bankruptcy - discrimination in hiring - private employer

Rea v. Federated Investors - 3d Cir. - December 16, 2010

http://www.ca3.uscourts.gov/opinarch/101440p.pdf

"In accordance with the majority of other courts to have addressed the issue," the Court held that that 11 U.S.C. § 525(b) does not create a cause of action against private employers who engage in discriminatory hiring. Here, the defendant refused to hire Rea because he had previously declared bankruptcy.

PFA - standing - dating relationship, mutually close, romantic bond

Evans v. Braun - Pa. Super. - December 14, 2010


http://www.pacourts.us/OpPosting/Superior/out/s48038_10.pdf

Applicable to the instant case is the fact that “family or household member” is defined as including “current or former sexual or intimate partners.” 23 Pa.C.S. § 6102(a). Instantly, Evans sought relief under the PFA Act alleging that she and Braun were “sexual or intimate partners.” While the PFA Act does not specifically define that phrase, we examined the meaning of this language in Scott. We began by analyzing the intent of the legislators in enacting the PFA Act, stating:

As we have already made clear, their intent was to prevent domestic violence and to promote peace and safety within domestic, familial and/or romantic relationships. … [T]he persons who undoubtedly fit the Act's definition of family or household members- e.g., spouses, parents, children, relatives, paramours, and persons who undertake romantic relationships-typically share some significant degree of domestic, familial and/or intimate interdependence. There is often an obvious emotional bond. Frequently, these individuals interface in very practical areas of private life - a mutual residence, common family obligations and/or shared involvement in the affairs of day-to-day living. Even in a dating relationship, where the functional interdependence might not be as substantial as in a family, the participants have elected some measure of personal interaction. This interaction often involves emotional or private concerns not unlike those found in family settings, albeit not normally as extensive or as intense. In sum, the persons protected by the Act as family or household members have a connection rooted in blood, marriage, family-standing, or a chosen romantic relationship.Scott, 928 A.2d at 315.

With this rationale in mind, we construed the word “partners” “to mean those persons who mutually chose to enter relationships.” Id. at 316. This interpretation, we concluded, “give[s] effect to the provisions of the statute in a way that promotes its purpose of preventing violence among people with a domestic, familial or romantic bond, past or present.” Id.

Applying our reasoning in Scott instantly, we conclude that Evans presented sufficient evidence to prove that she and Braun “mutually chose” to enter a “dating relationship” which involved a “romantic bond,” albeit short-lived. See id. at 315-16. Evans testified at the final PFA hearing that she and Braun “dated twice.” N.T. PFA Hearing, 1/21/10, at 5. She stated that after going to a play on their second date, Braun drove her back to his house because he wanted her to meet his son. Id. at 8. On the night that Braun threatened her with a gun at Dilly’s, Evans stated that she invited him to the bar-restaurant to apologize. Id. at 12. She explained why she was apologizing, stating:

[I was apologizing] [b]ecause I had been very straightforward with him, said some things that he might have interpreted to be unkind. I lost my husband a year and a half ago. I’ve been going very slow, trying to go very slow in relationships. And he’s very pushy and wanted things that I was not ready for. Id. at 12.

After Evans testified, she called Ms. Harnish to the stand. Ms. Harnish claimed that on the night Braun threatened Evans at Dilly’s, Evans confided in Ms. Harnish about Braun. See id. at 24-26. During this conversation, Evans told Ms. Harnish that Braun had told her that he loved her. Id. at 26.

Based on this testimony, we conclude that there was sufficient evidence presented that Braun and Evans mutually chose to enter a dating relationship which, pursuant to Scott, qualifies as a “sexual or intimate partnership” under the PFA Act. As noted in Scott, dating relationships such as this may not have a “functional independence … as substantial as in a family” but, nonetheless, Evans and Braun “elected some measure of personal interaction.” See Scott, 928 A.2d at 315.

Furthermore, we note that our conclusion is supported by the fact that “the Act was passed because the criminal law was sometimes an inadequate mechanism for dealing with violence that arose in the intimate environs of domestic life.” Scott, 928 A.2d at 315. In this case, criminal law proved to be an ineffective avenue for Evans to seek protection from Braun. Despite the fact that Braun twice showed Evans a gun and made threatening comments like “he could put a very big hole in her,” and “he still had the gun, and was not afraid to use it,” the police did not pursue a criminal investigation or charges against Braun. See T.C.O. 2-3. Instead, they directed Evans to WIN. Arguably, this is precisely the type of scenario that the Legislature intended the PFA Act to address, which bolsters our conclusion that Evans had standing to seek protection under that statute.

In sum, therefore, the trial court did not commit an error of law in concluding that Evans qualified as a member of the class of people protected by the PFA Act. Accordingly, the court did not err in denying Braun’s motion for a directed verdict, nor in granting Evans a final PFA order against Braun.

Order affirmed.

Judge Cleland files a dissenting statement.

UC - eligibility - agreement between employer and employee not valid

Pitt Chemical and Sanitary Supply v. UCBR - December 3, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/936CD10_12-3-10.pdf

The sole basis for Employer’s appeal is that the employment contract between Claimant and Employer stated: (1) Claimant would be terminated if he did not meet his sales quota; and (2) Claimant’s failure to meet the sales quota would be the legal equivalent of willful misconduct and, therefore, Claimant would not be entitled to unemployment compensation. In other words, Employer contends that the UCBR erred in awarding unemployment compensation benefits because Claimant had waived the right to file for such benefits. We reject this argument summarily.

