real property - specific performance - agreement to agree - essential terms

Trowbridge v. McCaigue - Superior Court - March 26, 2010

http://www.pacourts.us/OpPosting/Superior/out/a30010_09.pdf

In the instant case, the trial court found that the signed Purchase Offer (hereinafter “Agreement”), was an “agreement to agree” and that “no express contract ever existed between” Appellant and Appellees. The court’s decision was based on that part of the Agreement that states that if the Appellees accept this offer, then the parties would “enter into a sales agreement.”

“The Statute of Frauds instructs that a purported transfer of an ownership interest in real property is not enforceable unless evidenced in writing and signed by the party(ies) granting the interest.” Long v. Brown, 582 A.2d 359, 361 (Pa. Super. 1990) (citing 33 P.S. § 1). “A writing required by the Statute of Frauds need only include an adequate description of the property, a recital of the consideration and the signature of the party to be charged.” Hessenthaler v. Farzin, 564 A.2d 990, 994 (Pa. Super. 1989).

The essential terms required to satisfy the Statute of Frauds are present in the Agreement signed by Appellant and Appellees. While the trial court acknowledges this, it concluded that the Agreement was nonetheless not a contract because it indicated “an intention of the parties to come to an agreement at a later time.” In so holding the court relied on Highland Sewer and Water Authority v. Forest Hills Mun. Authority, 797 A.2d 385 (Pa. Cmwlth. 2002), wherein the court stated, “An agreement to agree is incapable of enforcement, especially when it is stipulated that the proposed compact shall be mutually agreeable.” Id. at 390 (quotation marks omitted). However, in Highland, the court specifically held that the trial court did not err in concluding that no express contract arose from the parties’ conduct because they had “indicated an intention to agree upon essential terms in the future.” Id. (emphasis added).

In contrast, the Agreement here does not indicate an intention to agree upon any essential terms in the future. In fact, contrary to the trial court’s assertion, the Agreement does not imply that there was anything left to agree upon in the future. Rather, the only future occurrence contemplated by the Agreement is the execution of a sales agreement. “An agreement to make and execute a certain written agreement, the terms of which are mutually understood and agreed on, is in all respects as valid and obligatory as the written contract itself would be if executed.” Mastroni-Mucker v. Allstate Ins. Co., 976 A.2d 510, 523 (Pa. Super. 2009). Field v. Golden Triangle Broadcasting, Inc., 305 A.2d 689, 693 (Pa. 1973); GMH Associates v. Prudential Realty Group, 752 A.2d 889 (Pa. Super. 2000); Wang v. Whitetail Mountain Resort, 933 A.2d 110, 112-13 (Pa. Super. 2007).

employment - nurse - ARD - felony

Spence v. Bureau of Prof. and Occup. Affairs - Cmwlth. Court - March 22, 2010 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1692CD09_3-22-10.pdf


The court upheld the BPOA's imposition of a 3-year suspension and 2-year probationary period of a nurse who entered and completed an ARD program involving a 3d degree felony of theft by unlawful taking -- $10,000 - while she was treasurer of a PTO.


The penalty was based on 63 P.S. §224(a)(5) (emphasis added), predicated on a licensee who "has been convicted, or has pleaded guilty, or entered a plea of nolo contendere, or has been found guilty by a judge or jury, of a felony or a crime of moral turpitude, or has received probation without verdict, disposition in lieu of trial or an Accelerated Rehabilitative Disposition in the disposition of felony charges, in the courts of this Commonwealth, the United States or any other state, territory, possession or country." (emphasis added)


The court applied an abuse of discretion standard "defined as a misapplication of the law, a manifestly unreasonable exercise in judgment, or a final result that evidences partiality, prejudice, bias, or ill-will. Allegheny County v. Golf Resort, Inc., 974 A.2d 1242 (Pa. Cmwlth. 2009); Pastorius v. State Real Estate Commission, 466 A.2d 780 (Pa. Cmwlth. 1983). When reviewing the exercise of discretion by an administrative agency, this Court may not, in the absence of bad faith, fraud, capricious action or abuse of power, inquire into the wisdom of the agency's action or into the details or manner of executing agency action.


The bureau and court rejected the argument that the felony did not related to nursing. The "statute does not distinguish between felonies that relate to the practice of nursing and those that do not. Furthermore, the Board’s regulations recognize the importance of trustworthiness in the nursing profession.


It also rejected the argument that her successful completion of ARD should make a difference. Even where criminal charges are resolved in favor of a defendant, an agency may initiate administrative proceedings against the person concerning the same underlying misconduct. Spence v. Pennsylvania Game Commission, 850 A.2d 821 (Pa. Cmwlth. 2004).

