Sitoski v. PennDOT - Cmwlth. Court - October 29, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/431CD09_10-29-09.pdf
If a licensee takes a prescription drug, knowing its side effects, and then sustains a head injury in an accident, the licensee can establish an inability to make a knowing and conscious refusal by presenting expert medical testimony that the head injury played a greater role in the refusal than the prescription drug.
Here, the licensee presented medical testimony, but not about whether licensee’s closed-head injury played a greater role than the prescription sleep medication in his inability to make a knowing and conscious refusal. The doctor testified only that the sleep medication in combination with the closed-head injury made licensee unable to make a knowing and conscious refusal. The suspension, therfore, was proper.
__._,_.___
Thursday, October 29, 2009
child abuse - expungement - founded report - finality of appeal
LC v. DPW - Cmwlth. Court - October 29, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/189CD09_10-29-09.pdf
DPW was not required to wait until appellant's criminal appeals were finally resolved to list him as an abuser in a "founded" report. Section 6303 of the Child Protective Services Law defines “founded report” as a child abuse report made pursuant to “any judicial adjudication” of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse. 23 Pa. C.S. §6303. Thus, DPW was not required to wait until L.C. exhausted his appeals to list him as an abuser in a “founded report.”
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/189CD09_10-29-09.pdf
DPW was not required to wait until appellant's criminal appeals were finally resolved to list him as an abuser in a "founded" report. Section 6303 of the Child Protective Services Law defines “founded report” as a child abuse report made pursuant to “any judicial adjudication” of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse. 23 Pa. C.S. §6303. Thus, DPW was not required to wait until L.C. exhausted his appeals to list him as an abuser in a “founded report.”
RESPA - anti-kickback provision - private right of action - no overcharge allegation requiredd
Alston et al. v. Countrywide Financial Corp. - 3d Cir. - October 28, 2009
http://www.ca3.uscourts.gov/opinarch/084334p.pdf
This is a class action brought by homebuyers who sought to recover statutory treble damages pursuant to §8(d)(2) of the Real Estate Settlement Procedures Act of 1974 (“RESPA”), 12 U.S.C. § 2607(d)(2).
Plaintiffs alleged that their private mortgage insurance premiums were channeled into an unlawful “captive reinsurance arrangement”—essentially, a kickback scheme—operated by their mortgage lender and its affiliated reinsurer, in violation of RESPA §8(a) and §8(b), 12 U.S.C. § 2607(a)-(b).*
The thrust of the complaint is that, in enacting and amending section 8, Congress bestowed upon the consumer the right to a real estate settlement free from unlawful kickbacks and unearned fees, and Countrywide’s invasion of that statutory right, even without a resultant overcharge, was an injury-in-fact for purposes of Article III standing. The District Court disagreed and dismissed the complaint without prejudice for lack of jurisdiction.
What is before us for decision turns on a question of statutory interpretation—does or does not the plain language of RESPA section 8(d)** indicate that Congress created a private right of action without requiring an overcharge allegation? We conclude that it does. Accordingly, we will reverse the Order of the District Court.
The plain language of RESPA section 8 does not require plaintiffs to allege an overcharge. The best indication of Congress’s intent in this regard is the method it prescribed for the calculation of statutory damages in [other sections of RESPA]....Critically, none of these provisions contains the word “overcharge” or otherwise implies that the plaintiff must allege that he or she paid more than he or she otherwise would have paid. See id. § 2607(a), (b), (d)(2). Instead, damages are fixed at three times the total charge paid by the consumer in exchange for a settlement service, and not merely any overcharge.
We agree with plaintiffs and the United States, intervening on plaintiffs’ behalf, that the provision of statutory damages based on the entire payment, not on an overcharge, is a certain indication that Congress did not intend to require an overcharge to recover under section 8 of RESPA.
______________
* Section 8(a) prohibits “any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.” 12 U.S.C. § 2607(a). Section 8(b) prohibits unearned fees: “No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service . . . other than for services actually performed.” Id. § 2607(b).
** Congress authorized private actions against a person who violates section 8. As amended in 1983, section 8(d)(2) provides that “[a]ny person or persons who violate the prohibition or limitations of this section shall be jointly and severally liable to the person or persons charged for the settlement service involved in the violation in an amount equal to three times the amount of any charge paid for such settlement service.” Id.
http://www.ca3.uscourts.gov/opinarch/084334p.pdf
This is a class action brought by homebuyers who sought to recover statutory treble damages pursuant to §8(d)(2) of the Real Estate Settlement Procedures Act of 1974 (“RESPA”), 12 U.S.C. § 2607(d)(2).
Plaintiffs alleged that their private mortgage insurance premiums were channeled into an unlawful “captive reinsurance arrangement”—essentially, a kickback scheme—operated by their mortgage lender and its affiliated reinsurer, in violation of RESPA §8(a) and §8(b), 12 U.S.C. § 2607(a)-(b).*
The thrust of the complaint is that, in enacting and amending section 8, Congress bestowed upon the consumer the right to a real estate settlement free from unlawful kickbacks and unearned fees, and Countrywide’s invasion of that statutory right, even without a resultant overcharge, was an injury-in-fact for purposes of Article III standing. The District Court disagreed and dismissed the complaint without prejudice for lack of jurisdiction.
What is before us for decision turns on a question of statutory interpretation—does or does not the plain language of RESPA section 8(d)** indicate that Congress created a private right of action without requiring an overcharge allegation? We conclude that it does. Accordingly, we will reverse the Order of the District Court.
The plain language of RESPA section 8 does not require plaintiffs to allege an overcharge. The best indication of Congress’s intent in this regard is the method it prescribed for the calculation of statutory damages in [other sections of RESPA]....Critically, none of these provisions contains the word “overcharge” or otherwise implies that the plaintiff must allege that he or she paid more than he or she otherwise would have paid. See id. § 2607(a), (b), (d)(2). Instead, damages are fixed at three times the total charge paid by the consumer in exchange for a settlement service, and not merely any overcharge.
We agree with plaintiffs and the United States, intervening on plaintiffs’ behalf, that the provision of statutory damages based on the entire payment, not on an overcharge, is a certain indication that Congress did not intend to require an overcharge to recover under section 8 of RESPA.
______________
* Section 8(a) prohibits “any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.” 12 U.S.C. § 2607(a). Section 8(b) prohibits unearned fees: “No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service . . . other than for services actually performed.” Id. § 2607(b).
** Congress authorized private actions against a person who violates section 8. As amended in 1983, section 8(d)(2) provides that “[a]ny person or persons who violate the prohibition or limitations of this section shall be jointly and severally liable to the person or persons charged for the settlement service involved in the violation in an amount equal to three times the amount of any charge paid for such settlement service.” Id.
Wednesday, October 28, 2009
UC - appeal - statement of objections - PRAP 1513(d) - Deal, et al.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1170CD08_10-28-09.pdf - unreported
Another appeal quashed because the claimant's "general statement of objections to the Board's order in the petition for review fails to fairly embrace the issues raised in his brief filed by his attorney," following Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005) and Maher v. UCBR (Pa. Cmwlth., No. 1843 C.D. 2008, filed October 27, 2009) and rejecting Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008).
Another appeal quashed because the claimant's "general statement of objections to the Board's order in the petition for review fails to fairly embrace the issues raised in his brief filed by his attorney," following Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005) and Maher v. UCBR (Pa. Cmwlth., No. 1843 C.D. 2008, filed October 27, 2009) and rejecting Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008).
UC- vol. quit - follow-the-spouse - necessity
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/652CD09_10-28-09.pdf - unreported
Benefits denied in follow-the-spouse case where spouse took new job in South Carolina to improve his career, and not as a matter of necessity. "It wasn't relocate or else."