Section 701 of the Law, 43 P.S. §861, plainly states that: “No agreement by an employe to waive, release, or commute his rights to compensation, or any other rights under this act, shall be valid.” It is the Law that determines a claimant’s eligibility for unemployment compensation, not the employer. See, e.g., Turner v. Unemployment Compensation Board of Review, 381 A.2d 223, 224 (Pa. Cmwlth. 1978) (“It is not for an employee and employer to determine eligibility for benefits by agreement.”) Therefore, the provisions of any contract in which an employee waives his or her right to unemployment compensation is unenforceable.

disability - opinion of "not acceptable medical source"

Douglass v. Astrue - ED Pa. - November 30, 2010


http://www.paed.uscourts.gov/documents/opinions/10D1229P.pdf


This case was remanded because the ALJ did not properly consider the opinion of the claimant's long-time therapist.


SSR 06-03p clarifies "how [the SSA] consider[s] opinions from sources who are not ‘acceptable medical sources.’” SSR 06-03p, 71 Fed. Reg. 45,593 (Aug. 9, 2006). Acceptable medical sources include, inter alia, licensed physicians and licensed or certified psychologists. Id. (citing 20 C.F.R. §§ 404.1513(a), 416.913(a)). “Other sources” include medical sources who are not “acceptable medical sources” and non-medical sources. Id. (citing 20 C.F.R. §§ 404.1513(d), 416.913(d)). Other medical sources include, inter alia, licensed clinical social workers and therapists. Id. (citing 20 C.F.R. §§ 404.1513(d), 416.913(d)).

In this context, this case raises an issue that apparently has not been the subject of a Third Circuit opinion – and no other Circuit opinion with similar facts has been located – to what extent must an ALJ discuss a claimant’s reliance on a medical source who is not an “acceptable medical source” and when can such evidence be deemed sufficient and persuasive enough to warrant the ALJ finding limitations severe enough to justify a finding of “disabled.”

It is clear that “[i]nformation from [not acceptable medical sources] cannot establish the existence of a medically determinable impairment[, but] may provide insight into the severity of the impairment(s) and how it affects the individual’s ability to function.” Id. at 45,595. The regulations do not specify when such evidence is sufficient for finding functional limitations that would justify a finding of “disabled.”

Because “medical sources who are not ‘acceptable medical sources[]’ . . . have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists[, o]pinions from these medical sources . . . are important and should be evaluated on key issues such as impairment severity and functional effects.” Id. The opinions of these sources should be considered along with the other relevant evidence in the file. Id. Further, the factors applied to evaluate the medical opinions from “acceptable medical sources” represent basic principles that apply to the opinions from medical sources who are not “acceptable medical sources.” Id. These factors include:

• How long the source has known and how frequently the source has seen the individual;

• How consistent the opinion is with other evidence;

• The degree to which the source presents relevant evidence to support an opinion;

• How well the source explains the opinion;

• Whether the source has a specialty or area of expertise related to the individual’s impairment(s); and

• Any other factors that tend to support or refute the opinion. Id.

Although each factor for weighing the opinion evidence will not apply in every case, the evaluation of the opinion depends on the particular facts in each case. Id. at 45,595-96. Finally, the ALJ “generally should explain the weight given to opinions from these ‘other sources,’ or otherwise ensure that the discussion of the evidence in the determination or decision allows a . . .subsequent reviewer to follow the [ALJ’s] reasoning, when such opinions have an effect on the outcome of the case.” Id. at 45,596.

In this case, the ALJ analysis of the therapist's assessment of claimant's condition was inadequate. Nowhere in this discussion does the ALJ cite to SSR 06-03p, let alone identify the factors cited above for evaluating an opinion of a medical source who is not an “acceptable medical source.” The ALJ has offered no record citations to permit this Court to review her decision for substantial evidence, in contravention of the mandate in SSR 06-03p to “ensure that the discussion of the evidence in the determination or decision allows a . . . subsequent reviewer to follow the [ALJ’s] reasoning.” SSR 06-03p, 71 Fed. Reg. at 45,596.

The Court found that that the ALJ’s conclusion regarding the therapist's opinion is not supported by substantial evidence. The ALJ rejected the opinion for two reasons: (1) the therapist is not an acceptable medical source, and (2) the opinion lacks support from the mental health evidence in the record, including the therapist's own notes. First, the ALJ is not permitted to outright reject the therapist’s opinion solely because she is not an acceptable medical source. Rather, the ALJ is required to perform the analysis mandated by SSR 06-03p. See Sykes v. Apfel, 228 F.3d 259, 271 (3d Cir. 2000) (asserting that social security rulings are binding on all components of the SSA) (citing Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984)).

Second, the ALJ’s conclusion that the therapist’s opinion lacks support is not supported by substantial evidence. . . .After reviewing the therapist’s notes, this Court finds that without detailed discussion of the entire record, the ALJ’s cursory rejection of her assessment was improper.

In addition, SSA's post hoc rationale for the ALJ decision -- not contained in the decision itself -- was held to be improper. "Although the Commissioner’s brief offers other evidence from the record in support of the ALJ’s rejection, the “grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001) (quoting SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)); Keiderling v. Astrue, No. 07-2237, 2008 WL 2120154, at *3 (E.D. Pa. May 20, 2008) (Buckwalter, S.J.) (“[I]t is well-established that the ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s decision; the Commissioner may not offer a post-hoc rationalization.”) (quotation marks and alteration omitted). The ALJ’s decision did not cite the examples that the Commissioner’s brief cites to this Court, but instead referred only to the “mental health evidence, including the counseling notes made by [Douglass’s] therapist,” which is insufficient to affirm the rejection. Accord, Keiderling v. Astrue, 2008 WL 2120154, at *4. (ED Pa.)

