UC - appeal - email - timeliness - opportunity to rebut absence of evid. of receipt by UCBR

Bennett v. UCBR - Cmwlth. Court - December 16, 2011 (en banc, 6-1)

http://www.pacourts.us/OpPosting/Cwealth/out/2703CD10_12-16-11.pdf

The Court vacated the UCBR decision on timeliness of the appeal and remanded the case, directing the Board to consider the claimant's evidence on the issue, which the Board had previously ignored, holding that this was a capricious disregard of competent evidence.

Wright v. UCBR, ___ A.3d ___ (Pa. Cmwlth., filed December 16, 2011) (en banc, 5-2), established that the absence of an appeal document in the Board’s record creates, at best, an inference that the Board did not receive the document and, therefore, that it was not filed. In that situation, a claimant should be given an opportunity to establish, at a hearing before a referee, that he or she filed a timely appeal notwithstanding the absence of the appeal document in the Board’s record.

Here and in Wright (also filed today), the court held that the failure to consider the claimant's uncontradicted evidence on the issue of timeliness constituted a capricious disregard of the uncontradicted evidence at the hearing before the referee. In each case, that evidence included testimony and documents that showed that, though not in the Board’s record, the claimant transmitted the earlier appeal document to the Board

Like the claimant in Wright, here Claimant offered testimony that, if found credible and persuasive, would establish that he sent an appeal of the notice of determination to the Board by electronic means before the expiration of the appeal deadline.

Neither the Referee nor the Board addressed Claimant’s testimony or supporting documents in their decisions. Instead, like the Board in Wright, they both appear to have ignored the hearing record and, instead, based their decisions solely on what was (and was not) in the Board’s record prior to the hearing.

The court found this "particularly troubling", because the Board’s hearing notice expressly provided that purpose of the hearing was to take testimony on the issue of the timeliness of Claimant’s appeal. It found that Claimant’s testimony, if found credible and persuasive, and exhibits could support a finding that he filed a timely appeal by e-mail, notwithstanding the absence of that earlier e-mail appeal in the Board’s record. Accordingly, the Board capriciously disregarded record evidence.

The court rejected the Board argument that this case is controlled by Roman-Hutchinson v. UCBR, 972 A.2d 1286 (Pa. Cmwlth. 2009), since in that case, the Board at least considered the claimant’s evidence and made factual findings with respect to the claimant’s claim that, notwithstanding its absence from the Board’s record, the claimant filed an earlier, timely appeal by e-mail. Here, the Board and the Referee made no such findings. Claimant here, like the claimant in Wright, attempted to establish by evidence at a hearing that the Board did, in fact, receive the earlier filed appeal and received it before the appeal deadline. For these reasons, Roman-Hutchinson does not control this appeal.

The court vacated the Board’s decision and remanded the matter for the Board to consider the evidence of record put forth by Claimant to show that he filed a timely appeal by e-mail and to make appropriate and necessary factual findings.

admin. law - federal APA - arbitrary and capricious

http://www.supremecourt.gov/opinions/11pdf/10-694.pdf

key quote -

This case requires us to decide whether the BIA’s policy for applying a section of the immigration law is "arbitrary [or] capricious" under the Administrative Procedure Act(APA), 5 U. S. C. §706(2)(A). The scope of our reviewunder this standard is "narrow"; as we have often recognized, "a court is not to substitute its judgment for that of the agency." . . . . Agencies. . . have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decision-making. When reviewing an agency action, we must assess, among other matters, "‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’" . . . .That task involves examining the reasons for agency decisions—or, as the case may be, the absence of such reasons. . . . .See FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009) (noting "the requirement that an agency provide reasoned explanation for its action").