“[I]n a following the spouse case the reason for the spouse’s relocation must be beyond the spouse’s control and not a matter of personal preference.” Procito v. UCBR, 945 A.2d 261, 266 (Pa. Cmwlth. 2008). Further, “[w]here a claimant terminates employment to join a relocating spouse, the claimant must demonstrate an economic hardship in maintaining two residences or that the move has posed an insurmountable commuting problem.” Sturpe v. UCBR, 823 A.2d 239, 242 (Pa. Cmwlth. 2003).
Benefits denied in follow-the-spouse case where spouse took new job in South Carolina to improve his career, and not as a matter of necessity. "It wasn't relocate or else."
“[I]n a following the spouse case the reason for the spouse’s relocation must be beyond the spouse’s control and not a matter of personal preference.” Procito v. UCBR, 945 A.2d 261, 266 (Pa. Cmwlth. 2008). Further, “[w]here a claimant terminates employment to join a relocating spouse, the claimant must demonstrate an economic hardship in maintaining two residences or that the move has posed an insurmountable commuting problem.” Sturpe v. UCBR, 823 A.2d 239, 242 (Pa. Cmwlth. 2003).
Social Security Number - prohibition against disclosure - F.R. Civ. Pa. 5.2(a)
Federal Rules of Civil Procedure 5.2(a) (Privacy Protections for Filings Made with the Court) states that any court filing "may include only" the last 4 digits of a person's social security number and just the year of a person's birth.
A federal district court in Minnesota (Engeseth v. County of Isanti) recently sanctioned an attorney $5,000 for including the full social security numbers of 179 people in an affidavit filed with the court and discussed the serious threat of identity theft.
A federal district court in Minnesota (Engeseth v. County of Isanti) recently sanctioned an attorney $5,000 for including the full social security numbers of 179 people in an affidavit filed with the court and discussed the serious threat of identity theft.
Tuesday, October 27, 2009
UC - appeal - statement of objections - PRAP 1513(d) - Deal v. UCBR
Maher v. UCBR - Cmwlth. Court -
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1843CD08_10-27-09.pdf
Pro se attorney claimant appealed an adverse UCBR decision to Commonwealth Court by a Petition for Review which listed the following “Objections to the Determination: 6. The determination of the Unemployment Compensation Board of Review is not supported by substantial evidence. 7. The determination of the Unemployment Compensation Board of Review is based on errors of law."
Majority
The Court granted the UCBR's Motion to Strike the Petition for failing to preserve any issue for the court’s review, relying on Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005), Patla v. UCBR, 962 A.2d 724 (Pa. Cmwlth. 2008) and Jimoh v. UCBR, 902 A.2d 608 (Pa. Cmwlth. 2006), holding that a petition that merely reiterates the court's standard of review and fails to articulate specific objections to the Board’s decision does not satisty Pa. R.A.P. 1513(d), rejecting Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008).
Rule 1513(d) requires “'a general statement of the objections to the order or other determination.' This general statement will be deemed to include every subsidiary question fairly comprised therein. Id. However, more than a restatement of our standard of review is required. Deal. We will not consider issues raised in a party’s brief when they are not sufficiently addressed in the petition for review."
Even though the appellate rules state that “[t]he statement of objections will be deemed to include every subsidiary question fairly comprised therein,” the court held, as it did in Deal, that "a petition for review under Pa. R.A.P. 1513(d) must state its objections with “sufficient specificity to permit the conversion of an appellate document to an original jurisdiction pleading and vice versa should such action be necessary to assure proper judicial disposition.” Pa. R.A.P. 1513, Note." [emphasis in opinion].
Dissent
Judge Leavitt dissented, stating that the "premise to the majority’s decision is that a petition for review must articulate specific objections to the underlying agency decision or face dismissal. That premise, however, is directly contrary to the plain language of the applicable rule of appellate procedure, PA. R.A.P. 1513, which requires only a “general statement” of a petitioner’s objections. How specific must a general statement of objections be? Because Claimant’s petition for review complied with Rule 1513, I would deny the Board’s motion to strike the petition....Rule 1513(d) could not be clearer. In an appellate petition for review, only a “general statement” of a petitioner’s objections to the order or determination is required."
"The word 'general' in this context is free from any ambiguity, and this Court may not disregard the letter of the rule. 1 Pa. C.S. §1921(b). Quite simply, 'general' does not mean 'specific;' it means the opposite of 'specific.'”
The dissent prefered the reasoning in Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008), where the court "offered a better approach for evaluating whether a petition for review contains a “general statement” of issues. In that case, the claimant raised two issues in his petition for review: (1) “the Board failed to ‘review all the facts;’” and (2) “‘this case is not strong enough’ to withhold unemployment compensation benefits.” Pearson, 954 A.2d at 1263. Applying the proviso that “[t]he statement of objections will be deemed to include every subsidiary question fairly comprised therein,” PA. R.A.P. 1513(d), we construed the claimant’s “general statement” of issues to challenge the sufficiency of the evidence and whether the employer had sustained its burden of proof. In doing so, we looked beyond the four corners of the petition for review and noted that “[c]laimant sufficiently addresses these arguments in his handwritten appellate brief.” Pearson, 954 A.2d at 1263."
"Pearson recognizes that a petition for review should not be considered in a vacuum. Indeed, Rule 1513 requires the petitioner to attach a copy of the challenged order or determination, i.e., the adjudication, to the petition for review. By putting the 'general statement' together with the attached adjudication, 'every subsidiary question fairly comprised' can be discussed. The Pearson approach is preferable to the drastic measure of striking a petition for review on a technicality and effectively putting a litigant out of court."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1843CD08_10-27-09.pdf
Pro se attorney claimant appealed an adverse UCBR decision to Commonwealth Court by a Petition for Review which listed the following “Objections to the Determination: 6. The determination of the Unemployment Compensation Board of Review is not supported by substantial evidence. 7. The determination of the Unemployment Compensation Board of Review is based on errors of law."
Majority
The Court granted the UCBR's Motion to Strike the Petition for failing to preserve any issue for the court’s review, relying on Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005), Patla v. UCBR, 962 A.2d 724 (Pa. Cmwlth. 2008) and Jimoh v. UCBR, 902 A.2d 608 (Pa. Cmwlth. 2006), holding that a petition that merely reiterates the court's standard of review and fails to articulate specific objections to the Board’s decision does not satisty Pa. R.A.P. 1513(d), rejecting Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008).
Rule 1513(d) requires “'a general statement of the objections to the order or other determination.' This general statement will be deemed to include every subsidiary question fairly comprised therein. Id. However, more than a restatement of our standard of review is required. Deal. We will not consider issues raised in a party’s brief when they are not sufficiently addressed in the petition for review."
Even though the appellate rules state that “[t]he statement of objections will be deemed to include every subsidiary question fairly comprised therein,” the court held, as it did in Deal, that "a petition for review under Pa. R.A.P. 1513(d) must state its objections with “sufficient specificity to permit the conversion of an appellate document to an original jurisdiction pleading and vice versa should such action be necessary to assure proper judicial disposition.” Pa. R.A.P. 1513, Note." [emphasis in opinion].
Dissent
Judge Leavitt dissented, stating that the "premise to the majority’s decision is that a petition for review must articulate specific objections to the underlying agency decision or face dismissal. That premise, however, is directly contrary to the plain language of the applicable rule of appellate procedure, PA. R.A.P. 1513, which requires only a “general statement” of a petitioner’s objections. How specific must a general statement of objections be? Because Claimant’s petition for review complied with Rule 1513, I would deny the Board’s motion to strike the petition....Rule 1513(d) could not be clearer. In an appellate petition for review, only a “general statement” of a petitioner’s objections to the order or determination is required."
"The word 'general' in this context is free from any ambiguity, and this Court may not disregard the letter of the rule. 1 Pa. C.S. §1921(b). Quite simply, 'general' does not mean 'specific;' it means the opposite of 'specific.'”