UC - willful misconduct - offensive comments

Sadler v. UCBR - Marcy 24, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1800CD09_3-24-10.pdf


Held, library director engaged in willful misconduct when, at a work meeting with other librarians, expressed happines at death of former director by stating that she was happy that the former director died, acted like she was excited, and yelled “yeehaw” in celebration. Later on, during a meeting break but in the presence of the others, she said to another librarian, “Ding dong, the witch is dead,” quoting from the Wizard of Oz song."


For insensitive comments to rise to the level of willful misconduct in cases, such as here, where the Employer has no specific policy governing standards of behavior, they must be of such a character that the speaker knew or intended, or that any reasonable person would have known, that the comments were offensive or inappropriate under the circumstances. Poplin v. UCBR, 690 A.2d 781 (Pa. Cmwlth. 1997). The burden of proof is on the employer to prove allegations of willful misconduct. Phoenixville Area School District v. UCBR, 596 A.2d 889 (Pa. Cmwlth. 1991).
Whether an offensive comment rises to the level of willful misconduct is highly fact-specific.

In Witkowski v. UCBR, 633 A.2d 1259 (Pa. Cmwlth. 1993), we held that a white employee who told two black employees that their employer was “working me like a n----r” committed willful misconduct, while in Poplin, 690 A.2d 781, we held that a white employee who referenced the Ku Klux Klan in the presence of a black employee and then asked the black employee if he wished he were white did not engage in willful misconduct.


In McCall v. UCBR, 717 A.2d 623 (Pa. Cmwlth. 1998), we held that an employee of a business school who was responsible for acquisition and maintenance of a city contract to train persons on welfare engaged in willful misconduct when she questioned whether the program taught students moral values about bearing children out of wedlock and then stated that she “strongly objects to supporting whores on welfare.”


On the other hand, in Gallagher v. UCBR, 388 A.2d 785 (Pa. Cmwlth. 1978), we held that a bartender who called his boss’ girlfriend a “bitch” while at the bar on his day off from work did not engage in willful misconduct because the claimant’s comment was not connected with his work.


Gallagher is most similar to this appeal, but with the important distinction that the claimant in Gallagher was physically present at his place of employment, he was not actually working when he called his employer’s girlfriend a bitch while, here, Claimant was participating in a business meeting at the time of her comments. If Claimant had walked into her library to check out a book on a day she was not working and exclaimed “yeehaw” and “ding dong, the witch is dead” upon hearing of the death of her former director, her comments, while crass, would not have risen to the level of willful misconduct. However, because she was attending a business meeting at the time of her comments and, in fact, interrupted the meeting to express her unabashed pleasure at the news, her conduct was qualitatively different and crossed the line from crassness to willful misconduct. As Claimant acknowledged, it was offensive and inappropriate to express such demonstrative joy over the death of a former supervisor at a business meeting filled with people who knew the deceased and had just learned of her death.

UC - self-employment - sideline activity

LaChance v. UCBR - Cmwlth. Court - December 15, 2009


http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/438CD09_12-15-09.pdf

The UC Law “was not designed to insure a weekly income to those engaged in business ventures who may not realize a profit therefrom during various weekly periods.” Urban v. UCBR, 151 A.2d 655, 656 (Pa. Super. 1959). The Law cannot be used to give benefits to people otherwise employed. See Kirk v. UCBR, 425 A.2d 1188, 1191 (Pa. Cmwlth. 1981) (stating that “[p]ersons who are not so unemployed should not receive benefits from the fund”).

To that end, Section 402(h) of the Law excludes the self-employed from receiving benefits, stating that “[a]n employee shall be ineligible for compensation for any week . . . (h) In which he is engaged in self-employment.” 43 P.S. §802(h). The Law does not expressly define the term “self-employment,” but, in determining whether a claimant is engaged in self-employment, our courts have looked at whether the claimant engaged in positive acts to establish an independent business venture. Leary v. Unemployment Compensation Board of Review, 322 A.2d 749, 750 (Pa. Cmwlth. 1974). In addition, claimants who engaged in business and the solicitation of clients have been viewed as self-employed, regardless of whether the claimants received any income from those efforts. Keslar v. Unemployment Compensation Board of Review, 195 A.2d 886 (Pa. Super. 1963). “Normally the employer has the burden of proving that a claimant is self-employed, but where the bureau acts on its own in suspending benefits because of self-employment, the bureau carries the burden.” Teets v. Unemployment Compensation Board of Review, 615 A.2d 987, 989 (Pa. Cmwlth. 1992).

