never indicating that Employer accepted his resignation. Accordingly, it was the decision of the employer committee that caused Claimant’s separation from employment.... Employer did not contend that Claimant was ineligible by reason of his willful misconduct, and the Referee made no finding in that regard. Accordingly, the issue is not before us."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2407CD08_7-30-09.pdf
The Court reversed the UCBR and held that claimant did not quit his job but rather was terminated by the employer for reasons which did not constitute willful misconduct.
Claimant was absent for several days following an alcohol overdose, brought on by a heated confrontation with the employer. Anything he might have said to the contrary to his wife while intoxicated cannot be used against him. "Statements made to one’s spouse while intoxicated do not constitute a resignation of employment. Accordingly, Claimant did not demonstrate a clear intent to resign his employment."
Moreover, the "Employer’s actions demonstrate that even if Employer believed that Claimant quit [his job] Employer did not accept his resignation but rather, continued to consider him an employee....Claimant’s testimony, also uncontroverted, established that when Lentz was able to speak to Claimant personally, his first question was when Claimant would be available to return to work. These comments are those of an employer anxious for a sick or injured employee to return to work, not those of an employer who believes a disgruntled employee has quit. Because Employer did not accept Claimant’s alleged resignation, it had no operative effect. Therefore, Claimant did not voluntarily quit."
The court found, rather, that the employer fired claimant when they told claimant that they did not want him to return to work when he was released from the hospital. This occurred three days after Claimant’s alleged resignation. During that three-day period, [employer] had consistently treated Claimant as an employee, never indicating that Employer accepted his resignation. Accordingly, it was the decision of the employer committee that caused Claimant’s separation from employment.... Employer did not contend that Claimant was ineligible by reason of his willful misconduct, and the Referee made no finding in that regard. Accordingly, the issue is not before us."
Tuesday, July 28, 2009
federal courts - pleading - Twombly and Iqbal
Kamara v. Columbia Home Loans - 07/24/2009 - ED Pa.
http://www.paed.uscourts.gov/documents/opinions/09D0875P.pdf
The current standard for adequately pleading a claim was set out in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Under Twombly, to state a claim, a party’s factual allegations must raise a right to relief above the speculative level. Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (citing Twombly, 550 U.S. at 555).
The Supreme Court recently reaffirmed and clarified the Twombly standard in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The Iqbal Court explained that although a plaintiff is not required to make “detailed factual allegations,” Federal Rule 8 demands more than an “unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 1949.
To survive a motion to dismiss, a party cannot allege “labels and conclusions.” Twombly, 550 U.S. at 555. Rather, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is “plausible on its face.” Iqbal, 1927 S. Ct. at 1949.
A claim has facial plausibility when the plaintiff pleads sufficient factual content to allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id.
The Supreme Court has explained that “two working principles” underlie a motion to dismiss inquiry. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. at 1950.
Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. Determining whether a complaint states a plausible claim for relief is “a context specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but has not “shown,” that the pleader is entitled to relief within the meaning of Rule 8(a)(2).
http://www.paed.uscourts.gov/documents/opinions/09D0875P.pdf
The current standard for adequately pleading a claim was set out in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Under Twombly, to state a claim, a party’s factual allegations must raise a right to relief above the speculative level. Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (citing Twombly, 550 U.S. at 555).
The Supreme Court recently reaffirmed and clarified the Twombly standard in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The Iqbal Court explained that although a plaintiff is not required to make “detailed factual allegations,” Federal Rule 8 demands more than an “unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 1949.
To survive a motion to dismiss, a party cannot allege “labels and conclusions.” Twombly, 550 U.S. at 555. Rather, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is “plausible on its face.” Iqbal, 1927 S. Ct. at 1949.
A claim has facial plausibility when the plaintiff pleads sufficient factual content to allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id.
The Supreme Court has explained that “two working principles” underlie a motion to dismiss inquiry. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. at 1950.
Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. Determining whether a complaint states a plausible claim for relief is “a context specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but has not “shown,” that the pleader is entitled to relief within the meaning of Rule 8(a)(2).
Monday, July 27, 2009
housing authorities - sovereign immunity - tort suits
Rhoads v. Phila. Housing Authority - July 2009 - Cmwlth. Court (2-1)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1966CD08_7-27-09.pdf
Held: The housing authority is a "commonwealth agency" entitled to sovereign immunity under 42 Pa. C.S. sec. 8522 from a suit against PHA for intentional tort claims of wrongful use of civil proceedings and fraudulent misrepresentation, and demands for punitive damages based on allegations that the PHA filed a false claim against plaintiff, in another suit, for breach of contract.
The dissent argued that the PHA is not a "commonwealth agency" bur rather a "local authority," not entitled to immunity under the statute.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1966CD08_7-27-09.pdf
Held: The housing authority is a "commonwealth agency" entitled to sovereign immunity under 42 Pa. C.S. sec. 8522 from a suit against PHA for intentional tort claims of wrongful use of civil proceedings and fraudulent misrepresentation, and demands for punitive damages based on allegations that the PHA filed a false claim against plaintiff, in another suit, for breach of contract.
The dissent argued that the PHA is not a "commonwealth agency" bur rather a "local authority," not entitled to immunity under the statute.