The dissent prefered the reasoning in Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008), where the court "offered a better approach for evaluating whether a petition for review contains a “general statement” of issues. In that case, the claimant raised two issues in his petition for review: (1) “the Board failed to ‘review all the facts;’” and (2) “‘this case is not strong enough’ to withhold unemployment compensation benefits.” Pearson, 954 A.2d at 1263. Applying the proviso that “[t]he statement of objections will be deemed to include every subsidiary question fairly comprised therein,” PA. R.A.P. 1513(d), we construed the claimant’s “general statement” of issues to challenge the sufficiency of the evidence and whether the employer had sustained its burden of proof. In doing so, we looked beyond the four corners of the petition for review and noted that “[c]laimant sufficiently addresses these arguments in his handwritten appellate brief.” Pearson, 954 A.2d at 1263."
"Pearson recognizes that a petition for review should not be considered in a vacuum. Indeed, Rule 1513 requires the petitioner to attach a copy of the challenged order or determination, i.e., the adjudication, to the petition for review. By putting the 'general statement' together with the attached adjudication, 'every subsidiary question fairly comprised' can be discussed. The Pearson approach is preferable to the drastic measure of striking a petition for review on a technicality and effectively putting a litigant out of court."
Friday, October 23, 2009
debt collection - "communications" - automated telephone calls
Inman v. NCO Financial Systems - ED Pa. - October 21, 2009
http://www.paed.uscourts.gov/documents/opinions/09D1288P.pdf
Defendant debt collector's automated messages left on Plaintiff's answering machine consituted "communications" under the Fair Debt Collection Pracctices Act, 15 USC sec. 1692a(2). The court relied heavily on the decison in Foti v. NCO Financial Systems, 424 F.Supp. 2d 643 (SDNY 2006)
NCO’s records reflect that automated telephone calls were placed on the dates and times alleged, and that the content of the recordings on Plaintiff’s voicemail system accurately reflects a portion of NCO’s automated interactive “script.” Such portions of the script went as follows:
This message is for - Thomas Inman. Please call us back today at toll-free, 1-800-350-2457. When calling back, the Reference ID is EL9170. Once again, this number is toll-free 1-800-350-2457. Thank you. Goodbye.
or
This message is for - Thomas Inman. Please call us back today at toll-free, 1-800-350-2457. When calling back, the Reference ID is EL9170. Once again, the number is toll-free 1-800-350-2457. Thank you. Goodbye.
There were about 20 such calls over a one-month period.
http://www.paed.uscourts.gov/documents/opinions/09D1288P.pdf
Defendant debt collector's automated messages left on Plaintiff's answering machine consituted "communications" under the Fair Debt Collection Pracctices Act, 15 USC sec. 1692a(2). The court relied heavily on the decison in Foti v. NCO Financial Systems, 424 F.Supp. 2d 643 (SDNY 2006)
NCO’s records reflect that automated telephone calls were placed on the dates and times alleged, and that the content of the recordings on Plaintiff’s voicemail system accurately reflects a portion of NCO’s automated interactive “script.” Such portions of the script went as follows:
This message is for - Thomas Inman. Please call us back today at toll-free, 1-800-350-2457. When calling back, the Reference ID is EL9170. Once again, this number is toll-free 1-800-350-2457. Thank you. Goodbye.
or
This message is for - Thomas Inman. Please call us back today at toll-free, 1-800-350-2457. When calling back, the Reference ID is EL9170. Once again, the number is toll-free 1-800-350-2457. Thank you. Goodbye.
There were about 20 such calls over a one-month period.
IFP - CCP Rules - SSN not required
In Re: Order Amending Rule 240 of the Pennsylvania Rules of Civil Procedure,
No. 515 Civil Procedural Rules Docket
Opinion By: per curiam, Posted By: W.D. Prothonotary
Date Rendered: 10/22/2009
Date Posted: 10/22/2009
Opinion Type: Rules
515civ.pdf
Date Rendered: 10/22/2009
Date Posted: 10/22/2009
Opinion Type: Rules
515civ.attach.pdf
Explanatory Comment - There has been an increase in the concern about the use of social security numbers in court paper records. Consequently, the Supreme Court of Pennsylvania has amended Rule 240(h) governing the form for the petition to proceed in forma pauperis by deleting the requirement for a petitioner to supply his or her social security number.
No. 515 Civil Procedural Rules Docket
Opinion By: per curiam, Posted By: W.D. Prothonotary
Date Rendered: 10/22/2009
Date Posted: 10/22/2009
Opinion Type: Rules
515civ.pdf
Date Rendered: 10/22/2009
Date Posted: 10/22/2009
Opinion Type: Rules
515civ.attach.pdf
Explanatory Comment - There has been an increase in the concern about the use of social security numbers in court paper records. Consequently, the Supreme Court of Pennsylvania has amended Rule 240(h) governing the form for the petition to proceed in forma pauperis by deleting the requirement for a petitioner to supply his or her social security number.
IFP - MDJ Rule 206 - SSN not required
In RE: Order Amending Rule 206 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges, No. 262 Magisterial Docket
Opinion By: per curiam
Posted By: W.D. Prothonotary
Opinion Type: Rules 262mag.pdf
Opinion Type: Rules 262mag.rpt.pdf
Opinion Type: Rules 262mag.attach.pdf
FINAL REPORT
Opinion By: per curiam
Posted By: W.D. Prothonotary
Opinion Type: Rules 262mag.pdf
Opinion Type: Rules 262mag.rpt.pdf
Opinion Type: Rules 262mag.attach.pdf
FINAL REPORT
Amendment to Rule 206 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges
REMOVAL OF SOCIAL SECURITY NUMBER IN IFP PETITION
On October 22, 2009, effective immediately, upon recommendation of the Minor Court Rules Committee, the Supreme Court of Pennsylvania approved an amendment to Rule 206 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges.
I. Background and Discussion
In the spring of 2007, the Court Administrator of Pennsylvania convened a working group to formulate a statewide public access policy for official case records of the magisterial district courts. The working group was asked to specifically address release of sensitive information, such as social security numbers (“SSNs”). Staff Counsel for the Minor Court Rules Committee (“Committee”) was a member of the working group. The working group concluded that SSNs should not be included on forms filed with magisterial district courts if that information is unnecessary for the court’s adjudication of the case or collection of the information is not otherwise required by law.
In light of that conclusion, the working group asked Staff Counsel if the Committee would consider removing the SSN requirement from the in forma pauperis (“IFP") petition described in Rule 206E(vi).
The Committee members discussed the working group’s request and agreed that the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges should be consistent with any procedures adopted by the Court governing access to information in the official case records of the magisterial district courts. In addition, the Committee unanimously concurred that there was no judicial rationale for requesting SSNs. Therefore, the Committee recommended removal of the SSN requirement from the IFP petition.
II. Approved Rule Changes
Accordingly, the Committee proposed the deletion of the line in the IFP petition that requires entry of a petitioner’s SSN. The Committee believes this amendment to be of a perfunctory nature. Therefore, the Committee respectfully recommended that the Court adopt this recommendation in accordance with Pa.R.J.A. No. 103(a)(3), without prior publication for public comment.
Thursday, October 22, 2009
custody - fast-track appeals - concise statement of errors - PRAP 905, 1925
In re K.T.E.L. - Superior Court - October 21, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/S53016_09.pdf
In this case, we address an issue of first impression: the disposition of an appeal in which an appellant in a case involving termination of parental rights fails to comply with Pennsylvania Rules of Appellate Procedure 905(a)(2) and 1925(a)(2), both adopted January 13, 2009.
We hold that henceforth, in all children’s fast track cases, the failure to file a concise statement of errors complained of on appeal with the notice of appeal will result in a defective notice of appeal, to be disposed of on a case by case basis.
The amendments to Rule 905 and 1925, adopted January 13, 2009....included new sub-sections applicable only to children’s fast track cases. Rule 905(a)(2) provides in pertinent part: “If the appeal is a children’s fast track appeal, the concise statement of errors complained of on appeal as described in Rule 1925(a)(2) shall be filed with the notice of appeal and served in accordance with Rule 1925(b)(1).” Pa.R.A.P. 905(a)(2) (emphasis added).