The Law recognizes that there are industrious individuals who, while employed by another, engage in self-employment which is not their primary source of income. These individuals who become unemployed through no fault of their own may, nonetheless, receive benefits under Section 402(h), which grants an exemption to the general self-employment exclusion. This is known as the sideline activity exception and provides that: [A]n employe who is able and available for full-time work shall be deemed not engaged in self-employment by reason of continued participation without substantial change during a period of unemployment in any activity including farming operations undertaken while customarily employed by an employer in full-time work whether or not such work is in “employment” as defined in this act and continued subsequent to separation from such work when such activity is not engaged in as a primary source of livelihood. 43 P.S. § 802(h).

Our Courts have interpreted this statutory language and held that the sideline activity exception is applicable when the following conditions are met: “(1) that the self-employment activity precedes valid separation from full-time work; (2) that it continues without substantial change after separation; (3) that the claimant remains available for full-time work after separation; and (4) that the selfemployment activity is not the primary source of the claimant’s livelihood.” Moshos v. Unemployment Compensation Board of Review, 466 A.2d 258, 259 (Pa. Cmwlth. 1983). A claimant who wishes to fall within the exception bears the burden of showing that all of these requirements are met. See id. n.2.

The parties concede that Claimant meets the first, third, and fourth conditions of the sideline activity exception. The central dispute is whether Claimant meets the second condition of the sideline activity exception. That is, whether Claimant’s increased activity in Quintessence, from zero hours per week to twenty hours per week, absent evidence of income, constitutes a substantial change after separation in which case Claimant would not meet the exception.

In support of his argument, Claimant relies on this Court’s decisions in Dausch v. UCBR, 725 A.2d 230 (Pa. Cmwlth. 1999), and LaSalle v. UCBR, 522 A.2d 1160 (Pa. Cmwlth. 1987). In Dausch, this Court examined the second condition of the sideline activity exception and concluded that “mere preparations undertaken to expand a sideline business . . . do not constitute a substantial change in the sideline business.” Id. at 232 (emphasis added).

In discussing whether a substantial change has occurred in a sideline business pursuant to the second condition, this Court cited to Quinn v. UCBR, 446 A.2d 714, 715 (Pa. Cmwlth. 1982), and Higgins v. UCBR, 405 A.2d 1024, 1025 (Pa. Cmwlth. 1979), as examples of how this Court has “focused primarily on whether a claimant is working in the activity for significantly more hours than he did prior to separation.” Dausch, 725 A.2d at 232 n.7 (emphasis added). In Quinn, 446 A.2d at 715, and Higgins, 405 A.2d at 1025, we held that an increase in hours from thirty to sixty per week and from ten to forty-five per week, respectively, constituted a substantial change in activity in the claimants’ sideline businesses. The Dausch court expanded its focus and did not only look at the hours worked prior to and after separation, but also examined the claimant’s actions to determine whether they were preparatory in nature or whether services were actually performed. Dausch, 725 A.2d at 232. This Court held that because there was no evidence that the claimant worked from the leased office prior to his benefits being terminated, solicited business or advertised for business prior to his termination, or performed services for clients prior to the time that his benefits were terminated, “the claimant’s sideline business activity did not substantially change after his separation from [employer].” Id.

Here, we must disagree with Claimant’s contention that his conduct was merely preparatory in nature and therefore his increase in hours is analogous to that in Dausch. First, just like in Quinn and Higgins, Claimant significantly increased the number of hours he worked (from zero to 20 hours per week) at his sideline business after his termination. Second, Claimant’s conduct of networking for twenty hours per week cannot be classified as merely preparatory and similar to the conduct of the claimant in Dausch. When Claimant, in this case, engaged in soliciting clients and discussing the professional services he could offer to them, he was performing activities that he would perform as part of his independent business venture. This type of activity was specifically found lacking in Dausch. Therefore, Claimant’s argument that Dausch requires Claimant to be found eligible for benefits because his activity did not constitute a substantial change after separation is rejected.

Claimant also contends that, because he generated no income from his sideline activity, he has established that his self-employment activity continues without substantial change pursuant to LaSalle. However, first, we acknowledge this Court’s rule of law that claimants who engage in business and the solicitation of clients have been viewed as self-employed, regardless of whether the claimants received any income from those efforts. Keslar, 195 A.2d at 886.

Second, we note that, although this Court in LaSalle stated that during the claim weeks at issue the claimant in that case did not generate any income from the sideline business, our Court also held that there was “no record evidence to indicate that Claimant’s real estate activity ha[d] increased since her work separation.” LaSalle, 522 A.2d at 1162. Unlike the facts in LaSalle, there is clear evidence here that Claimant significantly increased the amount of work he did for Quintessence following his separation from Employer, which was more than preparatory in nature. Accordingly, we conclude that Claimant’s conduct here constitutes a substantial change in sideline activity.

