UC - after-discovered evidence

Mansour v. UCBR - Cmwlth Court - February 25, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1221CD09_2-25-10.pdf


Employer did not become aware of Claimant’s fabrication of the facts concerning a fire at work until after Employer terminated Claimant. The Board, however, relied on this fabrication when it determined that Claimant committed willful misconduct.

In PrimePay, LLC v. UCBR, 962 A.2d 684 (Pa. Cmwlth. 2008), this Court held that an employer satisfies its burden of proving willful misconduct by evidence discovered after the termination of the employee if it establishes that the willful misconduct was concealed and it would have terminated the employee had it been aware of the concealed misconduct.

Astrue v. Ratliff: Who Owns Court Awarded Attorney's Fees?

The United States Supreme Court heard oral argument in the case of Astrue v. Ratliff on February 22, 2010.

In this case, the Social Security Administration argued that an award of fees and other expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), is payable to the prevailing party in Social Security cases and that an award of such attorneys’ fees is subject to an administrative offset to satisfy the prevailing party’s debt, if any, to the United States.

The SSA Claimant countered that because the award belongs to the party’s attorney and not to the party itself, the award of attorneys’ fees cannot be subject to an offset for a debt that is not his or her own.

The result in this case will have a serious impact on the ability of low-income claimants to retain counsel in cases before the Social Security Administration that are subject to the Equal Access to Justice Act.

A full summary of the case and the arguments of the respective parties has been compiled by the Legal Information Institute at the Cornell Law School. That summary can be viewed at THIS LINK.

admin. law - appeal - preservation of issues - claim that hearing was unfair

Atwell v. UCBR - Cmwlth. Court - February 17, 2009 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1030CD09_2-17-10.pdf


The fairness of a hearing is a matter of a constitutional dimension that can be raised for the first time in an appeal to this Court. See Felici v. UCBR, 444 A.2d 843 (Pa. Cmwlth. 1982) (holding that claimant’s challenge to the fairness of his hearing may be raised by the claimant for the first time in his brief to this Court).


Claimant was thus allowed to present his argument that the Referee did not ask him if he waived his right to counsel at the hearing and did not provide him with assistance in cross-examining witnesses, 34 Pa. Code sec. 101.21(a), even though he did not raise the issue before the UCBR.

admin. law - hearsay - due process

Speight v. Dept. of Corrections - Cmwlth. Court - February 16, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/663CD09_2-16-10.pdf


This case involves proof of the DOC's costs for medical treatment, which it sought to be placed on Speight, the prisoner-petitioner.


Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Bonegre v. Workers’ Compensation Appeal Board (Bertolini’s), 863 A.2d 68 (Pa. Cmwlth. 2004).


In an administrative hearing, hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding but only if competent evidence of record corroborates it. Walker v. UCBR, 367 A.2d 366 (Pa. Cmwlth. 1976).3

While [the petitioner] did not object to the admission of the medical bills, the Department, despite citing to Walker, has failed to cite anywhere in the record where those bills were corroborated by any competent evidence. In this case, all that [the DOC witness] did was go over each invoice and state the amount on the invoice. In the case of the invoice from the hospital where there were itemized amounts, she indicated what each amount was for. The other two invoices merely had a total due. She could not identify who created the document and who redacted the information pertaining to the phone numbers and addresses.

Because this Court has previously held that corroboration of the unobjected-to document is required, see Lee v. Pennsylvania Board of Probation and Parole, 885 A.2d 634 (Pa. Cmwlth. 2005), and there was no corroboration in this case, there was a violation of the hearsay rule.

3 The Walker Rule is not truly a rule of evidence but based on the principle that fundamental due process requires that no adjudication be based solely upon hearsay evidence. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172, 175 (1990) (quoting with approval Justice Flaherty’s concurring opinion in UCBR v. Ceja, 493 Pa. 588, 427 A.2d 631, 643 (1981)).

admin. law - petition for review - record - newly-discovered evidence

Grever v. UCBR - Cmwlth. Coourt - February 16, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1008CD09_2-16-10.pdf


The Commonwealth Court refused the claimant's request to take judicial notice of a pleading in a related case (before the Human Relations Commn.) where


- the pleading came into being after the the UC referee decision but before the UCBR decision
- the claimant did not ask the UCBR for permission to submit newly-discovered evidence
- the claimant appealed to Cmwlth. Court and attached the pleading to the Petition for Review
- claimant did not ask the court to take judicial notice of the document


The Commonwealth Court, when reviewing matters in its appellate capacity, is bound by the facts certified in the record on appeal. Cambria County Mental Health/Mental Retardation v. State Civil Service Commission, 756 A.2d 103, 106 (Pa. Cmwlth. 2000).