Rule 1925(a)(2)(i) states: “The concise statement of errors complained of on appeal shall be filed and served with the notice of appeal as required by Rule 905. See Pa.R.A.P. 905(a)(2).” Pa.R.A.P. 1925(a)(2)(i) (emphasis added).
While both rules require the contemporaneous filing of a notice of appeal and concise statement, there are no provisions defining the effect on the appellant’s appeal of the failure to comply. We find however, that rule 905(a)(2) is procedural, not jurisdictional; therefore, we are not divested of our jurisdiction by non-compliance. Instead, we find that failure to comply with Rule 905(a)(2) will result in a defective notice of appeal.
“The extreme action of dismissal should be imposed by an appellate court sparingly, and clearly would be inappropriate when there has been substantial compliance with the rules and when the party [moving for quashal of the appeal] has suffered no prejudice.” Stout v. Universal Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980).
Accordingly, as there is no per se rule requiring quashal or dismissal of a defective notice of appeal, we hold that in the instant case and henceforth, the failure of an appellant in a children’s fast track case to file contemporaneously a concise statement with the notice of appeal pursuant to rules 905(a)(2) and 1925(a)(2), will result in a defective notice of appeal. The disposition of the defective notice of appeal will then be decided on a case by case basis under the guidelines set forth in Stout.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/S53016_09.pdf
In this case, we address an issue of first impression: the disposition of an appeal in which an appellant in a case involving termination of parental rights fails to comply with Pennsylvania Rules of Appellate Procedure 905(a)(2) and 1925(a)(2), both adopted January 13, 2009.
We hold that henceforth, in all children’s fast track cases, the failure to file a concise statement of errors complained of on appeal with the notice of appeal will result in a defective notice of appeal, to be disposed of on a case by case basis.
The amendments to Rule 905 and 1925, adopted January 13, 2009....included new sub-sections applicable only to children’s fast track cases. Rule 905(a)(2) provides in pertinent part: “If the appeal is a children’s fast track appeal, the concise statement of errors complained of on appeal as described in Rule 1925(a)(2) shall be filed with the notice of appeal and served in accordance with Rule 1925(b)(1).” Pa.R.A.P. 905(a)(2) (emphasis added).
Rule 1925(a)(2)(i) states: “The concise statement of errors complained of on appeal shall be filed and served with the notice of appeal as required by Rule 905. See Pa.R.A.P. 905(a)(2).” Pa.R.A.P. 1925(a)(2)(i) (emphasis added).
While both rules require the contemporaneous filing of a notice of appeal and concise statement, there are no provisions defining the effect on the appellant’s appeal of the failure to comply. We find however, that rule 905(a)(2) is procedural, not jurisdictional; therefore, we are not divested of our jurisdiction by non-compliance. Instead, we find that failure to comply with Rule 905(a)(2) will result in a defective notice of appeal.
“The extreme action of dismissal should be imposed by an appellate court sparingly, and clearly would be inappropriate when there has been substantial compliance with the rules and when the party [moving for quashal of the appeal] has suffered no prejudice.” Stout v. Universal Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980).
Accordingly, as there is no per se rule requiring quashal or dismissal of a defective notice of appeal, we hold that in the instant case and henceforth, the failure of an appellant in a children’s fast track case to file contemporaneously a concise statement with the notice of appeal pursuant to rules 905(a)(2) and 1925(a)(2), will result in a defective notice of appeal. The disposition of the defective notice of appeal will then be decided on a case by case basis under the guidelines set forth in Stout.
Wednesday, October 21, 2009
criminal records - expungement - divulging of expunged record not a due process violation
Nuñez v. Pachman - 3d Circuit - August 26, 2009
http://www.ca3.uscourts.gov/opinarch/083314p.pdf
Disclosure of an expunged criminal record held not to violate the federal due process clause.
The fact that a New Jersey statute law mandates removal of an expunged record from all public documents does not create a reasonable expectation of privacy in this information.
Because expungement is available only after a minimum statutory period of ten years has elapsed, and because references to a defendant’s criminal conduct may persist in public news sources after expungement, the information expunged is never truly “private.”
Even if the state recognizes a privacy interest in an expunged criminal record, the court decided that "such an interest is not cognizable under the federal constitution," whose protection of privacy is "significantly narrow that the right of privacy protected by state tort law." (emphasis in original) The state statute does not "harden the right of privacy into a constitutional right."
Query: Does Pennsylvania constitution offer greater protection of privacy that New Jersey's? See, Seth Kreimer, "The Right to Privacy in the Pennsylvania Constitution," in The Pennsylvania Constitution: A Treatise on Rights and Liberties at 785-819.
http://www.ca3.uscourts.gov/opinarch/083314p.pdf
Disclosure of an expunged criminal record held not to violate the federal due process clause.
The fact that a New Jersey statute law mandates removal of an expunged record from all public documents does not create a reasonable expectation of privacy in this information.
Because expungement is available only after a minimum statutory period of ten years has elapsed, and because references to a defendant’s criminal conduct may persist in public news sources after expungement, the information expunged is never truly “private.”
Even if the state recognizes a privacy interest in an expunged criminal record, the court decided that "such an interest is not cognizable under the federal constitution," whose protection of privacy is "significantly narrow that the right of privacy protected by state tort law." (emphasis in original) The state statute does not "harden the right of privacy into a constitutional right."
Query: Does Pennsylvania constitution offer greater protection of privacy that New Jersey's? See, Seth Kreimer, "The Right to Privacy in the Pennsylvania Constitution," in The Pennsylvania Constitution: A Treatise on Rights and Liberties at 785-819.
UC - subpoena duces tecum - enforcement, cost of producing records
Hahn v. UCBR - Cmwlth. Court - October 21, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2262CD08_10-21-09.pdf
Subpoena duces tecum
The UCBR did not err in failing to enforce a subpoena duces tecum against the employer, where the phone company and not the employer was in possession of the relevant records.
Cost of producing records - 43 P.S. 826
The employer raised the excessive cost of producing records as an issue in the case. The decision did not involve this issue, but the court noted that "neither party in this case cites to or relies upon...43 P.S. § 826 [sec. 506 of the UC Law] to argue that the fee to be paid to [phone company] for production of the phone records should have been set by the Board and paid out of the Board’s Administration Fund.
Section 506 states, in relevant part: The department and the board shall have power to issue summons or subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this act. . . . Witnesses subpoenaed pursuant to this act shall be allowed reasonable fees and expenses at a rate fixed by the department. Such fees and all expenses of proceedings involving disputed claims shall be deemed a part of the expense of administering this act and shall be paid from the Administration Fund. 43 P.S. § 826 (emphasis added). As neither party has argued that the Board should have fixed a fee for the production of the records, and paid such fee, we shall not address the issue sua sponte.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2262CD08_10-21-09.pdf
Subpoena duces tecum
The UCBR did not err in failing to enforce a subpoena duces tecum against the employer, where the phone company and not the employer was in possession of the relevant records.
Cost of producing records - 43 P.S. 826
The employer raised the excessive cost of producing records as an issue in the case. The decision did not involve this issue, but the court noted that "neither party in this case cites to or relies upon...43 P.S. § 826 [sec. 506 of the UC Law] to argue that the fee to be paid to [phone company] for production of the phone records should have been set by the Board and paid out of the Board’s Administration Fund.
Section 506 states, in relevant part: The department and the board shall have power to issue summons or subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this act. . . . Witnesses subpoenaed pursuant to this act shall be allowed reasonable fees and expenses at a rate fixed by the department. Such fees and all expenses of proceedings involving disputed claims shall be deemed a part of the expense of administering this act and shall be paid from the Administration Fund. 43 P.S. § 826 (emphasis added). As neither party has argued that the Board should have fixed a fee for the production of the records, and paid such fee, we shall not address the issue sua sponte.