Friday, July 24, 2009
subpoenas - service - minors - Pa. R.C.P. 234.2
In Re: Amendment of Rule 234.2 - Issuance and Service of Subpoenas; No. 514 Civil Procedural Rules Docket, Opinion By: per curiam, Posted By: W.D. Prothonotary
Date Rendered: 7/23/2009, Date Posted: 7/23/2009
Opinion Type: Rules 514civ.pdf
Date Rendered: 7/23/2009, Date Posted: 7/23/2009
Opinion Type: Rules 514civ.attach.pdf
Date Rendered: 7/23/2009, Date Posted: 7/23/2009
Opinion Type: Rules 514civ.rpt.pdf
Explanatory Comment
To provide greater protection to minors, Rule 234.2 has been amended to provide a separate procedure for the issuance and service of a subpoena on a witness who is a minor. The amendment provides that a subpoena must be served upon the minor and the guardian of the minor. A subpoena may be served on a minor who is a witness without also serving the guardian if a court has reviewed and given prior approval for the issuance of the subpoena upon good cause shown.
Thursday, July 23, 2009
federal courts - attorney fees - effect of negotiations
Lohman v. Duryea Borough - 3d Circuit - July 23, 2009
http://www.ca3.uscourts.gov/opinarch/083524p.pdf
"Settlement negotiations may be relevant in measuring success, and, if so, are clearly only one factor to be considered in the award of fees." (emphasis in original)
http://www.ca3.uscourts.gov/opinarch/083524p.pdf
"Settlement negotiations may be relevant in measuring success, and, if so, are clearly only one factor to be considered in the award of fees." (emphasis in original)
abuse - expungement - recanted allegations
Bucks County CYS v. DPW - Cmwlth. Court - July 23, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2193CD08_7-23-09.pdf
Court affirmed the admin. decision to expunge CYS finding of abuse, based mostly on the 14 year-old alleged victim's testimony at the hearing, at which she recanted prior statements alleging sexual abuse by her father..
The court rejected the CYS claims that it was error to credit the recantation of A.G. and ignore the testimony of other witnesses. CYS has the burden of establishing by substantial evidence that an indicated report of child abuse is accurate. Bucks County CYS v. DPW, 808 A.2d 990, 993 (Pa. Cmwlth. 2002). If CYS fails to sustain its burden, the request for expungement will be granted. Id.
When the fact finder has determined the weight and the credibility of evidence, the court will not disturb such determinations on review. S.T. v. DPW, 681 A.2d 853, 856 (Pa. Cmwlth. 1996), appeal denied, 547 Pa. 747, 690 A.2d 1165 (1997).
In this case, the ALJ determined that the testimony of A.G., in which she recanted her previous accusations, was credible. Although CYS argues that A.G. was lying when she recanted the allegations, the ALJ and BHA determined otherwise. The court is bound by such determination.
Having credited the testimony of A.G., only the hearsay testimony of the CYS investigator, the grandmother and another person remained. Hearsay evidence, even if admissible and not objected to, does not alone constitute substantial evidence. A.Y. v. DPW, 537 Pa. 116, 641 A.2d 1148 (1994).
__._,_.___
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2193CD08_7-23-09.pdf
Court affirmed the admin. decision to expunge CYS finding of abuse, based mostly on the 14 year-old alleged victim's testimony at the hearing, at which she recanted prior statements alleging sexual abuse by her father..
The court rejected the CYS claims that it was error to credit the recantation of A.G. and ignore the testimony of other witnesses. CYS has the burden of establishing by substantial evidence that an indicated report of child abuse is accurate. Bucks County CYS v. DPW, 808 A.2d 990, 993 (Pa. Cmwlth. 2002). If CYS fails to sustain its burden, the request for expungement will be granted. Id.
When the fact finder has determined the weight and the credibility of evidence, the court will not disturb such determinations on review. S.T. v. DPW, 681 A.2d 853, 856 (Pa. Cmwlth. 1996), appeal denied, 547 Pa. 747, 690 A.2d 1165 (1997).
In this case, the ALJ determined that the testimony of A.G., in which she recanted her previous accusations, was credible. Although CYS argues that A.G. was lying when she recanted the allegations, the ALJ and BHA determined otherwise. The court is bound by such determination.
Having credited the testimony of A.G., only the hearsay testimony of the CYS investigator, the grandmother and another person remained. Hearsay evidence, even if admissible and not objected to, does not alone constitute substantial evidence. A.Y. v. DPW, 537 Pa. 116, 641 A.2d 1148 (1994).
__._,_.___
Wednesday, July 22, 2009
dependency - foster parents - intervention - standing
In the Interest of J.S. - Superior Court - July 21, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A12024_09.pdf
Foster parents do not have standing to intervene in a dependency proceeding under 42 Pa.C.S. § 6336.1, even where the placement goal was changed from reunification with parents to adoption to subsidized permanent legal custodianship.