While we certainly sympathize with Claimant in these financially difficult times, we are constrained by rules of law. The Board did not commit an error of law and, therefore, the Board’s order is affirmed.

disability - hypothetical question - all impairments

Strouse v. Astrue - ED Pa. - March 19, 2010


http://www.paed.uscourts.gov/documents/opinions/10D0273P.pdf


The case was remanded because of the ALJ's failure to include all of the claimant's mental impairments in his hypothetical question to the vocational expert.


During the fifth step of the evaluation process, the ALJ may pose a hypothetical question to a VE to determine what jobs the claimant is capable of performing given his impairments. Rutherford, 399 F.3d at 554 (3d Cir. 2005). The hypothetical question “must reflect all of a claimant’s impairments supported by the record; otherwise the question is deficient and the expert’s answer to it cannot be considered substantial evidence.” Chrupcala v.Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987) (citations omitted). The hypothetical need not contain every impairment alleged by the claimant, but it must convey all credibly established limitations. Rutherford, 399 F.3d at 554.


Claimant contends the ALJ did not consider his moderate deficiencies in concentration, persistence, or pace. In a similar case, the Third Circuit found “a requirement that a job be limited to one to two step tasks, as was stated in the hypothetical relied upon by the ALJ, does not adequately encompass a finding that [petitioner] ‘often’ has deficiencies in concentration, persistence, or pace.” Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004). The court concluded the ALJ should have taken the claimant’s deficiencies in pace into account, explaining, “[m]any employers require a certain output level from their employees over a given amount of time, and an individual with deficiencies in pacemight be able to performsimple tasks, but not over an extended period of time.” Id. The court reasoned the VE may have changed her answer as to whether there were jobs in the local or national economy the claimant could perform if the hypothetical had included difficulties inmaintaining concentration, persistence, or pace. Id. Because the hypothetical did not adequately convey all of Ramirez’s impairments, the Third Circuit remanded his claimto the ALJ. Id. at 555.


Because the ALJ did not include claimant’s difficulties in maintaining concentration, persistence, or pace in the hypothetical question posed to the VE, this case is analogous to Ramirez. Thus, because the VE’s answer did not reflect all of claimant's credibly-established impairments, the hypothetical question posed by the ALJ was deficient, and the VE’s answer to it cannot be considered substantial evidence. This Court agrees with the recommendation of the Magistrate Judge, and finds the matter should be remanded to the ALJ to properly include this information in the hypothetical question to the VE.

welfare - MA - repayment - personal liability of surviving child

Maloy v. DPW - March 22, 2010

http://www.pacourts.us/OpPosting/Cwealth/out/1575CD09_6-10-10.pdf

Decendent's son/executor held personally liable for MA overpayments made to his deceased father.


The statute governing this situation provides that when undisclosed property makes a recipient ineligible for benefits, leading to overpayment, “[r]epayment of the overpayment shall be sought from the recipient, the person receiving or holding such property, the recipient’s estate and/or survivors benefiting from receiving such property.” Section 1408(c)(6)(i) of the Public Welfare Code,3 62 P.S. § 1408(c)(6)(i).


The ALJ found that the undisclosed transfer of the interest in the decedent's property was for inadequate consideration, and that this transfer made the decedent ineligible for benefits in the amount of the transferred interest. These findings, especially the former, are not challenged on appeal.


As the person to whom the interest in the decedent's property was transferred, the son certainly qualifies as one from whom repayment may be sought, because he is a “person receiving or holding [the undisclosed] property” that rendered his father ineligible for benefits.


The son's sole argument before this court, essentially, is that it would be unfair to collect repayment from him rather than from the estate. There is nothing about the Department’s decision to collect repayment from the son that approaches abuse of discretion or arbitrariness. Not only is the collection of repayment expressly authorized, but it seems entirely appropriate, given that it was his actions that led to the overpayment. It was the son, in his role as guardian, who executed the transaction that made the father ineligible for benefits; it was the son who failed to report that transaction to the Department, leading to the overpayment; and it was the son who failed to spend the proceeds of that transaction on the needs of the father, as he was required to do.

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child abuse - expungement - "serious mental injury"

In re C.B. - Cmwlth. Court - March 22, 2010 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1214CD09_3-22-10.pdf


Held, the evidence of abuse did not fall within the definition of a serious mental injury in Section 6303(a) of the Child Protective Services Law, 23 Pa. C.S. § 6303(a), which is defined a psychological condition which : (1) renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the child's life or safety is threatened; or (2) seriously interferes with a child's ability to accomplish age-appropriate developmental and social tasks.