Tuesday, October 20, 2009
mootness - case or controversy
Harris, et al. v. Rendell, et al. - Cmwlth. Court -
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/504MD08_10-19-09.pdf
This case has to do with the parole board, but there is interesting language in it about mootness, case/controversy. Interesting and important in itself. Some of it may also have relevance to the standing question in foreclosure cases.
_______________________
Under the mootness doctrine, "an actual case or controversy must be extant at all stages of review, not merely at the time the complaint is filed." Pub.Defender's Office of Venango County v. Venango County Court of Common Pleas, 586 Pa. 317, 325, 893 A.2d 1275, 1279 (2006) [quoting Pap's A.M. v. City of Erie, 571 Pa. 375, 389, 812 A.2d 591, 599-600 (2002)]. The existence of a case or controversy requires "a real and not a hypothetical legal controversy and one that affects another in a concrete manner so as to provide a factual predicate for reasoned adjudication …." City of Philadelphia v. SEPTA, 937 A.2d 1176, 1179 (Pa. Cmwlth. 2007).
As the Pennsylvania Supreme Court explained: The cases presenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten under way—changes in the facts or in the law—which allegedly deprive the litigant of the necessary stake in the outcome. Pap's A.M., 571 Pa. at 389, 812 A.2d at 599-600 (2002) [quoting In re Cain, 527 Pa. 260, 263, 590 A.2d 291, 292 (1991)].
It is well settled that the courts "do not render decisions in the abstract or offer purely advisory opinions." Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 203, 888 A.2d 655, 659 (2005). Judicial intervention "is appropriate only where the underlying controversy is real and concrete, rather than abstract." City of Philadelphia v. Commonwealth, 575 Pa. 542, 559, 838 A.2d 566, 577 (2003)....
Under the exceptions to the mootness doctrine, the court may consider technically moot issues "where the conduct complained of is capable of repetition yet likely to evade review, where the case involves issues important to the public interest or where a party will suffer some detriment without the court's decision." Sierra Club v. Pa. Public Utility Comm'n, 702 A.2d 1131, 1134 (Pa. Cmwlth. 1997), aff'd, 557 Pa. 11, 731 A.2d 133 (1999). It is within the court's "discretion to decide substantial questions, otherwise moot, that are capable of repetition unless settled." In re Bishop, 717 A.2d 1114, 1116 (Pa. Cmwlth. 1998).
[There are] cases in which the courts decided to review technically moot issues. See, e.g., Jersey Shore Area Sch. Dist. v. Jersey Shore Educ. Ass'n, 519 Pa. 398, 548 A.2d 1202 (1988) (the legality of teachers' strike was one of important public interest and capable of repetition yet apt to evade review); Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa. 56, 373 A.2d 748 (1977) (the trial court's issuance of preliminary injunction would escape appellate review because the effect of the injunction would terminate before review); Lutz v. Tanglwood Lakes Cmty. Ass'n, 866 A.2d 471 (Pa. Cmwlth. 2005), appeal granted in part, 583 Pa. 508, 880 A.2d 502 (2005) (the issue concerning dismissal of a nonprofit corporation's directors was of great public importance to the governance of nonprofit corporations and likely to reoccur because directors' terms would likely expire before final resolution of any legal challenge to their removal); Coady v. Pa. Bd. of Prob. & Parole, 804 A.2d 121 (Pa. Cmwlth. 2002) (the constitutionality of the 1996 amendment to the Parole Act, as applied to inmates who had been convicted prior to the amendment, was a matter of great public importance; the court noted the federal district court's earlier ruling that the amendment, as applied, violated the ex post facto clause).
[T]he great public importance exception to the mootness doctrine "is generally confined to a narrow category of cases." Bottomer v. Progressive Cas. Ins. Co., 580 Pa. 114, 120, 859 A.2d 1282, 1285 (2004). As our Supreme Court stated in Wortex Mills, Inc. v. Textile Workers Union of America, 369 Pa. 359, 370, 85 A.2d 851, 857 (1952): It is only in very rare cases where exceptional circumstances exist or where matters or questions of great public importance are involved, that this court ever decides moot questions or erects guideposts for future conduct or actions. … [The issues] will not be anticipated but will be dealt with only as they are appropriately raised upon a record before us.
A controlling factor in determining whether the moot questions may be appropriately reviewed under the great public importance exception is whether "the legislature obviously recognized the significance of [such] questions." In re Gross, 476 Pa. at 215, 382 A.2d at 123. If the statute "deals squarely with the issues," the case does not fall within the great public importance exception.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/504MD08_10-19-09.pdf
This case has to do with the parole board, but there is interesting language in it about mootness, case/controversy. Interesting and important in itself. Some of it may also have relevance to the standing question in foreclosure cases.
_______________________
Under the mootness doctrine, "an actual case or controversy must be extant at all stages of review, not merely at the time the complaint is filed." Pub.Defender's Office of Venango County v. Venango County Court of Common Pleas, 586 Pa. 317, 325, 893 A.2d 1275, 1279 (2006) [quoting Pap's A.M. v. City of Erie, 571 Pa. 375, 389, 812 A.2d 591, 599-600 (2002)]. The existence of a case or controversy requires "a real and not a hypothetical legal controversy and one that affects another in a concrete manner so as to provide a factual predicate for reasoned adjudication …." City of Philadelphia v. SEPTA, 937 A.2d 1176, 1179 (Pa. Cmwlth. 2007).
As the Pennsylvania Supreme Court explained: The cases presenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten under way—changes in the facts or in the law—which allegedly deprive the litigant of the necessary stake in the outcome. Pap's A.M., 571 Pa. at 389, 812 A.2d at 599-600 (2002) [quoting In re Cain, 527 Pa. 260, 263, 590 A.2d 291, 292 (1991)].
It is well settled that the courts "do not render decisions in the abstract or offer purely advisory opinions." Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 203, 888 A.2d 655, 659 (2005). Judicial intervention "is appropriate only where the underlying controversy is real and concrete, rather than abstract." City of Philadelphia v. Commonwealth, 575 Pa. 542, 559, 838 A.2d 566, 577 (2003)....
Under the exceptions to the mootness doctrine, the court may consider technically moot issues "where the conduct complained of is capable of repetition yet likely to evade review, where the case involves issues important to the public interest or where a party will suffer some detriment without the court's decision." Sierra Club v. Pa. Public Utility Comm'n, 702 A.2d 1131, 1134 (Pa. Cmwlth. 1997), aff'd, 557 Pa. 11, 731 A.2d 133 (1999). It is within the court's "discretion to decide substantial questions, otherwise moot, that are capable of repetition unless settled." In re Bishop, 717 A.2d 1114, 1116 (Pa. Cmwlth. 1998).
[There are] cases in which the courts decided to review technically moot issues. See, e.g., Jersey Shore Area Sch. Dist. v. Jersey Shore Educ. Ass'n, 519 Pa. 398, 548 A.2d 1202 (1988) (the legality of teachers' strike was one of important public interest and capable of repetition yet apt to evade review); Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa. 56, 373 A.2d 748 (1977) (the trial court's issuance of preliminary injunction would escape appellate review because the effect of the injunction would terminate before review); Lutz v. Tanglwood Lakes Cmty. Ass'n, 866 A.2d 471 (Pa. Cmwlth. 2005), appeal granted in part, 583 Pa. 508, 880 A.2d 502 (2005) (the issue concerning dismissal of a nonprofit corporation's directors was of great public importance to the governance of nonprofit corporations and likely to reoccur because directors' terms would likely expire before final resolution of any legal challenge to their removal); Coady v. Pa. Bd. of Prob. & Parole, 804 A.2d 121 (Pa. Cmwlth. 2002) (the constitutionality of the 1996 amendment to the Parole Act, as applied to inmates who had been convicted prior to the amendment, was a matter of great public importance; the court noted the federal district court's earlier ruling that the amendment, as applied, violated the ex post facto clause).