The grounds for standing in dependency proceedings are narrow. “Only a ‘party’ has the right to participate, to be heard on his or her own behalf, to introduce evidence, and/or to cross-examine witnesses.” Id. at 3 As CYF accurately observes, Foster Parents did not stand in loco parentis because their status as foster parents was subordinate to CYF, who maintained legal custody and was primarily responsible for the child’s care and custody. In re N.S., 845 A.2d 884, 887 (Pa.Super. 2004); In re Adoption of Crystal D.R., 480 A.2d 1146, 1151-52 (Pa.Super. 1984).
In L.C., II, this Court identified the only three classes of individuals that are conferred standing to participate, introduce evidence, be heard on their own behalf, and cross-examine witnesses during a dependency hearing: “(1) the parents of the juvenile whose dependency status is at issue; (2) the legal custodian of the juvenile whose dependency status is at issue, or (3) the person whose care and control of the juvenile is in question.” We further explained, “These categories logically stem from the fact . . . the court has the authority to remove a [dependent] child from the custody of his or her parents or legal custodian, [and] [d]ue process requires that the child’s legal caregiver . . . be able to participate and present argument in the dependency proceedings.” Id. at 381.
Here, Foster Parents do not fall within any of the foregoing definitions of a “party.” They are not J.S.’s parents. They are not the child’s legal custodian. It is beyond argument that CYF has maintained legal custody of J.S. since the adjudication of dependency on October 20, 2005. Finally, Foster Parents are not the people whose care and control is in question; herein, it is Mother and Father whose care is being challenged.
Accordingly, Foster Parents do not have standing in the underlying dependency proceeding. See In re L.C., II, supra; See also In re F.B., 927 A.2d 268, 273 (Pa.Super. 2007).
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A12024_09.pdf
Foster parents do not have standing to intervene in a dependency proceeding under 42 Pa.C.S. § 6336.1, even where the placement goal was changed from reunification with parents to adoption to subsidized permanent legal custodianship.
The grounds for standing in dependency proceedings are narrow. “Only a ‘party’ has the right to participate, to be heard on his or her own behalf, to introduce evidence, and/or to cross-examine witnesses.” Id. at 3 As CYF accurately observes, Foster Parents did not stand in loco parentis because their status as foster parents was subordinate to CYF, who maintained legal custody and was primarily responsible for the child’s care and custody. In re N.S., 845 A.2d 884, 887 (Pa.Super. 2004); In re Adoption of Crystal D.R., 480 A.2d 1146, 1151-52 (Pa.Super. 1984).
In L.C., II, this Court identified the only three classes of individuals that are conferred standing to participate, introduce evidence, be heard on their own behalf, and cross-examine witnesses during a dependency hearing: “(1) the parents of the juvenile whose dependency status is at issue; (2) the legal custodian of the juvenile whose dependency status is at issue, or (3) the person whose care and control of the juvenile is in question.” We further explained, “These categories logically stem from the fact . . . the court has the authority to remove a [dependent] child from the custody of his or her parents or legal custodian, [and] [d]ue process requires that the child’s legal caregiver . . . be able to participate and present argument in the dependency proceedings.” Id. at 381.
Here, Foster Parents do not fall within any of the foregoing definitions of a “party.” They are not J.S.’s parents. They are not the child’s legal custodian. It is beyond argument that CYF has maintained legal custody of J.S. since the adjudication of dependency on October 20, 2005. Finally, Foster Parents are not the people whose care and control is in question; herein, it is Mother and Father whose care is being challenged.
Accordingly, Foster Parents do not have standing in the underlying dependency proceeding. See In re L.C., II, supra; See also In re F.B., 927 A.2d 268, 273 (Pa.Super. 2007).
Tuesday, July 21, 2009
employment - wrongful discharge - sex discrimination - covered employers
Weaver v. Harpster and Shipman - Pa. Supreme Court - July 20, 2009 (5-2 decision)
http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-53-2008mo.pdf
Under the Pennsylvania Human Relations Act (PHRA), 43 P.S. §§ 951-963, employers with four or more employees are prohibited from discriminating against their employees on the basis of sex. See 43 P.S. §§ 954 (defining employer), 955 (listing “unlawful discriminatory practices”).
At common law, an employer may terminate an at-will employee for any reason unless that reason violates a clear mandate of public policy emanating from either the Pennsylvania Constitution or statutory pronouncements.
In this case, we address the intersection of the PHRA and the public policy exception to at-will employment, namely, whether an employer with fewer than four employees, although not subject to the PHRA’s prohibition against sexual discrimination, nevertheless is prohibited from discriminating against an employee on the basis of sex.
Because the PHRA reflects the unambiguous policy determination by the legislature that employers with fewer than four employees will not be liable for sex discrimination in Pennsylvania, we are constrained to conclude that a common law claim for wrongful discharge, resulting from sex discrimination, will not lie against those employers. We therefore reverse the Superior Court.
Dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-53-2008do.pdf
I believe the Pennsylvania Constitution, supported by statutory law, makes it unmistakably clear that the public policy of our Commonwealth simply does not tolerate invidious gender discrimination here in the form of sexual harassment with respect to continued employment.
For the reasons stated more fully below, while I would reaffirm the vitality of the at-will doctrine in our Commonwealth, I believe that we should join other states that have considered similar issues and recognize a cause of action for wrongful discharge, for those individuals who fall outside of the coverage of the Pennsylvania Human Relations Act (“Human Relations Act”), to redress a termination that contravenes our Commonwealth’s fundamental public policy against gender discrimination. Thus, I would affirm the order of the Superior Court.
