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).
Monday, November 22, 2010
Friday, November 19, 2010
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.
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.
Friday, November 05, 2010
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
Tuesday, November 02, 2010
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").
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).
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