[T]he great public importance exception to the mootness doctrine "is generally confined to a narrow category of cases." Bottomer v. Progressive Cas. Ins. Co., 580 Pa. 114, 120, 859 A.2d 1282, 1285 (2004). As our Supreme Court stated in Wortex Mills, Inc. v. Textile Workers Union of America, 369 Pa. 359, 370, 85 A.2d 851, 857 (1952): It is only in very rare cases where exceptional circumstances exist or where matters or questions of great public importance are involved, that this court ever decides moot questions or erects guideposts for future conduct or actions. … [The issues] will not be anticipated but will be dealt with only as they are appropriately raised upon a record before us.
A controlling factor in determining whether the moot questions may be appropriately reviewed under the great public importance exception is whether "the legislature obviously recognized the significance of [such] questions." In re Gross, 476 Pa. at 215, 382 A.2d at 123. If the statute "deals squarely with the issues," the case does not fall within the great public importance exception.
Monday, October 19, 2009
UC - referee duty to unrepresented claimant - sexual harassment
Murray v. UCBR - Cmwlth. Court - October 19, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/820CD09_10-19-09.pdf
This case was not reported, but it has some useful things in it, nonetheless.
Referee duty to unrepresented claimant -
When a party is unaccompanied by counsel at a hearing before the referee, the referee is charged with a heightened responsibility of supervising the presentation of evidence. Drs. Katsur & Associates v. UCBR, 509 A.2d 926 (Pa. Cmwlth. 1986). The referee must act reasonably in assisting an unrepresented party’s development of necessary facts but need not advise a party on evidentiary questions or specific points of law. Bennett. The referee must advise a claimant of his right to be represented by counsel, to offer witnesses and to cross-examine adverse witnesses. Catanese v. UCBR, 452 A.2d 929 (Pa. Cmwlth. 1982). However, it is true that a referee need not advise a claimant with respect to the conduct of the hearing at every stage. Rohrbach v. UCBR, 450 A.2d 323 (Pa. Cmwlth. 1982). Any failure to develop an adequate record must be shown to be prejudicial to the claimant; mere harmless error will not support a reversal. Snow v. UCBR, 433 A.2d 922 (Pa. Cmwlth. 1981).
In Bennett v. UCBR, 445 A.2d 258 (Pa. Cmwlth. 1982), the claimant alleged that she was not afforded a full and fair hearing as the referee failed to assist her in developing relevant testimony, inter alia, “alleged sexual harassment by patrons of which her employer was aware but did not remedy.” This Court concluded that the “very sparse record” and the “two-page hearing transcript . . . of which only less than half of a page is germane to" the issues "revealed that the referee did not ask sufficient questions to aid the claimant in establishing a necessitous and compelling cause for leaving her job. Bennett, 445 A.2d at 459. We also noted, that the referee did not inform claimant of her right to counsel or to cross-examine witnesses, and, thus, the hearing was less than “full and fair.” Thus, we concluded that the referee should have more “thoroughly and reasonably extracted testimony” on these issues. Id.
Here, however, although claimant correctly recited the law, her allegation that the referee failed to properly help her develop the record and establish facts that were supportive of her claim is unsupported by evidence of record. Moroever, the referee told claimant of her right to counsel and other rights, explained the hearing procedures, asked questions of her and attempted to elicit relevant testimony.
Sexual harassment
Sexual harassment can be a necessitous and compelling reason for separating from employment, provided the employee has taken reasonable and prudent steps to alleviate the problem. Weissman v. Unemployment Compensation Board of Review, 502 A.2d 782 (Pa. Cmwlth. 1986). Thus, a claimant must establish that she took “common sense action” such that the employer was aware of the nature of the objection. Colduvell v. Unemployment Compensation Board of Review, 408 A.2d 1207 (Pa. Cmwlth. 1979). See Homan v. Unemployment Compensation Board of Review, 527 A.2d 1109 (Pa. Cmwlth. 1987) and Collier Stone Company v. Unemployment Compensation Board of Review, 876 A.2d 481 (Pa. Cmwlth. 2005); Comitalo v. UCBR, 737 A.2d 342 (Pa. Cmwlth. 1999).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/820CD09_10-19-09.pdf
This case was not reported, but it has some useful things in it, nonetheless.
Referee duty to unrepresented claimant -
When a party is unaccompanied by counsel at a hearing before the referee, the referee is charged with a heightened responsibility of supervising the presentation of evidence. Drs. Katsur & Associates v. UCBR, 509 A.2d 926 (Pa. Cmwlth. 1986). The referee must act reasonably in assisting an unrepresented party’s development of necessary facts but need not advise a party on evidentiary questions or specific points of law. Bennett. The referee must advise a claimant of his right to be represented by counsel, to offer witnesses and to cross-examine adverse witnesses. Catanese v. UCBR, 452 A.2d 929 (Pa. Cmwlth. 1982). However, it is true that a referee need not advise a claimant with respect to the conduct of the hearing at every stage. Rohrbach v. UCBR, 450 A.2d 323 (Pa. Cmwlth. 1982). Any failure to develop an adequate record must be shown to be prejudicial to the claimant; mere harmless error will not support a reversal. Snow v. UCBR, 433 A.2d 922 (Pa. Cmwlth. 1981).
In Bennett v. UCBR, 445 A.2d 258 (Pa. Cmwlth. 1982), the claimant alleged that she was not afforded a full and fair hearing as the referee failed to assist her in developing relevant testimony, inter alia, “alleged sexual harassment by patrons of which her employer was aware but did not remedy.” This Court concluded that the “very sparse record” and the “two-page hearing transcript . . . of which only less than half of a page is germane to" the issues "revealed that the referee did not ask sufficient questions to aid the claimant in establishing a necessitous and compelling cause for leaving her job. Bennett, 445 A.2d at 459. We also noted, that the referee did not inform claimant of her right to counsel or to cross-examine witnesses, and, thus, the hearing was less than “full and fair.” Thus, we concluded that the referee should have more “thoroughly and reasonably extracted testimony” on these issues. Id.
Here, however, although claimant correctly recited the law, her allegation that the referee failed to properly help her develop the record and establish facts that were supportive of her claim is unsupported by evidence of record. Moroever, the referee told claimant of her right to counsel and other rights, explained the hearing procedures, asked questions of her and attempted to elicit relevant testimony.
Sexual harassment
Sexual harassment can be a necessitous and compelling reason for separating from employment, provided the employee has taken reasonable and prudent steps to alleviate the problem. Weissman v. Unemployment Compensation Board of Review, 502 A.2d 782 (Pa. Cmwlth. 1986). Thus, a claimant must establish that she took “common sense action” such that the employer was aware of the nature of the objection. Colduvell v. Unemployment Compensation Board of Review, 408 A.2d 1207 (Pa. Cmwlth. 1979). See Homan v. Unemployment Compensation Board of Review, 527 A.2d 1109 (Pa. Cmwlth. 1987) and Collier Stone Company v. Unemployment Compensation Board of Review, 876 A.2d 481 (Pa. Cmwlth. 2005); Comitalo v. UCBR, 737 A.2d 342 (Pa. Cmwlth. 1999).
UC - voluntary quit - length of commute
Blazowich v. UCBR - Cmwlth. Court - October 19, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/754CD09_10-19-09.pdf
Transportation inconveniences constitute a necessitous and compelling reason for voluntary termination “only where they are ‘so serious and unreasonable as to present a virtually insurmountable problem and the claimant must demonstrate that he or she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship.’” Musguire v. UCBR, 415 A.2d 708, 709 (Pa. Cmwlth. 1980) (quoting Lee v. UCBR, 401 A.2d 12, 13 (Pa. Cmwlth. 1979).