Furthermore, a finding of a cause of action for those individuals who fall outside of the coverage of the Human Relations Act is entirely consonant with the conclusions reached by courts which have recognized a claim for wrongful discharge based upon a violation of public policy expressed in a state constitution, even when the state legislature has enacted an anti-discrimination statute which limits the size of the employer covered by the statute. See, e.g., Molesworth v. Brandon, 341 Md. 621, 672 A.2d 608 (1996) (upholding Maryland’s common law cause of action for wrongful discharge of an employee based on sex discrimination against an employer with less than 15 employees where public policy against sex discrimination was evidenced by constitutional amendment, statutes, and executive order); accord Thurdin v. SEI Boston, LLC, 452 Mass. 436, 895 N.E.2d 446 (2008) (concluding employee may bring claim for sex discrimination under state equal rights act where employer was not covered by Massachusetts’ state employment discrimination law); Collins v. Rizkana, 73 Ohio St. 3d 65, 652 N.E.2d 653 (1995) (recognizing common law tort claim for wrongful discharge in violation of Ohio public policy based upon statutory and judicial sources); Williamson v. Greene, 200 W.Va. 421, 490 S.E.2d 23 (1997) (determining common law claim for retaliatory discharge based on sex discrimination in light of West Virginia’s public policy found in state human relations act); Roberts v. Dudley, 140 Wn.2d 58, 993 P.2d 901 (2000) (finding claim for wrongful discharge in violation of Washington’s public policy against gender discrimination based upon statutes and judicial decisions); but see Jarman v. Deason, 173 N.C. App. 297, 618 S.E.2d 776 (2005) (concluding no claim of wrongful discharge for age discrimination in North Carolina relying on legislative prerogative but in absence of constitutional basis for public policy); Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, Inc., 994 P.2d 1261 (Utah 2000) (same).
http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-53-2008mo.pdf
Under the Pennsylvania Human Relations Act (PHRA), 43 P.S. §§ 951-963, employers with four or more employees are prohibited from discriminating against their employees on the basis of sex. See 43 P.S. §§ 954 (defining employer), 955 (listing “unlawful discriminatory practices”).
At common law, an employer may terminate an at-will employee for any reason unless that reason violates a clear mandate of public policy emanating from either the Pennsylvania Constitution or statutory pronouncements.
In this case, we address the intersection of the PHRA and the public policy exception to at-will employment, namely, whether an employer with fewer than four employees, although not subject to the PHRA’s prohibition against sexual discrimination, nevertheless is prohibited from discriminating against an employee on the basis of sex.
Because the PHRA reflects the unambiguous policy determination by the legislature that employers with fewer than four employees will not be liable for sex discrimination in Pennsylvania, we are constrained to conclude that a common law claim for wrongful discharge, resulting from sex discrimination, will not lie against those employers. We therefore reverse the Superior Court.
Dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-53-2008do.pdf
I believe the Pennsylvania Constitution, supported by statutory law, makes it unmistakably clear that the public policy of our Commonwealth simply does not tolerate invidious gender discrimination here in the form of sexual harassment with respect to continued employment.
For the reasons stated more fully below, while I would reaffirm the vitality of the at-will doctrine in our Commonwealth, I believe that we should join other states that have considered similar issues and recognize a cause of action for wrongful discharge, for those individuals who fall outside of the coverage of the Pennsylvania Human Relations Act (“Human Relations Act”), to redress a termination that contravenes our Commonwealth’s fundamental public policy against gender discrimination. Thus, I would affirm the order of the Superior Court.
Furthermore, a finding of a cause of action for those individuals who fall outside of the coverage of the Human Relations Act is entirely consonant with the conclusions reached by courts which have recognized a claim for wrongful discharge based upon a violation of public policy expressed in a state constitution, even when the state legislature has enacted an anti-discrimination statute which limits the size of the employer covered by the statute. See, e.g., Molesworth v. Brandon, 341 Md. 621, 672 A.2d 608 (1996) (upholding Maryland’s common law cause of action for wrongful discharge of an employee based on sex discrimination against an employer with less than 15 employees where public policy against sex discrimination was evidenced by constitutional amendment, statutes, and executive order); accord Thurdin v. SEI Boston, LLC, 452 Mass. 436, 895 N.E.2d 446 (2008) (concluding employee may bring claim for sex discrimination under state equal rights act where employer was not covered by Massachusetts’ state employment discrimination law); Collins v. Rizkana, 73 Ohio St. 3d 65, 652 N.E.2d 653 (1995) (recognizing common law tort claim for wrongful discharge in violation of Ohio public policy based upon statutory and judicial sources); Williamson v. Greene, 200 W.Va. 421, 490 S.E.2d 23 (1997) (determining common law claim for retaliatory discharge based on sex discrimination in light of West Virginia’s public policy found in state human relations act); Roberts v. Dudley, 140 Wn.2d 58, 993 P.2d 901 (2000) (finding claim for wrongful discharge in violation of Washington’s public policy against gender discrimination based upon statutes and judicial decisions); but see Jarman v. Deason, 173 N.C. App. 297, 618 S.E.2d 776 (2005) (concluding no claim of wrongful discharge for age discrimination in North Carolina relying on legislative prerogative but in absence of constitutional basis for public policy); Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, Inc., 994 P.2d 1261 (Utah 2000) (same).