Sec. 1983 - municipal liability - prospective relief

Los Angeles County v. Humphries - November 30, 2010 - US Supreme Court

http://www.supremecourt.gov/opinions/10pdf/09-350.pdf

(Slip Opinion) OCTOBER TERM, 2010

SUPREME COURT OF THE UNITED STATES

LOS ANGELES COUNTY, CALIFORNIA v. HUMPHRIES ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 09–350. Argued October 5, 2010—Decided November 30, 2010

The Humphries (hereinafter respondents) were accused of child abuse in California, but were later exonerated. However, under California law, their names were added to a Child Abuse Central Index (Index),where they would remain available to various state agencies for at least 10 years. The statute has no procedures for allowing individuals to challenge their inclusion in the Index, and neither Californianor Los Angeles County has created such procedures. Respondents filed suit under §1983, seeking damages, an injunction, and a declaration that public officials and petitioner Los Angeles County had deprived them of their constitutional rights by failing to create amechanism through which they could contest inclusion in the Index.The District Court granted the defendants summary judgment, but the Ninth Circuit disagreed, holding that the Fourteenth Amendment required the State to provide those on the list with notice and a hearing, and thus respondents were entitled to declaratory relief. The court also held that respondents were prevailing parties entitled to attorney’s fees, including $60,000 from the county. The county objected, claiming that as a municipal entity, it was liable only if its"policy or custom" caused the deprivation of a plaintiff’s federal right, Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694; but a state policy caused any deprivation here. The Ninth Circuit, inter alia, found that respondents did prevail against the county on their claim for declaratory relief because Monell did not apply to prospective relief claims.

Held: Monell’s "policy or custom" requirement applies in §1983 cases irrespective of whether the relief sought is monetary or prospective. Pp. 4–10. Reversed and remanded.

Syllabus

(a) In Monroe v. Pape, 365 U. S. 167, this Court based its holding that municipal entities were not "person[s]" under §1983 on the provision’s legislative history, particularly Congress’ rejection of the so-called Sherman amendment, which would have made municipalities liable for damages done by private persons " ‘riotously and tumultuously assembled,’ " id., at 188–190, and n. 38. Reexamining this legislative history in Monell, the Court overruled Monroe. It concluded that Congress had rejected the Sherman amendment, not because it would have imposed liability on municipalities, but because it would have imposed such liability solely based on the acts of others. The Court, on the basis of the statutory text and the legislative history,went on to explain what acts are the municipality’s own for purposes of liability. The Court held that "a municipality cannot be held liable" solely for the acts of others, e.g., "solely because it employs a tortfeasor," 436 U. S., at 691, but it may be held liable "when execution of a government’s policy or custom . . . inflicts the injury," id., at 694. Pp. 4–7.

(b) Section 1983, read in light of Monell’s understanding of the legislative history, explains why claims for prospective relief, like claims for money damages, fall within the scope of the "policy or custom" requirement. Nothing in §1983 suggests that the causation requirement should change with the form of relief sought. In fact, the text suggests the opposite when it provides that a person who meets §1983’s elements "shall be liable . . . in an action at law, suit in equity, or other proper proceeding for redress." Thus, as Monell explicitly stated, "local governing bodies . . . can be sued directly under§1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes" a policy or custom. 436 U. S., at 690. To find the "policy or custom" requirement inapplicable in prospective relief cases would also undermine Monell’s logic. For whether an action or omission is a municipality’s "own" has to do with the nature of the action or omission, not with the nature of the relief that is later sought in court. Pp. 7–8.

(c) Respondents’ arguments to the contrary are unconvincing.

Pp. 8–9. Reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which all other Members joined, except KAGAN, J., who took no part in the consideration or decision of the case.

child abuse - expungement - oppty. to rebut presumption; multiple caretakers

J.W., et al. v. Dept. of Public Welfare - Cmwlth. Court - December 1, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/408CD10_12-1-10.pdf


The court upheld the challenge of grandmother, father and father's paramour to DPW indicated reports of abuse to an infant child, because DPW's application of the presumption under 23 Pa. C.S. §6381(d) was "waived because it was not raised as an issue at the hearing, thereby depriving Petitioners of a meaningful opportunity to rebut the presumption at the hearing."


Post-hearing, the ALJ applied the sec. 6381(d) presumption, which states that "Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child." The court cited a similar prior holding in In C.E. v. DPW, 917 A.2d 348 (Pa. Cmwlth. 2007).


The court also held that "[e]ven if the presumption had not been waived, Petitioners correctly argue that it does not apply in situations where a child was in the care of multiple persons during the period when the abuse occurred and it is not possible to determine which person actually abused the child."

UC - vol. quit - retirement package; pro se claimant

Smithley v. UCBR - Cmwlth. Court - Nov. 22, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/308CD10_11-22-10.pdf


voluntary retirement
Under Section 402(b) of the Law, an individual is not eligible for unemployment compensation benefits if her unemployment is due to “voluntarily leaving work without cause of necessitous and compelling nature….” 43 P.S. §802(b). “Necessitous and compelling cause” occurs under circumstances where there is a real and substantial pressure to terminate one’s employment that would compel a reasonable person to do so. See Renda v. UCBR, 837 A.2d 685, 691-92 (Pa. Cmwlth. 2003)(citing McCarthy v. UCBR, 829 A.2d 1266, 1270 (Pa. Cmwlth. 2003)). If an employee voluntarily terminates her employment then she has the burden of proving that the termination was necessitous and compelling. Renda, 837 A.2d at 692 (citing Mansberger v. UCBR, 785 A.2d 126 (Pa. Cmwlth. 2001)).