To fall within the definition of a serious mental injury in Section 6303(a) of the Law, the child's condition must have rendered him to suffer a chronic and severe psychological condition, placed him in reasonable fear that his life or safety was threatened, or seriously interfered with his ability to accomplish developmental and social tasks appropriate for his age. The evidence accepted by the ALJ and the Bureau satisfied none of these elements of serious mental injury, citing In Luzerne County Children and Youth Services v. DPW, 550 A.2d 604 (Pa. Cmwlth. 1988). The court thus reversed the final DPW order.

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UC - willful misconduct - mandatory overtime

Phillips v. UCBR - Cmwlth. Court - March 22, 2010 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/2086CD09_3-22-10.pdf

Refusal to work mandatory overtime without good cause when an employee knows it is required constitutes willful misconduct. Waltz v. UCBR, 533 A.2d 199 (Pa. Cmwlth. 1987).

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UC - findings - no implicit findings - remand

Johnson v. UCBR - March 17, 2010 - unreported memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/1607CD09_3-17-10.pdf


Pro se claimant/appellant was successful in getting the case remanded to the UCBR, because the Board failed to make a critical finding of fact about claimant's knowledge of her duty to get state employment clearances.


The court said that

We decline to accept the “implicit” finding of fact that is critical to the outcome of this matter. Indeed, our Supreme Court has cautioned against such implicit findings stating, “[a]n appellate court or other reviewing body should not infer from the absence of a finding on a given point that the question was resolved in favor of the party who prevailed below, for the point may have been overlooked or the law misunderstood at the trial or hearing level.” Page's Department Store v. Velardi, 464 Pa. 276, 287, 346 A.2d 556, 561 (1975); see also Monroe G. Koggan Associates, Inc. v. UCBR, 472 A.2d 277, 280 (Pa. Cmwlth. 1984)

Moreover, we have held that a remand is appropriate: "where the findings of fact are inadequate and cannot be construed to resolve all of the factual issues necessary for proper appellate review, “[i]t is not for this Court . . . to make findings of fact because the duty to consider and evaluate testimony and to make findings of fact thereon is for the fact-finder. When the fact-finder in an administrative proceeding is required to set forth [its] findings in an adjudication that adjudication must include all findings necessary to resolve the issues raised by the evidence which are relevant to the decision.” Monroe G. Koggan, 472 A.2d at 280 (emphasis added) (quoting Lipchack v. UCBR, 383 A.2d 970, 972 (Pa. Cmwlth. 1978) (citations omitted)).

foreclosure - standing - link to list of cases on standing

Here is a link to a web site listing recent foreclosure cases which were dismissed or motion for relief from stay (bankruptcy) was denied because the plaintiff was unable to demonstrate that it had standing.

Some of the cases discuss whether MERS is a proper plaintiff, and others discuss securitization issues and whether the lack of a proper assignment bars a foreclosure.

http://www.msfraud.org/LAW/Lounge/Standing.html

UC - quit v. discharge - imminence of discharge

Consolidation Coal Co. v. UCBR - March 15, 2010 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1583CD09_3-15-10.pdf

The court reversed the UCBR decision granting benefits to the claimant, holding that he quit to avoid the possibility of a later discharge.

Discharge imminent
Generally, where a claimant resigns in lieu of imminent discharge, the situation is considered to be a discharge. See Ford v. UCBR, 498 A.2d 449, 451 (Pa. Cmwlth. 1985) (in order for a quit to be treated as a discharge, a claimant must be “given the choice of quitting or being fired”); UCBR v. Simone, 355 A.2d 614, 615 & n.2 (Pa. Cmwlth. 1976) (Board properly considered claimant’s quit a discharge where claimant was “given the option of resigning or being discharged [and] resigned in order to avoid being fired”).

Discharge possible
However, “where an employee resigns to avoid the chance of being fired, that employee will be treated as having voluntarily quit for the purposes of determining eligibility for unemployment compensation.” Scott v. UCBR, 437 A.2d 1304, 1307 (Pa. Cmwlth. 1981) (emphasis in original). Whether a claimant was discharged or voluntarily quit is a question of law subject to this Court’s plenary review, based on the facts as found by the Board. Wise v. UCBR, 700 A.2d 1071, 1073 (Pa. Cmwlth. 1997). “In deciding whether an employee voluntarily resigned or was discharged, we must examine the facts in their totality.” Pennsylvania Liquor Control Board v. UCBR, 648 A.2d 124, 127 (Pa. Cmwlth. 1994).