Friday, July 17, 2009
Ten Practical Tips for Making Your Case Appealable
The ABA Section of Litigation has published "Ten Practical Tips for Making Your Case Appealable" as part of their Tips from the Trenches series.
The tips, authored by Alex Wilson Albright and Susan Vance, offer ten practice tips to help ensure that your case is appealable—and “appealing”—to a reviewing court.
Ten Practical Tips for Making Your Case Appealable
The tips, authored by Alex Wilson Albright and Susan Vance, offer ten practice tips to help ensure that your case is appealable—and “appealing”—to a reviewing court.
Ten Practical Tips for Making Your Case Appealable
Thursday, July 16, 2009
divorce - equitable distribution - rental credit - exclusion from home in PFA
Lee v. Lee - Pa. Superior Court - July 15, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A24031_08.pdf
In divorce-related equitable distribution, when a spouse has been excluded from the marital home by a protection from abuse order, the other spouse may raise an equitable defense against the first spouse’s claim to rental credit for the time period in which the order was in effect.
There is no legal authority on point on the question of whether a PFA, or a spouse’s abusive behavior prompting a PFA, can be the basis of a meritorious equitable defense to an award of rental credit. However, the Divorce Code provides that its purpose is to “[e]ffectuate economic justice between parties who are divorced or separated . . . and insure a fair and just determination and settlement of their property rights.” 23 Pa.C.S.A. § 3102(a)(6). Section 3323(f) provides: In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this part and may grant such other relief or remedy as equity and justice require against either party . . . . 23 Pa.C.S.A. § 3323(f). “He who comes into a court of equity must come with clean hands.”
In this instance, it is clear that Husband’s behavior prompted the PFA, which in turn excluded him from the home. No matter the reason for Husband’s not living in the marital residence at a certain point in time, there is no dispute that as of the date of entry of the PFA order, he was precluded from even visiting the home. We therefore conclude that equity prohibits Husband from receiving a monetary credit from Wife for the time that he was excluded by the PFA, as the order was entered on the basis of his misbehavior toward her. Thus, we agree with Wife that Husband was not entitled to any rental credit after the PFA was issued against him.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A24031_08.pdf
In divorce-related equitable distribution, when a spouse has been excluded from the marital home by a protection from abuse order, the other spouse may raise an equitable defense against the first spouse’s claim to rental credit for the time period in which the order was in effect.
There is no legal authority on point on the question of whether a PFA, or a spouse’s abusive behavior prompting a PFA, can be the basis of a meritorious equitable defense to an award of rental credit. However, the Divorce Code provides that its purpose is to “[e]ffectuate economic justice between parties who are divorced or separated . . . and insure a fair and just determination and settlement of their property rights.” 23 Pa.C.S.A. § 3102(a)(6). Section 3323(f) provides: In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this part and may grant such other relief or remedy as equity and justice require against either party . . . . 23 Pa.C.S.A. § 3323(f). “He who comes into a court of equity must come with clean hands.”
In this instance, it is clear that Husband’s behavior prompted the PFA, which in turn excluded him from the home. No matter the reason for Husband’s not living in the marital residence at a certain point in time, there is no dispute that as of the date of entry of the PFA order, he was precluded from even visiting the home. We therefore conclude that equity prohibits Husband from receiving a monetary credit from Wife for the time that he was excluded by the PFA, as the order was entered on the basis of his misbehavior toward her. Thus, we agree with Wife that Husband was not entitled to any rental credit after the PFA was issued against him.
Wednesday, July 15, 2009
custody - Hague Convention - surrender of passports, etc.
Axford v. Axford - ED Pa. - July 10, 2009
http://www.paed.uscourts.gov/documents/opinions/09D0808P.pdf
Expedited ex parte Motion for Expedited Service and Surrender of Passports and Travel Documents granted.
International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq., which implemented the Hague Convention, entitles a person whose child has been wrongfully removed to the United States, usually by a parent, to petition a federal court to order the child returned. See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 270 (3d Cir. 2007) (“A person claiming that a child has been wrongfully removed to or retained in the United States can commence judicial proceedings under the Hague Convention by filing a petition for the return of the child in a state or federal court which has jurisdiction where the child is located.” (citing 42 U.S.C. § 11603(b)). The Hague Convention reflects a universal concern about the harm done to children by parental kidnaping and a strong desire among the Contracting States to implement an effective deterrent to such behavior. Hague Convention, Preamble, 42 U.S.C. § 11601(a)(1)-(4)
The Hague Convention has two main purposes: “to ensure the prompt return of children to the state of their habitual residence when they have been wrongfully removed,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006) (citations omitted). The Hague Convention’s procedures are designed “to restore the status quo prior to any wrongful removal or retention and to deter parents from engaging in international forum shopping in custody cases.” Baxter v. Baxter, 423 F.3d 363, 367 (3d Cir. 2005) (citing Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995)). The Hague Convention is not designed to settle international custody disputes, but rather to ensure that cases are heard in the proper court. See Hague Convention, art. 19 (“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”).