Our Court has previously considered whether a claimant who voluntarily resigns when faced with a workforce reduction is entitled to unemployment benefits. We stated that

[i]n the context of corporate downsizing, the critical inquiry is whether the fact-finder determined the circumstances surrounding a claimant’s voluntary quit indicated a likelihood that fears about the employee’s employment would materialize, that serious impending threats to her job would be realized, and that her belief her job is imminently threatened is well founded. . . . “[S]peculation pertaining to an employer’s financial condition and future layoffs, however disconcerting, does not establish the requisite necessitous and compelling cause.” . . . [W]here at the time of retirement suitable continuing work is available, the employer states that a layoff is possible . . . and no other factors are found . . . that remove an employee’s beliefs from the realm of speculation, a claim for unemployment benefits fails despite the offer to leave. Renda, 837 A.2d at 692 (footnote and citations omitted).

As the Board points out, in Claimant’s case Employer did not tell Claimant that she would be laid off or terminated if she did not accept the early retirement package. Employer was willing to allow the first five interested employees to accept it. By Claimant’s own admission, continuing employment would have been available to her because of her seniority had she not accepted the package. Any concerns Claimant may have had about being laid off were purely speculative and unsupported by the record. Though Claimant maintains that she would never have voluntarily quit her job of 43 years, her belief that she is entitled to unemployment benefits is based upon a misunderstanding of the law. Under this Court’s jurisprudence, she voluntarily quit when she resigned from her position to accept a completely voluntary early retirement package.

Pro se claimant -- The Board asks us to quash Claimant’s brief for failure to comply with the Pennsylvania Rules of Appellate Procedure. While the Board is correct that Claimant’s brief does not comply with the appellate rules, we decline to quash the brief and dismiss her appeal because she is proceeding pro se and we are able to discern the legal issues raised. Moreover, this Court is generally inclined to construe pro se filings liberally. See Robinson v. Schellenberg, 729 A.2d 122, 124 (Pa. Cmwlth. 1999).

Social Security - remand - opportunity to be heard

Thomas v. Commissioner - Third Circuit - November 18, 2010


http://www.ca3.uscourts.gov/opinarch/084593p.pdf

After being denied benefits, claimant filed an appeal in the district court, which after full briefing issued an order affirming the Commissioner’s decision with regard to whether claimant met a Listing but remanding the case to the Commissioner for further explanation of the Commissioner’s determination that Thomas did not functionally equal the listings.

Claimant appealed the district court order. During the pendency of this appeal, the ALJ issued an amended decision explaining his rationale for finding that claimant did not functionally equal the listings. Notably, the ALJ did not give the parties an opportunity to be heard, via a hearing or through submissions, prior to rendering the amended decision. Thereafter, the District Court filed an amended order reversing the Commissioner’s decision claimant benefits and remanding the case to the Commissioner for further proceedings in accordance with the opinion filed with its earlier order.

Held: the District Court abused its discretion in its remand order when it remanded a single issue to the ALJ for clarification without directing the ALJ to fully develop the record prior to rendering an explanatory decision.


This Court requires an ALJ to set forth the reasons for his decision, see Cotter v. Harris, 642 F. 2d 700, 704-705 (3d Cir. 1981), because conclusory statements are “beyond meaningful judicial review.” Burnett v. Commissioner of Social Security Administration, 220 F. 3d 112, 119 (3d Cir. 2000) Here, the District Court’s remand to the Commissioner runs afoul of the essence of Burnett because it does not direct the ALJ to reopen and fully develop the record before rendering a ruling.

By not giving the Commissioner explicit instructions to fully develop the record, the District Court essentially gave the ALJ license to issue an advisory opinion, which is exactly what occurred here. To be sure, the purpose of Burnett is not to require a formulaic process that must be adhered to on remand, but rather to ensure that the parties have an opportunity to be heard on the remanded issue and prevent post hoc rationalization by administrative law judges.

arbitration - NAF no longer exists - motion to compel denied

ROBERT G. STEWART v. GGNSC-CANONSBURG, L.P., Superior Court of Pennsylvania - November 4, 2010

http://www.pacourts.us/OpPosting/Superior/out/a31040_10.pdf


The Pa. Superior Court (an intermediate appellate court) affirmed the trial court decision denying the motion to compel arbitration. The trial court concluded that the Agreement was unenforceable because an essential term of the Agreement failed; that is, the arbitration forum selection clause designating the NAF and its procedures were integral to the Agreement and could not be enforced because the NAF was no longer available to act as arbitrators.


The opinion contains a review of cases on both sides of the issue of whether the naming of a particular arbitrator is an essential part of the agreement.


The court also held that "the forum selection clause was not an 'ancillary logistical concern, but rather an essential part of the parties’ agreement,' thereby justifying the Court’s decision to void the entire arbitration agreement

unjust enrichment - not applic. where there is express contract

Wayne Moving and Storage v. School District of Philadelphia - October 28, 2010 - 3d Circuit Court of Appeals

http://www.ca3.uscourts.gov/opinarch/093890p.pdf

In Wilson Area School District v. Skepton, the Supreme Court of Pennsylvania held that parties to a contract "are not entitled to the remedies available under a judicially-imposed quasi[-]contract [i.e., the parties are not entitled to restitution based upon the doctrine of unjust enrichment] because the terms of their agreement (express and implied) define their respective rights, duties, and expectations." 895 A.2d 1250, 1254 (Pa. 2006) (modifications in original) (quoting Curley v. Allstate Ins. Co., 289 F. Supp. 2d 614, 620 (E.D. Pa. 2003)); see also In re Penn Cent. Transp. Co., 831 F.2d 1221, 1230 (3d Cir. 1987) (holding that a party cannot assert a claim of unjust enrichment "if there is an express contract on the same subject").

equitable estoppel - application against the state

Wayne Moving and Storage v. School District of Philadelphia - October 28, 2010 - 3d Circuit Court of Appeals

http://www.ca3.uscourts.gov/opinarch/093890p.pdf


Under Pennsylvania law, equitable estoppel consists of three elements: "1) misleading words, conduct, or silence by the party against whom the estoppel is asserted; 2) unambiguous proof of reasonable reliance upon the misrepresentation by the party asserting estoppel; and 3) the lack of a duty to inquire on the party asserting the estoppel." Chester Extended Care Ctr. v. Pennsylvania Dep’t of Pub. Welfare, 586 A.2d 379, 382 (Pa. 1991).