A fifty-mile one-way commute, without more, does not constitute a necessitous and compelling reason to quit. Kieley v. UCBR, 471 A.2d 1345 (Pa. Cmwlth. 1984). Furthermore, a claimant who has not tried a sixty-mile commute, even for a single day, before severing the employment relationship, has not taken reasonable steps to overcome transportation problems. Musguire. Here, Claimant would have had to travel a distance of only twenty-five miles, and Claimant did not attempt commuting to the new assignment, not even once, before refusing Employer’s offer. Thus, Claimant has failed to establish a necessitous and compelling reason for terminating employment.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/754CD09_10-19-09.pdf
Transportation inconveniences constitute a necessitous and compelling reason for voluntary termination “only where they are ‘so serious and unreasonable as to present a virtually insurmountable problem and the claimant must demonstrate that he or she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship.’” Musguire v. UCBR, 415 A.2d 708, 709 (Pa. Cmwlth. 1980) (quoting Lee v. UCBR, 401 A.2d 12, 13 (Pa. Cmwlth. 1979).
A fifty-mile one-way commute, without more, does not constitute a necessitous and compelling reason to quit. Kieley v. UCBR, 471 A.2d 1345 (Pa. Cmwlth. 1984). Furthermore, a claimant who has not tried a sixty-mile commute, even for a single day, before severing the employment relationship, has not taken reasonable steps to overcome transportation problems. Musguire. Here, Claimant would have had to travel a distance of only twenty-five miles, and Claimant did not attempt commuting to the new assignment, not even once, before refusing Employer’s offer. Thus, Claimant has failed to establish a necessitous and compelling reason for terminating employment.
UC - vol. quit - safety of claimant v. safety of others
Green Tree School v. UCBR - Cmwlth. Court - October 19, 2009 (2-1)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/7CD09_10-19-09.pdf
Majority
The court reversed the UCBR and held that Claimant’s stated safety concerns and Employer’s refusal to allow her to participate in a staffing decision gave her necessitous and compelling reasons to resign. Concluding that they did not, we reverse the Board.
Employer is a private school for children with autism and emotional disturbances, where Claimant worked for seven years as the Director of Education. She quit her job when another job position, behavior health coordinator -- which was occupied by her life partner -- was eliminated, without any consultation with the claimant.
Claimant submitted a resignation letter to the school’s board of directors that its “decision to cut the position of Behavior Coordinator for the coming year … has resulted in my resignation.” The board accepted the resignation.
The court agreed with the Employer contention that claimant’s concerns regarding the “physical and emotional safety” of the persons at the school was speculative and that claimant did not take reasonable steps to preserve her employment.
The court rejected claimant's argument that the elimination of the position made the school unsafe for the children, citing only cases about a claimant's own personal safety. "There is simply a disconnect between the harm posited by claimant and her personal safety....The test is not whether a claimant’s belief is a genuine one. Rather, the test is whether the claimant has demonstrated that the workplace environment has placed “real,” i.e., actual and extreme, pressure on the claimant....Claimant’s self-serving testimony did not demonstrate that she was unsafe or that the workplace was unsafe with the kind of objective evidence presented" in other cases.
The exclusion of the claimant from the staffing decision did not give her good cause to quit either. "Employees do not enjoy a general right to participate in management decisions, such as how many staff are needed in another department. In addition, [the school director] explained that claimant should not have been involved in this particular personnel decision precisely because of her relationship with" the employee whose position was eliminated -- her life partner.
Claimant also "failed in her duty to preserve employment." It was "not her prerogative" to make a demand to be involved in the staffing position. She quit before waiting to seehow the staffing change would affect her or the school before announcing her resignation. "Claimant simply issued an ultimatum to Employer that it yield to her views, but the ultimatum did not satisfy her duty to preserve employment."
Dissent
Without addressing the issue head-on, the dissent said that danger to the children, and just claimant, would constitute good cause, and that the claimant had established such a danger. The dissent felt that claimant notified the employer of the problem in advance of quitting and left the job only when the employer did not address the problem.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/7CD09_10-19-09.pdf
Majority
The court reversed the UCBR and held that Claimant’s stated safety concerns and Employer’s refusal to allow her to participate in a staffing decision gave her necessitous and compelling reasons to resign. Concluding that they did not, we reverse the Board.
Employer is a private school for children with autism and emotional disturbances, where Claimant worked for seven years as the Director of Education. She quit her job when another job position, behavior health coordinator -- which was occupied by her life partner -- was eliminated, without any consultation with the claimant.
Claimant submitted a resignation letter to the school’s board of directors that its “decision to cut the position of Behavior Coordinator for the coming year … has resulted in my resignation.” The board accepted the resignation.
The court agreed with the Employer contention that claimant’s concerns regarding the “physical and emotional safety” of the persons at the school was speculative and that claimant did not take reasonable steps to preserve her employment.
The court rejected claimant's argument that the elimination of the position made the school unsafe for the children, citing only cases about a claimant's own personal safety. "There is simply a disconnect between the harm posited by claimant and her personal safety....The test is not whether a claimant’s belief is a genuine one. Rather, the test is whether the claimant has demonstrated that the workplace environment has placed “real,” i.e., actual and extreme, pressure on the claimant....Claimant’s self-serving testimony did not demonstrate that she was unsafe or that the workplace was unsafe with the kind of objective evidence presented" in other cases.
The exclusion of the claimant from the staffing decision did not give her good cause to quit either. "Employees do not enjoy a general right to participate in management decisions, such as how many staff are needed in another department. In addition, [the school director] explained that claimant should not have been involved in this particular personnel decision precisely because of her relationship with" the employee whose position was eliminated -- her life partner.
Claimant also "failed in her duty to preserve employment." It was "not her prerogative" to make a demand to be involved in the staffing position. She quit before waiting to seehow the staffing change would affect her or the school before announcing her resignation. "Claimant simply issued an ultimatum to Employer that it yield to her views, but the ultimatum did not satisfy her duty to preserve employment."
Dissent
Without addressing the issue head-on, the dissent said that danger to the children, and just claimant, would constitute good cause, and that the claimant had established such a danger. The dissent felt that claimant notified the employer of the problem in advance of quitting and left the job only when the employer did not address the problem.
Thursday, October 15, 2009
tax sale - notice
Lerza-Keubler v. Monroe County Tax Claim Bureau - Cmwlth. Court - October 15, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/174CD09_10-15-09.pdf
The court set aside a tax sale because, after the post office returned the tax sale notices unclaimed, the Bureau failed to make a reasonable effort to notify the owner of the tax sale by calling the telephone number the tax claim bureau had for the deceased owner, which was the same telephone number of the executrix, who was living at the property. Such a failure can be cured by showing actual notice, but proof of that was lacking here.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/174CD09_10-15-09.pdf
The court set aside a tax sale because, after the post office returned the tax sale notices unclaimed, the Bureau failed to make a reasonable effort to notify the owner of the tax sale by calling the telephone number the tax claim bureau had for the deceased owner, which was the same telephone number of the executrix, who was living at the property. Such a failure can be cured by showing actual notice, but proof of that was lacking here.
UC - willful misconduct - prior incidents v. final incident
Philadelphia Parking Authority v. UCBR - Cmwlth. Court - October 15, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2335CD08_10-15-09.pdf
"Notwithstanding a history of job-related misconduct, an employer must still prove that the final incident of misconduct for which a claimant was purportedly terminated contained an element of willfulness; should the employer fail to establish that the final incident constituted willful conduct, the employer has also failed to prove the required causal connection between the claimant’s purported culpable behavior, and the termination. See SEPTA v. UCBR, 525 A.2d 458 (Pa. Cmwlth. 1987); Crib Diaper Service v. UCBR, 98 A.2d 490 (Pa. Super. 1953). As such, Employer’s arguments regarding Claimant’s prior alleged instances of misconduct are of no moment to the issue on appeal sub judice."