Surrender of passports, etc. - A court exercising jurisdiction under the Hague Convention “may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child’s further removal or concealment before the final disposition of [a] petition.” 42 U.S.C. § 11604(a). In accordance with this authority, federal courts have ordered respondents to surrender their passports to the Clerk of Court and to remain in the court’s jurisdiction pending resolution of a petition.
http://www.paed.uscourts.gov/documents/opinions/09D0808P.pdf
Expedited ex parte Motion for Expedited Service and Surrender of Passports and Travel Documents granted.
International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq., which implemented the Hague Convention, entitles a person whose child has been wrongfully removed to the United States, usually by a parent, to petition a federal court to order the child returned. See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 270 (3d Cir. 2007) (“A person claiming that a child has been wrongfully removed to or retained in the United States can commence judicial proceedings under the Hague Convention by filing a petition for the return of the child in a state or federal court which has jurisdiction where the child is located.” (citing 42 U.S.C. § 11603(b)). The Hague Convention reflects a universal concern about the harm done to children by parental kidnaping and a strong desire among the Contracting States to implement an effective deterrent to such behavior. Hague Convention, Preamble, 42 U.S.C. § 11601(a)(1)-(4)
The Hague Convention has two main purposes: “to ensure the prompt return of children to the state of their habitual residence when they have been wrongfully removed,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006) (citations omitted). The Hague Convention’s procedures are designed “to restore the status quo prior to any wrongful removal or retention and to deter parents from engaging in international forum shopping in custody cases.” Baxter v. Baxter, 423 F.3d 363, 367 (3d Cir. 2005) (citing Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995)). The Hague Convention is not designed to settle international custody disputes, but rather to ensure that cases are heard in the proper court. See Hague Convention, art. 19 (“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”).
Surrender of passports, etc. - A court exercising jurisdiction under the Hague Convention “may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child’s further removal or concealment before the final disposition of [a] petition.” 42 U.S.C. § 11604(a). In accordance with this authority, federal courts have ordered respondents to surrender their passports to the Clerk of Court and to remain in the court’s jurisdiction pending resolution of a petition.
Friday, July 10, 2009
UC - eligibility - employer/claimant agreement
Goldsmith v. UCBR - Cmwlth. Court - July 9, 2009 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1385CD08_7-9-09.pdf
This is an unreported decision, but there's still a lot of important, useful stuff in it. The discussion about referees duties highlights why advocates should not bring claimants into willful misconduct hearings under some circumstances, e.g., the employer doesn't show up or doesn't bring witnesses with first-hand information.
______________________________________________
During the course of administrative proceedings in a UC case, claimant and employer entered into an agreement and sumitted it to the UCBR as a "stipulation." The terms included the employer dropping opposition to the UC claim. The Board ignored the stipulation and issued a decision.
Employer-claimant agreements about eligibility are not valid - The Court held that the Board's failure to address the stipulation was proper, since "[i]n the context of unemployment compensation benefits, '[a]n employer and employee . . . cannot determine the employee’s entitlement to benefits by subsequent agreement” after a finding that Claimant, under the facts of the case, is not legally entitled to benefits. Sill-Hopkins, 563 A.2d at 1289; Cozzone v. UCBR, 103 A.2d 284, 285 (Pa. Super. 1954); Turner v. UCBR, 381 A.2d 223, 224 (Pa. Cmwlth. 1978). Similarly, the courts have refused to give determinative weight to an agreement between an employer and a claimant that resolved their dispute that had led to the claimant’s discharge, and affirmed the denial of benefits even when, by agreement, employer reinstated claimant in his position. Nesmith v. UCBR, 402 A.2d 1132, 1133 (Pa. Cmwlth. 1979).
A key reason behind this principle is that “[t]he Board is charged with the duty of safeguarding the [unemployment compensation] fund.” Phillips v. UCBR, 30 A.2d 718, 723 (Pa. Super. 1943); see also Amspacher v. UCBR, 479 A.2d 688, 691 (Pa. Cmwlth. 1984) (the Commonwealth has a “duty to protect the unemployment compensation fund against dissipation by those not entitled to benefits.”)....[P]rivate agreements between claimants and employers that rely on the fund threaten the viability of the unemployment compensation system." Department of Labor and Industry v. UCBR, 418 Pa. 471, 211 A.2d 463, 469-470 (1965).
In this case, employer and claimant essentially seek to use the UC fund as the source of a settlement of Claimant’s separate civil rights claims against the Employer. Such purpose is not congruent with the purposes behind the UC Law.
Duty to referee to develop record - This safeguarding responsibility requires the referee and Board to examine the facts of each case to determine if the circumstances surrounding a claimant’s unemployment qualify that claimant, under the law, for compensation from the fund. See PTC v. UCBR (In re Gagliardi), 141 A.2d 410, 415 (Pa. Super. 1958) (“It is the duty of the referee, as representative or agent for the board ‛to fairly develop the facts.’”) This duty extends beyond merely passively “hearing the witnesses who voluntarily appear,” and gives “the referee or the Board [the responsibility] to call witnesses” should “additional testimony [be] required” to adequately assess the factual circumstances surrounding a claimant’s unemployment. Phillips, 30 A.2d at 723.