Equitable estoppel can be applied against the Commonwealth of Pennsylvania or its subdivisions. Wayne Moving, 2008 WL 65611, at *8; see, e.g., Chester Extended Care Ctr., 586 A.2d at 382 ("The doctrine of estoppel is an equitable remedy that may be asserted against the government in this jurisdiction.").


However, the Commonwealth or its subdivisions and instrumentalities cannot be estopped „by the acts of its agents and employees if those acts are outside the agent‟s powers, in violation of positive law, or acts which require legislative or executive action.‟" Cent. Storage & Transfer Co. v. Kaplan, 410 A.2d 292, 294 (Pa. 1980) (quoting Kellams v. Pub. Sch. Emp. Ret. Bd., 403 A.2d 1315, 1318 (Pa. 1979)).


The Supreme Court of Pennsylvania resolved the tension between these principles in holding that "[a]lthough it is the general rule that estoppel against the government will not lie where the acts of its agents are in violation of positive law, . . . this rule cannot be slavishly applied where doing so would result in a fundamental injustice." Chester Extended Care Ctr., 586 A.2d at 383 (citation omitted).

UC - record evidence - violation of work rule

N. Lee Ligo and Associates v. UCBR - unpublished - October 28, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/96CD10_10-28-10.pdf


Decision must be based on evidence produced at the hearing - Pursuant to 34 Pa. Code § 101.106, the Board’s scope of review of an appeal from the decision of a referee is that it “may review both the facts and the law pertinent to the issues involved on the basis of the evidence previously submitted . . . .” The Board is not permitted to consider post-hearing factual communications in its determination and must consider only the evidence previously submitted at the hearing. Croft v. UCBR, 662 A.2d 24 (Pa. Cmwlth. 1995); Tener v. UCBR, 568 A.2d 733 (Pa. Cmwlth. 1990).

Violation of work rule - employer b/p - claimant conduct must be intentional and deliberate - When the misconduct involves a work rule violation, the employer bears the burden of proving the existence of the work rule and its violation. Walsh v. UCBR, 943 A.2d 363 (Pa. Cmwlth. 2008). Moreover, in order for Employer to demonstrate willful misconduct, it must present evidence that Claimant’s conduct was intentional and deliberate. See Grieb v. UCBR, 573 Pa. 594, 827 A.2d 422 (2003). A determination of whether an action constitutes willful misconduct requires a consideration of all of the circumstances, “including the reasons for the employee’s noncompliance with the employer’s directive.” Rebel v. UCBR, 555 Pa. 114, 117, 723 A.2d 156, 158 (1998).

UC - education employees - reasonable assurance - subpoena -

Juniata Childcare and Devel. Services, Inc. v. UCBR - Cmwlth. Court - July 29, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2358CD09_10-22-10.pdf


The court remanded this case for an additional hearing, at which the employer would be allowed to present evidence through witnesses whom the referee improperly refused to subpoena.


The employer alleged that the claimant were educational (Head Start) employees who had reasonable assurance of continuing work in the next educational year and were thus not eligible under 43 P.S. §802.1. Before the hearings began, Employer requested that the Referee issue a subpoena for certain documents which it claimed would establish that Claimants had a reasonable assurance of continuing their employment once the summer ended and school was back in session. The referee refused to issue the subpoena, claiming that the ER would not be able to lay a proper foundation.

A referee has discretion to refuse to issue a subpoena. Alston v. UCBR, 967 A.2d 432 (Pa. Cmwlth. 2009). However, this discretion is not absolute. A referee may not refuse to issue a subpoena, then rule against the party that requested the subpoena because it did not offer into evidence the very information that the party could only have obtained through the subpoena that the referee declined to issue. Hamilton v. UCBR, 532 A.2d 535, 537(Pa. Cmwlth. 1987).

involuntary termination - incarcerated parent

Adoption of S.P. - Superior Court - October 21, 2010 (2-1 decision, with long dissent)


http://www.pacourts.us/OpPosting/Superior/out/S30010_10.pdf

Father appeals from the trial court decree which granted the petition of county CYS petition for involuntary termination of his parental rights to a child who was born in May, 2005. Father is incarcerated and has been since prior to child's birth. The record is unclear as to how much prison time, if any, Father has yet to face, although he was eligible for parole in August 2009 and had a clean prison record at the time of the termination hearing in March 2009.

The issue presented is whether reasons other than the fact of Father’s incarceration provide the basis for the termination of Father’s rights pursuant to 23 Pa.C.S.A. § 2511(a)(2). After a careful review of the record, including uncontroverted evidence of Father’s efforts to establish and maintain a relationship with the child since her birth and his unassisted efforts to prepare himself to assume parental responsibilities and to enter the work force, we reverse.

The agency failed to prove its case by the standard of clear and convincing evidence, which means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. In re J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002).