In this case, it appears that Employer wished to discharge Claimant, but it is not clear that Employer could have successfully done so. “[T]he existence of a right to appeal [a] threatened discharge render[s] the prospect of discharge less than a certainty.” Hill v. UCBR, 385 A.2d 1032, 1033 (Pa. Cmwlth. 1978). See also Rosenberg v. UCBR, 560 A.2d 292, 294 (Pa. Cmwlth. 1989) (claimant voluntarily quit his employment despite his employer’s expressed desire to discharge him because he had a contractual right to continued employment).

Here, Employer wished to discharge Claimant, but Claimant only faced the possibility of discharge. Claimant, by his own admission, had a right to arbitration; he would only have lost his job if the outcome of arbitration would have been unfavorable to him. Claimant testified that he resigned to avoid the possibility that he would be discharged after arbitration and because he did not have a driver’s license.3 “[O]ne who quits his work merely to avoid the chance of being fired is not entitled to compensation.” Hill, 385 A.2d at 1033. Under these circumstances we hold that, as a matter of law, Claimant voluntarily resigned his employment without good cause to do so.4 We must, therefore, reverse the order of the Board.

welfare - tax refund intercept - distribution

Rooney v. DPW - Cmwlth. Court - February 24, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1128CD09_2-24-10.pdf


Held: Tax refund to father properly retained by the Commonwealth and applied to the amount of child support arrears owed to DPW. The refund was held to have been properly distributed according to 23 Pa. C.S. §4374. Mother's pro se challenge rejected.

FMLA - serious health condition - proof

Schaar v. Lehigh Valley Health Services - 3d Cir. - March 11, 2010


http://www.ca3.uscourts.gov/opinarch/091635p.pdf


Held: A combination of lay and expert testimony can establish that a worker has a "serious health condition" under the FMLA.


The purpose of the FMLA is “to balance the demands of the workplace with the needs of families.” 29 U.S.C. § 2601(b)(1). Accordingly, the FMLA “entitle[s] employees to take reasonable leave for medical reasons,” id. § 2601(b)(2), but they must do so “in a manner that accommodates the legitimate interests of employers.” Id. § 2601(b)(3).

An eligible employee is entitled “to a total of twelve workweeks of leave during any twelve month period” but only if the employee has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” Id. § 2612(a)(1)(D).

The FMLA defines serious health condition as “an illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider.” Id. § 2611(11). A DOL regulation further defines continuing treatment by a health care provider as a “period of incapacity . . . of more than three consecutive calendar days . . . that also involves . . . [t]reatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.”4 29 C.F.R. § 825.114(a) (2005). Incapacity means the “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.” Id.

The only issue in dispute is whether Schaar presented evidence that she was incapacitated for more than three days. The District Court held Schaar had to establish more than three days of incapacitation through medical evidence. Because Schaar presented a doctor’s note that established incapacitation for only two days and relied on her own testimony about the remaining days, the District Court granted summary judgment for Lehigh Valley.

Although we have not addressed the question presented by this appeal, other courts have adopted three approaches: (1) the evidence of incapacitation must come exclusively from a medical professional; (2) lay testimony, on its own, is sufficient; or (3) lay testimony can supplement medical professional testimony or other medical evidence. Many district courts, including those in the Third Circuit, have held that a health care provider’s professional medical opinion is the only evidence that can establish incapacity. Contrary to the aforementioned district courts, all of the circuit courts of appeals to address the question we now consider have held that lay testimony can create a genuine issue of material fact regarding incapacitation. Some of our sister circuits have held that lay testimony alone is sufficient to establish incapacitation, while others have held that lay testimony may be used to supplement medical evidence.

Because the incapacitation regulation does not require, or even mention, a health care provider determination, id. § 825.114, we find no support in the regulations to exclude categorically all lay testimony regarding the length of an employee’s incapacitation. However, we do not find lay testimony, by itself, sufficient to create a genuine issue of material fact. Some medical evidence is still necessary to show that the incapacitation was “due to” the serious health condition. 29 C.F.R. § 825. This does not place an undue burden on employees because they must present some medical evidence anyway to establish the inability to perform the functions of the position. Id. § 825.115. In contrast, allowing unsupported lay testimony would place too heavy a burden on employers to inquire into an employee’s eligibility for FMLA leave based solely on the employee’s self-diagnosed illness. For these reasons, we hold that an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony.

civil procedure - frivilous litigation - pro se plaintiff - Rule 233.1

http://www.pacourts.us/OpPosting/Supreme/out/522civ.attach.pdf - rule

Rule 233.1. Frivolous Litigation. Pro Se Plaintiff. Motion to Dismiss

(a) Upon the commencement of any action filed by a pro se plaintiff in the court of common pleas, a defendant may file a motion to dismiss the action on the basis that

(1) the pro se plaintiff is alleging the same or related claims which the pro se plaintiff raised in a prior action against the same or related defendants, and

(2) these claims have already been resolved pursuant to a written settlement agreement or a court proceeding.