The BIA has flunked that test here. By hinging a deportable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—amatter irrelevant to the alien’s fitness to reside in this country—the BIA has failed to exercise its discretion in a reasoned manner. [emphasis added]

_______________________

SUPREME COURT OF THE UNITED STATES

Syllabus

JUDULANG

v

. HOLDER, ATTORNEY GENERAL

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

No. 10–694. Argued October 12, 2011—Decided December 12, 2011

Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted. Before 1996, these two kinds of action occurred in different procedural settings; since then, the Government has employed a unified "removal proceeding" for exclusions and deportations alike. But the immigration laws have always provided separate lists of substantive grounds for the two actions. One list specifies what crimes render an alien excludable, see 8 U. S. C. §1182(a), while another—sometimes overlapping and sometimes divergent—list specifies what crimes render an alien deportable, see §1227(a). Until repealed in 1996, §212(c) of the Immigration and Nationality Act permitted the Attorney General to grant discretionary relief to an excludable alien, if the alien had lawfully resided in the United States for at least seven years before temporarily leaving the country and if the alien was not excludable on one of two specified grounds. By its terms, §212(c) applied only in exclusion proceedings, but the Board of Immigration Appeals (BIA) extended it decades ago to deportation proceedings as well. Although Congress substituted a narrower discretionary remedy for §212(c) in 1996, see §1229b, §212(c)’s broader relief remains available to an alien whose removal is based on a guilty plea entered before §212(c)’s repeal, INS v. St. Cyr, 533 U. S. 289, 326.

In deciding whether to exclude such an alien, the BIA first checks the statutory ground identified by the Department of Homeland Security (DHS) as the basis for exclusion. Unless that ground is one of the two falling outside §212(c)’s scope, the alien is eligible for discretionary relief. The BIA then determines whether to grant relief based on such factors as the seriousness of the offense.

This case concerns the BIA’s method for applying §212(c) in the deportation context. The BIA’s approach, known as the "comparable grounds" rule, evaluates whether the charged deportation ground has a close analogue in the statute’s list of exclusion grounds. If the deportation ground consists of a set of crimes "substantially equivalent" to the set making up an exclusion ground, the alien can seek §212(c) relief. But if the deportation ground covers different or more or fewer offenses than any exclusion ground, the alien is ineligible for relief, even if the alien’s particular offense falls within an exclusion ground.

Petitioner Judulang, who has lived continuously in the United States as a lawful permanent resident since 1974, pleaded guilty to voluntary manslaughter in 1988. After he pleaded guilty to another crime in 2005, DHS commenced a deportation action, charging him with having committed an "aggravated felony" involving "a crime of violence" based on his manslaughter conviction. The Immigration Judge ordered Judulang’s deportation, and the BIA affirmed, findingJudulang ineligible for §212(c) relief because the "crime of violence" deportation ground is not comparable to any exclusion ground. The Ninth Circuit, having previously upheld the BIA’s comparablegrounds rule, denied Judulang’s petition for review.

Held:

The BIA’s policy for applying §212(c) in deportation cases is "arbitrary and capricious" under the Administrative Procedure Act, 5 U. S. C. §706(2)(A). Pp. 9–21.

(a) While agencies have expertise and experience in administering their statutes that no court may properly ignore, courts retain a narrow but important role in ensuring that agencies have engaged inreasoned decisionmaking. Thus, in reviewing the BIA’s action, this Court must assess, among other matters, "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43. That task involves examining the reasons for agency decisions, or the absence of such reasons.

The comparable-grounds approach cannot survive scrutiny underthis standard. By hinging a deportable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—a matter irrelevant to the alien’s fitness to reside in thiscountry—the BIA has failed to exercise its discretion in a reasoned manner. Pp. 9–10.

(b) Even if the BIA has legitimate reasons for limiting §212(c)’s scope in deportation cases, it must do so in some rational way. In other words, the BIA must use an approach that is tied to the purposes of the immigration laws or the appropriate operation of the immigration system. The comparable-grounds rule has no connection to these factors. Instead, it makes §212(c) eligibility turn on an irrelevant comparison between statutory provisions. Whether the set of offenses in a particular deportation ground lines up with the set in anexclusion ground has nothing to do with whether a deportable alienwhose prior conviction falls within both grounds merits the ability tostay in this country. Here, Judulang was found ineligible for §212(c)relief because the "crime of violence" deportation ground includes a few offenses—simple assault, minor burglary, and unauthorized use of a vehicle—not found in the similar moral turpitude exclusion ground. But the inclusion of simple assaults and minor burglaries in the deportation ground is irrelevant to the merits of Judulang’s case.