The Pennsylvania Supreme Court held more than thirty years ago that incarceration alone is not a sufficient basis for termination of parental rights. In re McCray, 460 Pa. 210, 216, 331 A.2d 652, 655 (1975). Nonetheless, application of the McCray rule, particularly in cases involving § 2511(a)(2), has proven difficult, inasmuch as a parent’s incarceration is obviously an “incapacity” that precludes day-to-day interactions and activities normally attendant to a parent-child relationship. The difficulty of this reconciliation is evident from the fact-intensive analysis set forth in our case law dealing with terminating the parental rights of an incarcerated parent. Bartasavich v. Mitchell, 471 A.2d 833, 834 (Pa. Super. 1983) and In re I.G., 939 A.2d 950, 953 (Pa. Super. 2007).

admin. Law - due process - notice

Erie Sports Bar v. Bureau of Liquor Control Enforcement - Cmwlth. Court - October 221, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1562CD08_10-21-10.pdf


The court upheld an administrative decision concerning an alleged violation of liquor laws by selling liquor to a minor. The BLCE did not give the bar immediate, on-site notice of the alleged violation, as required by a state regulation. In affirming the admin. decision rejecting the BLCE's enforcement because of this failure, the court said

To the extent that particular forms of notice have been mandated by the General Assembly via statute, or via regulation properly promulgated thereunder, due process protections are implicated. Given that the notice provision required by [the regulation] is directed solely at the premises at which the Bureau has undertaken an action (and found a violation) . . .due process demands that such an action (when a violation has been found) include the mandated immediate notice to those premises. Where specifically provided for and expressly mandated without exception, due process protections are not optional.

Where the General Assembly, or an administrative body under its own regulations promulgated pursuant to statute, expressly provides for mandated notice, due process protections attach to that notice.

UC - voluntary quit - voluntary layoff option - duty of referee to unrepresented parties

Beddis v. UCBR - October 18, 2010 - Cmwlth. Court - precedential


http://www.pacourts.us/OpPosting/Cwealth/out/2233CD09_10-18-10.pdf


The voluntary layoff (VLO) provision of sec. 402(b) applies only to temporary separations, with the possibility of a recall, and is not accompanied by "some form of consideration from the employer" such as a severance or early retirement package.


Recognizing that its intepretation of the VLO provision goes beyond the plain words of the statute, the court noted that it has interpreted the provision in this manner "since its include in the [UC] Law three decades ago," and that this intepretation was affirmed by a "sharply divided" Supreme Court in, Sievers v. UCBR, 555 A.23 260 (Pa. Cmwlth. 1987), affd., 551 A2d 1057 (Pa. 1989).


The Beddis decision also contains a discussion of the duty of a referee to assist unrerpesented parties, both claimant and employer.

tax sale - costs - right to itemization of costs - 72 P.S. sec. 5568q

Appeal of Holler - Cmwlth. Court - September 20, 2010

http://www.pacourts.us/OpPosting/Cwealth/out/2318CD08_9-20-10.pdf


A delinquent taxpayer has a right to a statement of taxes owing, incluidng penalty, interest and "any costs or other charges in detail against such property. . . ." 72 P.S. sec. 5568q. (emphasis added).

Where the taxing authority failed to answer the taxpayer's numerous demands for a detailed accounting of costs, providing only a lump sum figure of aggregate, undifferentiated costs, the court held that "Appellant should be provided a hearing limited to the itemization of the Tax Bureau’s costs and whether such costs would be permitted under the Law. . . .We agree with Appellant that she is entitled to an itemization of the costs she owed and not merely a miscellaneous grouping of costs. . . .Accordingly, we must. . . remand for a hearing to order the Tax Bureau to itemize costs that were charged, whether such costs would be permitted under the Law and in the event any costs paid by Appellant are not identified by the Tax Bureau as properly chargeable, to order a refund of same to Appellant.

UC - voluntary quit - leaving work in anger

Procyson v. UCBR - September 22, 2010 - Commonwealth Court (2-1)


http://www.pacourts.us/OpPosting/Cwealth/out/1771CD09_9-22-10.pdf


The UCBR erred in concluding that Claimant’s sudden departure from work after an upsetting conversation with her supervisor constituted a voluntary quit where

- claimant, a part-time empoyee, walked out before completing her shift on Friday
- claimant never said that she was quitting
- claimant reported to work for her next scheduled shift, the next Tuesday, when ER told her that she was fired, should leave and never come back.

The law requires evidence of a conscious intention to abandon a job, but Claimant never expressed such a conscious intention. The fact that a claimant leaves work before the end of a shift does not, in itself, establish an intent to quit. Iaconelli v. UCBR, 892 A.2d 894, 896 (Pa. Cmwlth. 2006).

Whether the claimant’s separation from employment is the result of a voluntary resignation is a question of law subject to our review and must be determined from the facts of the individual case. Key v. UCBR, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). A voluntary quit requires a finding that the claimant had a conscious intention to leave employment. Fekos Enterprises v. UCBR, 776 A.2d 1018, 1021 (Pa. Cmwlth. 2001). In determining the claimant’s intent, this Court must consider “the totality of the circumstances surrounding the incident.” Id.

This Court has specifically addressed the question of whether a claimant who abruptly leaves work without permission has manifested an intention to quit. We have explained that an employee who is absent from work without authorization and without taking steps to preserve the relationship by telling the employer if and when he may return may be held to have voluntarily quit. UCBR v. Metzer, 28 Pa. Commonwealth Ct. 571, 368 A.2d 1384 (1977). However, the majority of these disputes have resulted from either unreasonable or inordinately long absence periods. Ryan v. UCBR, 448 A.2d 713, 714-715 (Pa. Cmwlth. 1982) (emphasis in original).

An employee who abruptly leaves work has a reasonable period of time in which [the] employee has the opportunity to manifest an intent to quit and the employer has the opportunity to contact the employee or vice-versa. Iaconelli, 892 A.2d at 896 (citing Ryan, 448 A.2d 713). In other words, leaving the workplace in high dudgeon before the end of a shift does not, in itself, manifest an intention to quit.