__._,_.___
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2335CD08_10-15-09.pdf
"Notwithstanding a history of job-related misconduct, an employer must still prove that the final incident of misconduct for which a claimant was purportedly terminated contained an element of willfulness; should the employer fail to establish that the final incident constituted willful conduct, the employer has also failed to prove the required causal connection between the claimant’s purported culpable behavior, and the termination. See SEPTA v. UCBR, 525 A.2d 458 (Pa. Cmwlth. 1987); Crib Diaper Service v. UCBR, 98 A.2d 490 (Pa. Super. 1953). As such, Employer’s arguments regarding Claimant’s prior alleged instances of misconduct are of no moment to the issue on appeal sub judice."
__._,_.___
Tuesday, October 06, 2009
municipal ordinances - adoption - void ab initio doctrine
Hawk v. Eldred Twp. Board of Supervisors - Cmwlth. Court - October 6, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/218CD09_10-6-09.pdf
Township zoning ordinance held to be not void ab initio, despite some defects in adoption under the Municipal Planning Code, 53 P.S. §§10101-11202, because, inter alia, the appellant did not challenge the ordinance until 4 years after its adoption. Moreover, "the public was repeatedly informed of every meeting concerning the creation and enactment of the Ordinance in a newspaper of general circulation, a reasonable forum for providing such notice which is tantamount to the notice that it would have received if the statutory requirements would have been followed. [The appellant] had every opportunity for years to attend a meeting and for months to view the Ordinance and could have challenged it from its inception. But he did not. Because he waited for four years and had not been deprived of any constitutional right, he is time barred from challenging the validity of the Ordinance."
The doctrine of void ab initio is a legal theory stating that a statute held unconstitutional is void in its entirety and is treated as if it had never existed. For a thorough discussion of the history of the void ab initio doctrine, see Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 143-45, 907 A.2d 1033, 1037-38 (2006). See also Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board, 972 A.2d 136, 142-43 (Pa. Cmwlth. 2009), where the court counseled against "an overly aggressive application of the doctrine could result in excessive uncertainty...."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/218CD09_10-6-09.pdf
Township zoning ordinance held to be not void ab initio, despite some defects in adoption under the Municipal Planning Code, 53 P.S. §§10101-11202, because, inter alia, the appellant did not challenge the ordinance until 4 years after its adoption. Moreover, "the public was repeatedly informed of every meeting concerning the creation and enactment of the Ordinance in a newspaper of general circulation, a reasonable forum for providing such notice which is tantamount to the notice that it would have received if the statutory requirements would have been followed. [The appellant] had every opportunity for years to attend a meeting and for months to view the Ordinance and could have challenged it from its inception. But he did not. Because he waited for four years and had not been deprived of any constitutional right, he is time barred from challenging the validity of the Ordinance."
The doctrine of void ab initio is a legal theory stating that a statute held unconstitutional is void in its entirety and is treated as if it had never existed. For a thorough discussion of the history of the void ab initio doctrine, see Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 143-45, 907 A.2d 1033, 1037-38 (2006). See also Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board, 972 A.2d 136, 142-43 (Pa. Cmwlth. 2009), where the court counseled against "an overly aggressive application of the doctrine could result in excessive uncertainty...."
handicapped - negligent placement of wheelchair ramp on bus - sovereign immunity
Mannella v. Port Authority of Allegheny County - Cmwlth. Court - October 6, 2009 (2-1 decision)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/5CD09_10-6-09.pdf
The court held that a bus driver’s alleged negligent placement of a bus wheelchair ramp does not fall within the vehicle exception to sovereign immunity under Section 8522(b)(1) of the Judicial Code, 42 Pa. C.S. §8522(b)(1), because it was undisputed that neither the bus nor the wheelchair ramp was in operation at the time of the accident.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/5CD09_10-6-09.pdf
The court held that a bus driver’s alleged negligent placement of a bus wheelchair ramp does not fall within the vehicle exception to sovereign immunity under Section 8522(b)(1) of the Judicial Code, 42 Pa. C.S. §8522(b)(1), because it was undisputed that neither the bus nor the wheelchair ramp was in operation at the time of the accident.
Monday, October 05, 2009
insurance - rates - Consumer Protection Law - exhaustion of remedies under insurance statutes not required
White v. Conestoga Title Insurance Company - Superior Court - October 2, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/S24030_09.pdf
Plaintiff need not exhaust admininistrative remedies under the Title Insurance Companies Act (TICA), 40 P.S. sec. 910-1 et seq. or the Unfair Insurance Practices Act (UIPA), 40 P.S. 1171.1 et seq., , before bringing an action against an insurance company under the Consumer Protection Law, 73 P.S. sec. 201-1 et seq., based on a claim that the company systematically failed to give plaintiff (and the class) the discounted insurance rates for refinancing transactions, as mandated by the approved rate structure, and thus "engaged in deceptive business practices and pervasively overcharged poilicy holders...by charging the highest approved rate, regardless of consumers' qualification for a discounted rate."
The Court relied on its decision in In Pekular v. Eich, 513 A.2d 427 (Pa. Super. 1986), appeal denied, 516 Pa. 635, 533 A.2d 93 (1987), where it held that the UIPA was not an exclusive administrative remedy, even though the alleged actions may fall within its definitional language. The Court ruled that a plaintiff, when not directly or indirectly claiming a violation of the UIPA, could bring a private action under the CPL for statutorily defined wrongs, because “the limited penalties of the [UIPA] do not represent the sole and exclusive deterrent to alleged unfair or deceptive acts of insurers and their agents.” The Court noted that the Pekular decision has been followed by subsequent panels in Wright v. North American Life Assurance Company, 539 A.2d 434 (Pa. Super. 1988) and Hardy v. Pennock Insurance Agency, Inc., 529 A.2d 471 (Pa. Super. 1987).
The Court said that it was "incongruous" for the insurance company "to suggest that the Legislature intended the TICA to control and be the exclusive administrative remedy for claims of unfair and deceptive insurance practices that only tangentially relate to insurance rates, " and that neither the UIPA nor the TICA provided a proper remedy for the wrongs the plaintiff had alleged here. It characterized the defendant's argument as an "attempt to sidestep the consumer protection laws truly at issue here..."
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/S24030_09.pdf
Plaintiff need not exhaust admininistrative remedies under the Title Insurance Companies Act (TICA), 40 P.S. sec. 910-1 et seq. or the Unfair Insurance Practices Act (UIPA), 40 P.S. 1171.1 et seq., , before bringing an action against an insurance company under the Consumer Protection Law, 73 P.S. sec. 201-1 et seq., based on a claim that the company systematically failed to give plaintiff (and the class) the discounted insurance rates for refinancing transactions, as mandated by the approved rate structure, and thus "engaged in deceptive business practices and pervasively overcharged poilicy holders...by charging the highest approved rate, regardless of consumers' qualification for a discounted rate."
The Court relied on its decision in In Pekular v. Eich, 513 A.2d 427 (Pa. Super. 1986), appeal denied, 516 Pa. 635, 533 A.2d 93 (1987), where it held that the UIPA was not an exclusive administrative remedy, even though the alleged actions may fall within its definitional language. The Court ruled that a plaintiff, when not directly or indirectly claiming a violation of the UIPA, could bring a private action under the CPL for statutorily defined wrongs, because “the limited penalties of the [UIPA] do not represent the sole and exclusive deterrent to alleged unfair or deceptive acts of insurers and their agents.” The Court noted that the Pekular decision has been followed by subsequent panels in Wright v. North American Life Assurance Company, 539 A.2d 434 (Pa. Super. 1988) and Hardy v. Pennock Insurance Agency, Inc., 529 A.2d 471 (Pa. Super. 1987).
The Court said that it was "incongruous" for the insurance company "to suggest that the Legislature intended the TICA to control and be the exclusive administrative remedy for claims of unfair and deceptive insurance practices that only tangentially relate to insurance rates, " and that neither the UIPA nor the TICA provided a proper remedy for the wrongs the plaintiff had alleged here. It characterized the defendant's argument as an "attempt to sidestep the consumer protection laws truly at issue here..."
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