Although a court “may take judicial notice of filings or developments in related proceedings which take place after the judgment appealed from.” See Werner v. Werner, 267 F.3d 288, 295 (3d Cir. 2001), issues not raised at the earliest possible time during a proceeding are waived. Dehus v. UCBR, 545 A.2d 434 (Pa. Cmwlth. 1988).

The Claimant here, although able to do so, failed to present the documents prior to the Board issuing its decision. Allowing Claimant to present the documents now would usurp the Board’s role as the fact-finder and arbiter of credibility. Thus, judicial notice will not be taken of records which were available to Claimant prior to but presented after the Board’s decision was issued.

LIHEAP - sec. 8 - rent included heat - rent as fixed % of income

Sweetman v. DPW - December 15, 2009 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/786CD09_12-15-09.pdf


Applicant found to be not eligible for LIHEAP under 55 Pa. Code § 601.31(2)(i)(B), which provides that renters whose heating cost is included as an undesignated portion of rent and whose rent is based on a fixed income percentage are ineligible for LIHEAP benefits.

If the applicant directly paid a vendor for the main source of his heat or paid indirectly for heat, but not as a fixed percentage of his income, he would be eligible for LIHEAP cash benefits. In the present matter, Petitioner does not pay directly for his heat, but pays for his heat as part of his rent, which is a fixed percentage of his income.


Applicant testified and argued that his landlord did not provide sufficient heat and that he had to use electric space heaters to supplement the primary heat, which was natural gas. Although the applicant argued that his space heaters are the “main” source of heat, sec. 601.3 of the regulations provides that the “main” fuel type is the source of energy for the central heating system of the residence, or if the residence is not centrally heated, the source of energy used most by the household. 55 Pa. Code § 601.3.

DPW found that the main fuel type is natural gas and that applicant did not establish that electricity, as the source used to supply space heaters, is the “main” fuel type for applicant's home. "Therefore, we cannot say that DPW/BHA or the ALJ erred in concluding that Petitioner was ineligible for LIHEAP benefits."

procedure - standing - mootness

Finn v. Rendell - Commonwealth Court - February 2, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/505MD09_2-9-10.pdf

County sued the governor, general assembly, and state treasurer for reimbursement for percentage of country DA's salary, which state was to pay under the county code, 16 P.S. § 1401(p).

standing - The court held that the county had standing to bring the action. "One seeking judicial resolution of a dispute must satisfy a threshold requirement of standing to bring the action by demonstrating a substantial, direct and immediate interest in the outcome of the litigation. Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 888 A.2d 655 (2005). A substantial interest is an interest exceeding the interest of all citizens in procuring obedience to the law; an interest is direct if there is a causal connection between the asserted violation and the harm complained of; an interest is immediate if the causal connection is neither remote nor speculative. City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A.2d 566 (2003)."

mootness - The court held that the case was not moot. "Under the mootness doctrine, an actual case or controversy must exist at all stages of review, not just when the complaint is filed. Pub. Defender's Office of Venango County v. Venango County Court of Common Pleas, 586 Pa. 317, 893 A.2d 1275 (2006); Harris v. Rendell, 982 A.2d 1030 (Pa. Cmwlth. 2009). 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)."

consumer - payday loans - arbitration agreement

Clerk, et al. v. Ace Cash Express, Inc. - ED Pa. - January 29, 2010

http://www.paed.uscourts.gov/documents/opinions/10D0111P.pdf

The court grant the motion to compel arbutration of Defendant ACE Cash Express, Inc. (“ACE”), in an action based on payday loans, a form of consumer lending involving short-term loans secured by excessively high interest rates

Plaintiffs alleged violations of the Pennsylvania Consumer Discount Company Act, 7 P.S. § 6201 et seq., the Pennsylvania Loan Interest and Protection Law, 41 P.S. § 101 et seq., and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq.