The totality of the circumstances does not support the Board’s conclusion that Claimant voluntarily terminated her employment. Claimant was hoping to return to work full-time when the altercation developed at work. She never said “I quit.” Although she abruptly left work without completing her shift, Ryan established that such conduct does not, in itself, manifest a conscious intention to quit. Claimant was a part-time employee who worked only ten to thirteen hours a week. She left work on Friday and returned on Tuesday, at her next shift. This is not an “inordinately long absence.” Ryan, 448 A.2d at 715. It is not reasonable to infer that by not calling Employer on her days off, Claimant expressed an intention to quit. Indeed, Employer had the “opportunity to contact the employee,” Iaconelli, 892 A.2d at 896, but chose, instead, to drop Claimant from the Tuesday schedule without calling her. By reporting to work at her next shift, Claimant acted to preserve the employment relationship.

equity - unclean hands

Mazzitti and Sullivan Counseling Services v. DPW - Cmwlth. Court - October 7, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1593CD09_10-7-10.pdf

Claim of payment for a counseling services denied because petitioner had unclean hands, involving fraudlent claims for services.

It is well settled that “[a] court may deprive a party of equitable relief where, to the detriment of the other party, the party applying for such relief is guilty of bad conduct relating to the matter at issue. The doctrine of unclean hands[7] requires that one seeking equity act fairly and without fraud or deceit as to the controversy in issue….” Terraciano v. Department of Transportation, 562 Pa. 60, 69, 753 A.2d 233, 237-238 (2000) (citations omitted).

As the Pennsylvania Supreme Court has noted:

[T]he doctrine of unclean hands is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant. That doctrine is rooted in the historical concept of court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith…. Thus while ‘equity does not demand that its suitors shall have led blameless lives’ … as to other matters, it does require that they shall have acted fairly and without fraud or deceit as to the controversy in issue….Shapiro v. Shapiro, 415 Pa. 503, 506-507, 204 A.2d 266, 268 (1964) quoting Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814-15 [(1945)]. Jacobs v. Halloran, 551 Pa. 350, 359-360, 710 A.2d 1098, 1103 (1998).

Fair Credit Reporting Act - denial of credit because of incorrect listing as "deceased"

Sheldon v. Experian Information Solutions - ED Pa. - September 28, 2010

http://www.paed.uscourts.gov/documents/opinions/10D1006P.pdf

This is a putative class action arising under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. Jurisdiction is federal question. 28 U.S.C. § 1331.

Plaintiffs purport to represent a class of individuals who have been incorrectly classified as "deceased" on credit reports issued by defendant Experian Information Solutions, Inc., resulting in the denial of credit.

The complaint alleges that the inclusion of this information violates 15 U.S.C. § 1681e(b) because Experian did not implement reasonable procedures to assure the reports’ accuracy. Additionally, it is alleged that the sale of the reports with the incorrect "deceased" notation violates 15 U.S.C. § 1681e(a) because Experian’s purpose for selling credit reports on deceased individuals does not come within a statutorily permitted purpose.

These violations are alleged to have been both negligent and wilful [sic]. Complaint, Count I. Defendant moves for summary judgment. The motion will be denied as to the allegedly negligent violations and granted as to those alleged to be wilful [sic].

wages - Wage Payment and Collection Law - attorney fees

Ambrose v. Citizens National Bank - Superior Court - September 21, 2010


http://www.pacourts.us/OpPosting/Superior/out/A09027_10.pdf


Former employees were entitled to attorney fees where they prevailed on fee claim under Wage Payment and Collection Law, 43 P.S. § 260.1 et seq., including fees for defending against the employer's counterclaims.


The employer's defenses to the WPCL claims and its counterclaim against the former employees were "inextricalby intertwined."


"Moreover, in light of the circumstances of this case, we find the trial court’s award of counsel fees served the express purposes of the WCPL by encouraging Appellees to pursue their wage claims and rebuff CNB’s attempts to intimidate them into dropping the complaints. . . .[T]he trial court’s award of attorneys’ fees prevented Appellees from having to exhaust their entire compensatory award in order to satisfy their legal bills. As the award promotes the purpose of the WPCL’s fee-shifting provision under the circumstances of this case, we reject CNB’s contention that the trial court erred in assessing all of the attorneys’ fees they incurred in this litigation."


The court also held that the trial court correctly decided that the employer's litigation conduct was in bad faith, since the employer was aware at an early stage that its counterclaims were "baseless" and "specious."

federal courts - pre-trial orders - violation - sanctions - FRCivP 16

Rorrer v. Cleveland Steel Container Corp. - ED Pa. - September 20, 2010


http://www.paed.uscourts.gov/documents/opinions/10D0986P.pdf

Federal Rule of Civil Procedure 16(f), which authorizes sanctions for violations of pretrial orders issued pursuant to Rule 16, provides: (1) In General. On a motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(iii), if a party or its attorney: . . .(c) fails to obey a scheduling or other pretrial order. (2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses - - including attorney’s fees - - incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 16(f)(1)(c), 16(f)(2).

The United States Court of Appeals for the Third Circuit has held that “monetary sanctions for noncompliance with Rule 16 pretrial orders are required and appropriate absent a showing that the violationwas ‘substantially justified’ or the award of expenses is ‘unjust’ under the circumstances of the case.” Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212, 241 (3d Cir. 2007). Substantial justification exists where there is a “genuine dispute concerning compliance.” Id. (quoting Fitz, Inc. v. RalphWilson Plastics Co., 174 F.R.D. 587, 591 (D.N.J. 1997)). To determine whether sanctions are “unjust,” a court considers “the degree of the sanction in light of the severity of the transgression which brought about the failure to comply.” Tracinda Corp., 502 F.3d at 241.