The BIA’s approach has other odd features. In applying the comparable-grounds rule, the BIA has denied relief to aliens whose deportation ground fits entirely within a much broader exclusion ground. Yet providing relief in exclusion cases to a broad class of aliens hardly justifies denying relief in deportation cases to a subset of that group. In addition, the outcome of the comparable-grounds analysis may itself rest on an arbitrary decision. An alien’s priorconviction could fall within a number of deportation grounds, only one of which corresponds to an exclusion ground. In such cases, an alien’s eligibility for relief would hinge on an individual official’s decision as to which deportation ground to charge. An alien appearing before one official may suffer deportation, while an identically situated alien appearing before another may gain the right to stay in this country.

In short, the comparable-grounds approach does not rest on anyfactors relevant to whether an alien should be deported. Instead, itturns deportation decisions into a "sport of chance." Rosenberg v. Fleuti, 374 U. S. 449, 455. That is what the APA’s "arbitrary and capricious" standard is designed to prevent. Pp. 10–15.

(c) The Government’s arguments in defense of the comparablegrounds rule are not persuasive. First, §212(c)’s text does not support the rule. That section cannot provide a textual anchor for any method of providing discretionary relief in deportation cases becauseit addresses only exclusion. Second, the history of the comparablegrounds rule does not work in the Government’s favor. The BIA repeatedly vacillated in its method for applying §212(c) to deportablealiens, settling on the current rule only in 2005. Third, the Government’s claim that the comparable-grounds rule saves time and moneyfalls short. Cost may be an important factor for agencies to consider in many contexts, but cheapness alone cannot save an arbitrary agency policy. In any event, it is unclear that the comparablegrounds rule saves money when compared with alternative approaches. Pp. 16–21.

249 Fed. Appx. 499, reversed and remanded. KAGAN, J., delivered the opinion for a unanimous Court.

UC - hearsay - no duty to rebut

Chambersburg Hospital v. UCBR - December 8, 2011 - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/954CD11_12-8-11.pdf

Employer relies on L. Washington & Associates v. UCBR, 662 A.2d 1148 (Pa. Cmwlth. 1995), for the proposition that one’s silence may constitute an admission. The "failure of a party to reply to a statement made in his presence or at hearing, is significant only where the nature of the statement, and the circumstances under which it was made, are such as render a reply natural and proper." L. Washington, 662 A.2d at 1149. (quoting Levin v. Van Horn, 412 Pa. 322, 194 A.2d 419 (1963)). However, this Court has limited the application of L. Washington in Carson v. UCBR, 711 A.2d 582 (Pa. Cmwlth. 1998), where we explained that in order for this proposition to apply, an employer must ask a claimant about the allegation prior to hearing or at the hearing in front of the referee. Carson, 711 A.2d at 585. Specifically, this Court opined:

Our [previous] holdings are not to be considered a lessening of employer’s burden of proof in a willful misconduct case. It is not appropriate to require a claimant to deny uncorroborated, hearsay allegations raised by an employer at a hearing, particularly when the burden of proof lies with the employer. Id.

Here, Employer is asking this Court to require Claimant to deny uncorroborated hearsay allegations. At no time during the hearing did Employer or Employer’s counsel directly ask Claimant her whereabouts on the days she called off. As Carson points out, "we will not penalize claimant for the tactical errors made by employer in this case." Carson, 711 A.2d at 585. L. Washington would be applicable if Employer confronted Claimant during the hearing about her specific dates at the beach, but this was not the case.

_____________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

UC - claimant not self-employed - presumption

Moran v. UCBR - Cmwlth. Court - December 8, 2011 - unpublished memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/474CD11_12-8-11.pdf

The court reversed the Board decision that claimant was an independent contractor.

Section 402(h) of the Law provides an employee "shall be ineligible for compensation for any week … in which he is engaged in self-employment." 43 P.S. §802(h). The legislature did not define the term self-employment in Section 402 of the Law. Therefore, this Court utilizes the language of Section 4(l)(2)(B) of the Law to fill the gap. Beacon Flag Car Co. v. UCBR, 910 A.2d 103 (Pa. Cmwlth. 2006) (holding the clear purpose of Section 402(h) of the Law is to exclude independent contractors from coverage); see also Glatfelter Barber Shop v. UCBR, 958 A.2d 786 (Pa. Cmwlth. 2008).

In pertinent part Section 4(l)(2)(B) of the Law provides: Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that -- (a) such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business. 43 P.S. § 753(l)(2)(B).