(b) The court may stay the action while the motion is pending.

(c) Upon granting the motion and dismissing the action, the court may bar the pro se plaintiff from pursuing additional pro se litigation against the same or related defendants raising the same or related claims without leave of court.

(d) The court may sua sponte dismiss an action that is filed in violation of a court order entered under subdivision (c).

Note: A pro se party is not barred from raising counterclaims or claims against other parties in litigation that the pro se plaintiff did not institute.

(e) The provisions of this rule do not apply to actions under the rules of civil procedure governing family law actions

= = = = = = = = =

http://www.pacourts.us/OpPosting/Supreme/out/522civ.rpt.pdf

Explanatory Comment

It has come to the attention of the Supreme Court that certain litigants are abusing the legal system by repeatedly filing new litigation raising the same claims against the same defendant even though the claims have been previously adjudicated either through settlement or through court proceedings.

New Rule 233.1 provides relief to a defendant who has been subjected to this type of repetitive litigation.

While attorneys are subject to the rules of disciplinary procedure, no analogous rule exists to curb this type of abuse when done by a pro se party.

Upon the filing of an action by a pro se plaintiff, a defendant may file a motion to dismiss a pending action provided that (1) the pro se plaintiff is alleging the same or related claims against the same or related defendants, and (2) the claims have already been resolved pursuant to a settlement agreement or a court proceeding.

The new rule also gives the trial court discretion to bar the pro se litigant from filing further litigation against the same or related defendants raising the same or related claims without leave of court.

By the Civil Procedural Rules Committee

Stewart L. Kurtz Chair

UC - financial eligibility

Fasy v. UCBR - Cmwlth. Court - March 5, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1442CD09_3-5-10.pdf

Claimant had high quarter wages of $13,846.00 in the 4th quarter of 2008, and total base year wages of $21,515.00.

Section 401(a) of the Law provides that compensation shall be payable to any employee who is or becomes unemployed and who has, within the base year, been paid wages for employment as required by Section 404(c) of the Law.

Section 404(c) of the Law sets forth that a claimant’s financial eligibility will be determined in accordance with the table set forth in Section 404(e) of the Law. Section 404(e) of the Law provides that a claimant whose highest quarter base year wages amount to $13,846.00 can qualify for benefits at a weekly rate of $556.00 provided his total base year wages amount to at least $22,160.00.

In the present controversy, Claimant’s total base year wages amounted to $21,515.00, an amount which falls short of the qualifying $22,160.00. Therefore, Claimant must be ruled financially ineligible for benefits under Section 404(e) of the Law.

However, Section 404(a)(3) of the Law provides the following:

If the base year wages of an employe whose weekly benefit rate has been determined under clause (1) of paragraph (1) of this subsection, or redetermined under paragraph (2) of this subsection, as the case may be, are insufficient to qualify him under subsection (c) of this section but are sufficient to qualify him for any one of the next three lower weekly benefit rates, his weekly benefit rate shall be redetermined at the highest of such next lower rates.

The third lowest weekly benefit rate requires total base year wages of $22,040.00. As stated previously, Claimant’s total base year wages amounted to $21,515.00, which is less than the third lowest weekly benefit rate required. Therefore, Claimant is financially ineligible for benefits under Section 404(a)(3) of the Law and the Board and referee did not err in so determining.

In Martin v. UCBR, 502 Pa. 282, 466 A.2d 107 (1983), the Supreme Court determined that the statutory scheme used to determine the level of monetary earnings qualifying a worker for unemployment compensation benefits under Section 404(a) of the Law, did not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Thus, the Board, in the present controversy, did not violate Claimant’s constitutional rights.

admin. law - credibility - does not depend on # of witnesses

Affordable Comfort Contracting, Inc. v. UCBR - Cmwlth. Court - February 18, 2010 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/944CD09_2-18-10.pdf

When an employer trots out a whole bunch of witnesses at a UC hearing, with just the claimant on the other side, remind the referee of the quote from the Supreme Court cited in this case.