The responsibility is necessary, in part, because an employer’s interests may not coincide with the Board’s interest of protecting the fund. Given this possible divergence of interests, the Board and referee must necessarily investigate the circumstances, independent of any representations made by the Employer. See generally, DiGiovanni v. UCBR, 404 A.2d 449, 450 (Pa. Cmwlth. 1979) (noting the responsibility of the Board to protect the unemployment compensation fund, as well as the investigative power of the Board toward that end, and citing to numerous cases of this Court where an employer’s nonparticipation had no bearing on the ultimate decision).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1385CD08_7-9-09.pdf
This is an unreported decision, but there's still a lot of important, useful stuff in it. The discussion about referees duties highlights why advocates should not bring claimants into willful misconduct hearings under some circumstances, e.g., the employer doesn't show up or doesn't bring witnesses with first-hand information.
______________________________________________
During the course of administrative proceedings in a UC case, claimant and employer entered into an agreement and sumitted it to the UCBR as a "stipulation." The terms included the employer dropping opposition to the UC claim. The Board ignored the stipulation and issued a decision.
Employer-claimant agreements about eligibility are not valid - The Court held that the Board's failure to address the stipulation was proper, since "[i]n the context of unemployment compensation benefits, '[a]n employer and employee . . . cannot determine the employee’s entitlement to benefits by subsequent agreement” after a finding that Claimant, under the facts of the case, is not legally entitled to benefits. Sill-Hopkins, 563 A.2d at 1289; Cozzone v. UCBR, 103 A.2d 284, 285 (Pa. Super. 1954); Turner v. UCBR, 381 A.2d 223, 224 (Pa. Cmwlth. 1978). Similarly, the courts have refused to give determinative weight to an agreement between an employer and a claimant that resolved their dispute that had led to the claimant’s discharge, and affirmed the denial of benefits even when, by agreement, employer reinstated claimant in his position. Nesmith v. UCBR, 402 A.2d 1132, 1133 (Pa. Cmwlth. 1979).
A key reason behind this principle is that “[t]he Board is charged with the duty of safeguarding the [unemployment compensation] fund.” Phillips v. UCBR, 30 A.2d 718, 723 (Pa. Super. 1943); see also Amspacher v. UCBR, 479 A.2d 688, 691 (Pa. Cmwlth. 1984) (the Commonwealth has a “duty to protect the unemployment compensation fund against dissipation by those not entitled to benefits.”)....[P]rivate agreements between claimants and employers that rely on the fund threaten the viability of the unemployment compensation system." Department of Labor and Industry v. UCBR, 418 Pa. 471, 211 A.2d 463, 469-470 (1965).
In this case, employer and claimant essentially seek to use the UC fund as the source of a settlement of Claimant’s separate civil rights claims against the Employer. Such purpose is not congruent with the purposes behind the UC Law.
Duty to referee to develop record - This safeguarding responsibility requires the referee and Board to examine the facts of each case to determine if the circumstances surrounding a claimant’s unemployment qualify that claimant, under the law, for compensation from the fund. See PTC v. UCBR (In re Gagliardi), 141 A.2d 410, 415 (Pa. Super. 1958) (“It is the duty of the referee, as representative or agent for the board ‛to fairly develop the facts.’”) This duty extends beyond merely passively “hearing the witnesses who voluntarily appear,” and gives “the referee or the Board [the responsibility] to call witnesses” should “additional testimony [be] required” to adequately assess the factual circumstances surrounding a claimant’s unemployment. Phillips, 30 A.2d at 723.
The responsibility is necessary, in part, because an employer’s interests may not coincide with the Board’s interest of protecting the fund. Given this possible divergence of interests, the Board and referee must necessarily investigate the circumstances, independent of any representations made by the Employer. See generally, DiGiovanni v. UCBR, 404 A.2d 449, 450 (Pa. Cmwlth. 1979) (noting the responsibility of the Board to protect the unemployment compensation fund, as well as the investigative power of the Board toward that end, and citing to numerous cases of this Court where an employer’s nonparticipation had no bearing on the ultimate decision).
Monday, July 06, 2009
UC - willful misconduct - inability to do work
Durham v. UCBR - Cmwlth Court - July 2, 2009 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/30CD09_7-2-09.pdf
The court reversed the decision of the Board, affirming the referee decision that Claimant was not eligible for benefits under Section 402(e) of the UC Law, 43 P.S. §802(e), for alleged willful misconduct, because "the facts showed only Claimant’s inability to complete assignments, as opposed to refusal to do so..."
Claimant was unable to catch up on progress notes because of a 5-day absence for health reasons. Even though the Board found Employer’s witnesses credible, the substance of that credited testimony does not support a finding that Claimant intentionally disregarded his job duties. This is simply a case of an employee working to the best of his ability but still falling short of his employer’s expectations. This does not amount to willful misconduct.