Accordingly, both prongs of the test stated in Section 4(l)(2)(B) of the Law must be satisfied before an individual will be deemed an independent contractor. Venango Newspapers v. U CBR, 631 A.2d 1384 (Pa. Cmwlth. 1993). In employment cases, a strong presumption exists that an individual receiving wages for his services is an employee, and the burden to overcome that presumption rests on the employer. Sharp Equip. Co. v. U CBR, 808 A.2d 1019 (Pa. Cmwlth. 2002). Thus, "unless the employer can show that the employee [is] not subject to his control and direction and [is] engaged in an independent trade, occupation or profession, then [the worker is an employee]." C.A. Wright Plumbing Co. v. U CBR, 293 A.2d 126, 129 (Pa. Cmwlth. 1972) (en banc).

We conclude that Employer did not overcome the strong presumption that Claimant was an employee. While we question the Board’s determination that Employer did not exercise control over Claimant, it is clear that the Board erred in its resolution of the second prong involving an independent trade or business.

The relevant word to our inquiry for this prong is the term "independent." Danielle Viktor, Ltd. v. Dep’t of Labor & Indus., 586 Pa. 196, 892 A.2d 781 (2006). In Viktor, our Supreme Court weighed several factors in determining whether the particular claimants’ businesses, limousine driving, operated independently, including:

(1) the [workers’] ability to perform services for more than one entity, including competitors, with no adverse consequences; (2) the operation of [the workers’] businesses and [the workers’] ability to perform work did not depend on the existence of any one of the [potential employers]; and (3) the fact that [the workers] bring all necessary perquisites of providing [services] to [the employers], even though they do not own [their own tools or supplies] or bear all of the financial risk.

Id. at 229-230, 892 A.2d 801-802. As such, a worker can only be considered an independent contractor if he is in business for himself, and is not dependent on another for the continuance of employment. Id.

Here, the Board erred when it relied solely on the referee’s finding that Claimant was free to perform the same services he supplied to Employer for any other potential employer. Additionally, the Board’s consideration was limited to whether Claimant was free to compete with Employer under his contract, and not whether Claimant was actually capable of working for another enterprise. See Beacon Flag, 910 A.2d at 109 n. 11 (holding a non-compete agreement is not definitive to our determination, and "we are particularly loathe to hold … such an agreement [created] … an employer-employee relationship"). The “ability to work for more than one enterprise is an important factor in determining independent contractor status,” but it is not the only factor. Id. at 109. The Board erred in determining Claimant engaged in an independent business when its conclusion was supported by a single finding that Claimant was contractually free to work for another entity during his contract with Employer.

Additionally, Claimant did not advertise or solicit his services, as an independent business, to gain employment. It is particularly noteworthy that the parties here entered their own arrangement after Employer contacted Claimant’s past employer looking for workers. As a result, Employer hired Claimant to a full-time position lasting the duration of Employer’s then-current project, pending Claimant’s production of satisfactory work during that time. Additionally, for his services Employer paid Claimant an hourly wage rather than job-to-job or per assignment.

Thus, regardless of Claimant’s potential contractual freedom to compete with Employer, the Board’s other findings do not support the conclusion that Claimant was capable of performing engineering services as an independent enterprise for other employers. Additionally, Claimant had no experience as an independent contractor, and thus, did not have his own tools or facilities to operate independently from Employer. Lastly, Claimant’s testimony demonstrates that the nature of Claimant’s trade compelled him to seek work from only one employer, and he was dependent upon Employer for his continual employment. Therefore, Claimant was not engaged in an independent business, but rather was an employee.

Accordingly, we conclude the Board erred in finding Claimant was self-employed as an independent contractor under Sections 402(h) and 4(l)(2)(B) of the Law. Therefore, we reverse the Board’s order.