The facts that [Employer] produced a greater number of witnesses, and that they assert that their witnesses were more credible, are not paramount. Evidence offered by the claimants was not rendered insubstantial by the mere fact that it was contradicted by evidence introduced by [Employer]. Hence, the court below properly determined that the. . . testimony adduced by the claimants provided the requisite basis for the referees' findings.

Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 531 Pa. 287, 393, 612 A.2d 434, 437 (1992).

tax sale - notice - rescheduled sale - statutory and due process rights

In re Upset Sale Tax Claim - Appeal of David Keller - Commonwealth Court - March 2, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1373CD09_3-2-10.pdf


The court rejected the appeal of the purchaser of real property at an upset tax sale, who claimed that the property owner received sufficient knowledge of the original and rescheduled sales. The court held that the property owner had not received the notice required by the relevant statutes, and that the tax bureau violated the lower court's order concerning notice of the rescheduled sale, in volation of the property owner's due process rights.


In cases where a final, rescheduled sale takes place within the same calendar year as the date for which it was originally scheduled, no additional notice of a rescheduled sale is required, as set out in 72 P.S. §5860.601(a), provided that there there is proper notice of the original sale. Appeal of Manor Investments, Ltd., 640 A.2d 946 (Pa. Cmwlth. 1994); Sale of Property of Dalessio, 657 A.2d 1386 (Pa. Cmwlth. 1995)


Here, notice of the original sale "was given by several methods, but not all methods required by law," 72 P.S. §§5860.601(a). Thus, even though "there was some notice for the [original] sale, and some other notice for the [rescheduled] sale,. . . no sale satisfied all the statutory requirements. A valid tax sale depends on strict compliance with the three notice requirements in Section 602 of the Law: publication, certified mail and posting. Fernandez v. Tax Claim Bureau, 925 A.2d 207 (Pa. Cmwlth. 2007). The Bureau bears the burden of proving it complied with these notice requirements. Id. The Bureau failed to carry its burden in this case."


In addition, the court stated (in n. 5) that the trial court’s orders rescheduling the tax sale provided that the local tax bureau was "directed to take the requisite steps to provide adequate notice of the rescheduled sale date” but that it failed to do so. Thus, the "Bureau violated the court order upon which it claims the authority to effectuate the [final] tax sale. This constitutes a violation of Owner’s due process rights. See Jones v. Flowers, 547 U.S. 220 (2006) (before a government can force a citizen to satisfy his tax debt by forfeiting his property, due process requires the government provide adequate notice of the impending taking).


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Note: The court's statement in n. 5 above under the decision of the Superior Court in Dewey v. LaSalle Bank Natl. Assn., a case which David Hull and Kevin Quisenberry litigated, which also involved inadequate notice of a rescheduled sale. The gist of their argument concerns Pa. R.C.P. 3129. The Supreme Court denied their petition for allowance of appeal, but the instant decision may help in future cases.

consumer - Debt Management Services Act - constitutionality

US Organizations for Bankruptcy Alternatives v. Dept. of Banking - Cmwlth. Court - February 25, 2010 (2-1 decision)


http://www.pacourts.us/OpPosting/Cwealth/out/69MD09_2-25-10.pdf


A 3-judge panel of the Commonwealth Court held that sections of the Debt Management Services Act, Act of October 9, 2008, P.L. 1421, 63 P.S. §§ 2401 – 2449 were facially unconstitutional. The DMSA (Act 117), grants the Department of Banking broad powers to regulate both debt settlement services (DSS) Providers and providers of debt management services (DMS Providers).


Regulation of conduct
Because we have held, Association of Settlement Companies v. Department of Banking, 977 A.2d 1257, 1262-63 (Pa. Cmwlth. 2009), that the Department lacks the authority to promulgate regulations affecting DSS Providers, we must declare the Section 3(b) requirement that DSS Providers operate “in accordance with regulations promulgated by the department regarding the conduct of debt settlement services,” 63 P.S. § 2403(b), unconstitutional and unenforceable.


Regulation of fees
Similarly, in Association of Settlement Companies, this Court held that Act 117, Section 15(h) of Act 117, 63 P.S. § 2415(h), provided no standards or restraints on its grant of authority to the Department to set and regulate the fees that DSS Providers may charge. Id., 977 A.2d at 1269- 70.


Licensing
However, with regard to the licensing of DSS Providers, i“Act 117 contains adequate policy choices with regard to the licensing of DSS Providers and contains sufficient standards to guide and restrain the Department in carrying out these policy choices.” Id., 977 A.2d at 1265. Therefore, we do not have, at this stage in the litigation, any basis upon which to declare the remainder of Act 117 unconstitutional. We, therefore, grant USOBA’s Application only in part, as discussed above, and deny it in part.