__._,_.___

UC - willful misconduct - drug testing - memo

In Turner v. UCBR (May 16, 2006) , the Commonwealth Court held (4-3) that the employer could establish written drug test results as business records under 42 Pa. C.S. 6108(b), by the "testimony of the supervisor of those persons who are actually performing the drug testing of a urine specimen. . . ". The court said that the testimony of the employer vice-president and director of toxicology of the lab that did the drug test "provided very detailed and sufficient information relating to the preparation of claimant's drug test result and justified not only a presumption about the trustworthiness of this record but its admission."

This holding is questionable in light of the Superior Court decision in Commonwealth v. Barton-Martin (September 8, 2010), a criminal case in which the court struck down a DUI conviction based on lab reports, where the lab analyst who did the testing and wrote the report did not appear at trial and was not shown to be unavailable, citing Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), which was authored by Justice Scalia, with Thomas concurring.

Like Barton-Martin, Melendez-Diaz is a criminal case. Both rely on the confrontation clause of the 6th Amendment. A similar provision in the state constitution, Article I, sec. 9, says that in "all criminal prosecutions the accused hath a right. . . to be confronted with the witnesses against him. . . ."

However, there may be a correlative right to confront witnesses in civil cases as a matter of state due process, the state administrative agency law, 2 Pa. C.S., and other sources. Well-established rules about the use of hearsay in administrative hearings support this position. Hearsay evidence, properly objected to, is not competent evi­dence to support a finding. Hearsay evidence admitted without objection will be given its natural probative effect and may support a finding if it is corroborated by any competent evidence in the record, but a finding of fact based solely on hearsay will not stand. Walker v. UCBR, 367 A.2d 377, 370 (Pa. Cmwlth 1976). This long-standing rule is "not a mere technical rule of evidence, but a funda­men­tal rule of law which ought to be followed by agencies when facts crucial to the issue are sought to be placed on the record and an objection is made thereto.” A.Y. v. DPW, 641 A.2d 1148, 1151 (Pa. 1994).

In addition to these basic principles, which Turner undercuts , there is extensive language in Melendez-Diaz (which in turn relied on Crawford v. Washington, 541 U.S. 36 (2004) that can be used to argue that Turner was wrongly decided. In Melendez-Diaz, the court struck down a conviction based in part on written "certificates of analysis" that were used to establish that a substance taken from the defendant was cocaine.

The most useful language in Melendez-Diaz for UC cases involving drug cases involves statements that reject lab reports as "neutral scientific testing" or as business records.

Excerpts from the case about testing --

- Forensic evidence is not uniquely immune from the risk of manipulation.
- Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.
- “The forensic science system, encompassing both research and practice, has serious problems
- There is "little reason to believe that confrontation will be useless in testing analysts' honesty, proficiency, and methodology-the features that are commonly the focus in the cross-examination of experts."

Excerpt about drug tests as business records
- The federal evidence rule about records kept in the regular course of business does not apply "if the regularly conducted business activity is the production of evidence for use at trial. " It doesn't cover records "calculated for use essentially in the court, not in the business.

UC - willful misconduct - disparate treatment - burden of proof/persuasion

Geisinger Health Plan v. UCBR - Cmwlth. Court - en banc 4-3 decision - February 5, 2009 - 964 A.2d 970 Pa. Cmwlth. 2009)


http://www.courts.state.pa.us/OpPosting/Cwealth/out/2029CD07_2-5-09.pdf


Claimant was fired for sending pornographic emails at work. He claimed improper disparate treatment, because others who had done the same were not terminated.


The Court (4-3) held that "[d]isparate treatment is an affirmative defense by which a claimant who has engaged in willful misconduct may still receive benefits if he can make an initial showing that: (1) the employer discharged claimant, but did not discharge other employees who engaged in similar conduct; (2 ) the claimant was similarly situated to the other employees who were not discharged; and (3) the employer discharged the claimant based upon an improper criterion. See Department of Transportation v. UCBR, 755 A.2d 744, 748 (Pa. Cmwlth. 2000) (“[T]he essence of disparate treatment is not only whether unlawful discrimination has occurred but also whether similarly situated people are treated differently, based upon improper criteria.”). Once the claimant has made this showing, the burden then shifts to the employer to show that it had a proper purpose for discharging the claimant.


The court noted, several times, that there are "opinions of this Court that have been less than clear in applying the burden of proving disparate treatment," contrasting cases like Remcon Plastics, Inc. v. UCBR, 651 A.2d 671 (Pa. Cmwlth. 1994), with others such as Walsh v. UCBR, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). The court noted that "it is important to remember that the disparate treatment defense to a finding of willful misconduct is not found in the Law, but has its genesis in the Pennsylvania Supreme Court’s decision in Woodson v. UCBR, 461 Pa. 439, 336 A.2d 867 (1975)."


There were strong dissents from Judges Pelligrini and Friedman (joined by Smith-Ribner).


So far as I know, there was no appeal in the case.

UC - hearing - remand -

Hill v. UCBR - Cmwlth. Court - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/2245CD09_9-14-10.pdf

Claimant’s excuse that she did not attend because she got the hearing date “mixed up,” was not a valid reason for a remand hearing even if the Board believed her. The Board has discretion under its regulation, 34 Pa. Code §101.24(a), to decide whether a remand is necessary. The denial of an application for remand will be reversed only for a clear abuse of discretion. Flores v. UCBR, 686 A.2d 66 (Pa. Cmwlth. 1996).

This Court has held that a claimant’s own negligence is not “proper cause” to justify the failure to appear at a referee’s hearing. Savage v. UCBR, 491 A.2d 947 (Pa. Cmwlth. 1985). Clearly, it was Claimant’s own negligence that prevented her from attending the hearing.