The payday loan agreement contained an arbitration clause, which stated that the agreement covered “all federal or state law claims, disputes or controversies, arising from or relating directly or indirectly to the Loan Agreement,” as well as “all claims based upon a violation of any state or federal constitution, statute or regulation," and that it was to be interpreted under Delaware law.

The court held that, under the Third Circuit’s holding in Kaneff v. Delaware Title Loans, Inc., 587 F.3d 616, 620 (3d Cir. 2009), applying Delaware law to the Arbitration Agreement would be contrary to a fundamental policy of Pennsylvania, and that Pennsylvania has a materially greater interest than Delaware, the state chosen in the Arbitration Agreement, and that it would thusl apply Pennsylvania law when determining whether the Arbitration Agreement is unconscionable.

However, the court found that the agreement was not procedurally unconscionable under Pennsylvnia law and was thus enforceable.

custody - jurisdiction - UCCJEA - inconvenient forum

A.D. v. M.A.B - Superior Court - February 1, 2010

http://www.pacourts.us/OpPosting/Superior/out/S75045_09.pdf

M.A.B. (“Father”) appeals from the order entered in the Philadelphia County Court of Common Pleas, which declined jurisdiction in this child custody matter in favor of the courts of the State of Michigan upon reconsideration of the trial court’s order of February 23, 2009, as requested by A.D. (“Mother”). We hold that the trial court considered and properly weighed all the relevant factors for inconvenient forums pursuant to 23 Pa.C.S. § 5427. Accordingly, we affirm.

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social security - atty. fees - sentence four remand - filing deadline

Walker v. Astrue - 3d Cir. - February 2, 2010

http://www.ca3.uscourts.gov/opinarch/081446p.pdf

This case presents a question of first impression in the Third Circuit and one that has divided our sister courts of appeals: what filing deadline under the Federal Rules of Civil Procedure governs a petition for attorney fees under Section 406(b) of the Social Security Act when a case is remanded under sentence four of Section 405(g) for a determination of benefits?

The Fifth and Eleventh Circuits have held that Rule 54(d)(2)’s fourteen-day filing deadline applies, see Bergen v. Barnhart, 454 F.3d 1273, 1277 (11th Cir. 2006); Pierce v. Barnhart, 440 F.3d 657, 663 (5th Cir. 2006), while the Tenth Circuit uses the more amorphous “reasonable time” standard under Rule 60(b), see McGraw v. Barnhart, 450 F.3d 493, 505 (10th Cir. 2006).

The District Court sua sponte dismissed Counsel’s petitions, holding that, under either rule, Counsel’s request was untimely.

We now join the Fifth and Eleventh Circuits in holding that Rule 54(d)(2) is the appropriate standard, subject to tolling until counsel’s notification of an award of benefits on remand. Accordingly, we will reverse the District Court’s dismissal and remand to give Counsel an opportunity to present evidence of his notification of the award.

I.

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stalking; PFA contempt

Commonwealth v. Abed - Superior Court - January 29, 2010

http://www.pacourts.us/OpPosting/Superior/out/A32014_09.pdf

Defendant's conviction for stalking under 18 Pa.C.S.A. § 2709.1 and contempt under a PFA order upheld on appeal.

Defendant's many "lewd and obscene texts, calls, flyers, and letters that accused Complainant of having an infectious disease are clearly encompassed in the statutory language [defining stalking]. Appellant’s assertion that proof of physical contact is necessary to convict him of stalking directly conflicts with Commonwealth v. Miller, 689 A.2d 238, 240 (Pa. Super. 1997), in which this Court rejected as “ludicrous” a similar argument that the defendant could not be convicted of stalking when he did not cause physical harm or attempt harm to his victim.

This Court found the “intent to place one in fear of bodily injury is but one mens rea that will sustain a conviction under § 2709(a) and (b)… as a conviction may be upheld upon a showing that the accused intended to harass, annoy, alarm or cause substantial emotional distress.”