On the employer testimony, the Board found that Claimant’s conduct was intentional. However, the testimony established only that Claimant was not performing at a rate which she considered satisfactory, and that in her opinion Claimant’s productivity had declined. Employer’s reaction to Claimant’s supposed misconduct indicates that it, too, believed Claimant was simply incompetent. Indeed, Employer took measures to assist him in completing his backlog of work. This suggests that Employer believed Claimant needed extra time and help in order to complete his workload, not that he refused to complete it or refused to exercise the requisite diligence. The employer witness did not testify that Claimant disregarded Employer’s interests or his duties; her testimony showed only that Claimant did not complete the duties assigned to him. In short, Claimant’s failure to complete his work was the result of “mere incompetence, inexperience, or inability.”
It is important to focus on the definition of “willful.” Actual intent to wrong the employer is not necessary. Willful misconduct can be proven by a finding of “conscious indifference to the duty owed the employer.” Homony v. UCBR, 312 A.2d 77, 78 (Pa. Cmwlth. 1973). However, “mere incompetence, inexperience, or inability which may indeed be sufficient to justify discharge, will not constitute willful misconduct.” Ungard v. UCBR, 442 A.2d 16, 19 (Pa. Cmwlth. 1982). Where an employee works to the best of his ability, it does not amount to willful misconduct. Radio Station WVCH v. UCBR, 430 A.2d 737, 740 (Pa. Cmwlth. 1981); Geslao v. UCBR, 519 A.2d 1096, 1098 (Pa. Cmwlth. 1987); Herndon v. UCBR, 540 A.2d 633, 634 (Pa. Cmwlth. 1988). The record in this case does not support the Board’s conclusion that Claimant’s failure to complete his work constituted willful misconduct.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/30CD09_7-2-09.pdf
The court reversed the decision of the Board, affirming the referee decision that Claimant was not eligible for benefits under Section 402(e) of the UC Law, 43 P.S. §802(e), for alleged willful misconduct, because "the facts showed only Claimant’s inability to complete assignments, as opposed to refusal to do so..."
Claimant was unable to catch up on progress notes because of a 5-day absence for health reasons. Even though the Board found Employer’s witnesses credible, the substance of that credited testimony does not support a finding that Claimant intentionally disregarded his job duties. This is simply a case of an employee working to the best of his ability but still falling short of his employer’s expectations. This does not amount to willful misconduct.
On the employer testimony, the Board found that Claimant’s conduct was intentional. However, the testimony established only that Claimant was not performing at a rate which she considered satisfactory, and that in her opinion Claimant’s productivity had declined. Employer’s reaction to Claimant’s supposed misconduct indicates that it, too, believed Claimant was simply incompetent. Indeed, Employer took measures to assist him in completing his backlog of work. This suggests that Employer believed Claimant needed extra time and help in order to complete his workload, not that he refused to complete it or refused to exercise the requisite diligence. The employer witness did not testify that Claimant disregarded Employer’s interests or his duties; her testimony showed only that Claimant did not complete the duties assigned to him. In short, Claimant’s failure to complete his work was the result of “mere incompetence, inexperience, or inability.”
It is important to focus on the definition of “willful.” Actual intent to wrong the employer is not necessary. Willful misconduct can be proven by a finding of “conscious indifference to the duty owed the employer.” Homony v. UCBR, 312 A.2d 77, 78 (Pa. Cmwlth. 1973). However, “mere incompetence, inexperience, or inability which may indeed be sufficient to justify discharge, will not constitute willful misconduct.” Ungard v. UCBR, 442 A.2d 16, 19 (Pa. Cmwlth. 1982). Where an employee works to the best of his ability, it does not amount to willful misconduct. Radio Station WVCH v. UCBR, 430 A.2d 737, 740 (Pa. Cmwlth. 1981); Geslao v. UCBR, 519 A.2d 1096, 1098 (Pa. Cmwlth. 1987); Herndon v. UCBR, 540 A.2d 633, 634 (Pa. Cmwlth. 1988). The record in this case does not support the Board’s conclusion that Claimant’s failure to complete his work constituted willful misconduct.
Thursday, July 02, 2009
certificate of merit - actions against licensed professionals
Zatuchni v. Richman, et al - ED Pa. - June 30, 2009
http://www.paed.uscourts.gov/documents/opinions/09D0762P.pdf
Under Pennsylvania law, a Certificate of Merit (COM) is required when a professional liability claim is asserted against a licensed professional, and when it is asserted against “a partnership, unincorporated association, corporation or similar entity where the entity is responsible for a licensed professional who deviated from an acceptable professional standard.”26 PA. R. CIV. P. 1042.1(a).
This rule is one of substantive law to be applied by federal courts sitting in diversity.
A COM must be filed for all actions, whether in state or federal court, that are “based upon an allegation that a licensed professional deviated from an acceptable professional standard.”
http://www.paed.uscourts.gov/documents/opinions/09D0762P.pdf
Under Pennsylvania law, a Certificate of Merit (COM) is required when a professional liability claim is asserted against a licensed professional, and when it is asserted against “a partnership, unincorporated association, corporation or similar entity where the entity is responsible for a licensed professional who deviated from an acceptable professional standard.”26 PA. R. CIV. P. 1042.1(a).
This rule is one of substantive law to be applied by federal courts sitting in diversity.
A COM must be filed for all actions, whether in state or federal court, that are “based upon an allegation that a licensed professional deviated from an acceptable professional standard.”
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