_________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

custody - statutory factors; reasons for partial custody order

J.R.M. v. J.E.A. - Superior Court - December 6, 2011



http://www.pacourts.us/OpPosting/Superior/out/a30019_11.pdf



The court remanded the trial court's order giving mother primary custody of 8-month old child and placing limitations on father's partial custody rights, because:



- the lower court failed to consider the factors listed in "23 Pa.C.S.A. § 5328(a), a newly enacted section of the child custody statute, which delineates factors the trial court must consider when awarding any form of custody. . . All of the factors listed in section 5328(a) are required to be considered by the trial court when entering a custody order. Id. As the trial court failed to properly consider the statutorily mandated factors in arriving at its custody determination, it erred as a matter of law. We are therefore compelled to vacate its order and remand the case for further findings of facts." (emphasis in original)



- it was improper to place restrictions on father's partial custody absent evidence that he was unfit or unable to care for the child. "An award of partial custody generally does not contain any restrictions. Fatemi v. Fatemi, 489 A.2d 798, 801 (Pa. Super. 1985). “A restriction will be imposed if the parties have agreed to a restriction or if the party requesting a restriction shows that without it, partial custody will have a detrimental impact on the child.” Id.; see also 23 Pa.C.S.A. § 5323(e) (“[I]f the court finds that there is an ongoing risk of harm to the child or an abused party and awards any form of custody to a party who committed the abuse or who has a household member who committed the abuse, the court shall include in the custody order safety conditions designed to protect the child or the abused party.”).. . . The trial court imposed restrictions on Father’s periods of partial custody without support in the record that the parties agreed to the restrictions or that the restrictions were necessary to protect Child from some detrimental impact or safety concern. Fatemi, 489 A.2d at 801; 23 Pa.C.S.A. § 5323(e). The imposition of such restrictions are therefore unreasonable in light of the evidence of record. Durning, 19 A.3d at 1128.

disability - remand - treating phys. opinion - ALJ consideration not sufficiently detailed

Bethea v. Astrue - ED Pa. - December 5, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1317P.pdf

The court affirmed the decision of the magistrate judge, who "properly observed that the ALJ’s evaluation of the medical evidence in this case was ‘not sufficiently detailed to allow for meaningful judicial review.’”

“[T]he medical judgment of a treating physician can be rejected only on the basis of contradictory medical evidence.” Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000) (internal quotation omitted); see also 20 C.F.R. §§ 404.1527(d)(2) (“If a treating source’s opinion on the issue of the nature and severity of an impairment is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case, it will receive controlling weight.”). In refusing to credit the testimony of a treating physician, the ALJ must base his decision on “objective medical evidence” and not “solely on his own amorphous impressions, gleaned from the record and from his evaluation of [plaintiff’s] credibility.” Morales, 225 F.3d at 318. The ALJ did not articulate any reasons for rejecting the treating source opinions in this case.

“While the ALJ was not required to review all evidence of record, and could choose to reject [the treating physicians] opinion[s], he was required to ‘explain the weight he has given to obviously probative exhibits.’” Jennings v. Astrue, No. 09-1642, 2009 WL 7387721, at *9 (E.D. Pa. Nov. 30, 2009), quoting Cotter, 642 F.2d at 705.

Here, the ALJ placed controlling weight on the assessment of the non-physician state agency disability claims adjudicator. “[T]he medical judgment of a treating physician can be rejected only on the basis of contradictory medical evidence.” Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988). In the absence of any explanation as to why he chose to reject the medical evidence that plaintiff’s treating physicians used to support their determinations, the ALJ may not rely on the opinion of a non-physician. C.f., Bordes, 235 Fed. App’x at 864 (holding that the ALJ’s finding that the claimant suffered from no severe back impairment was not supported by substantial evidence where the ALJ failed to explain the evidence he relied on in rejecting the treating physician’s diagnosis); Eary v. Halter, No. 00-2910, 2001 WL 695045, at *4 (E.D. Pa. June 18, 2001) (finding that the ALJ failed to fulfill his duty where he “failed to explain or support his determination with medical evidence in the record”).

In sum, the ALJ’s decision does not allow the court to “tell if significant probative evidence was not credited or simply ignored.” Bordes, 235 Fed. App’x at 864 (quotation omitted). I find that the ALJ’s reasons for not adopting as controlling the assessments of plaintiff’s treating physicians are not based on substantial evidence and will overrule defendant’s objections.

admin. law - body that did not hear case CAN decide facts w/o violating due process

Graff v. DPW - Cmwlth. Court - November 21, 2011 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/176CD11_11-21-11.pdf

Claimant contends that the Secretary lacked authority to alter the ALJ‟s factual finding that she was permanently disabled by her work injury. The Department counters that the Secretary is vested with final fact-finding authority, and, thus, error did not occur.

In Siemon’s Lakeview Manor Estate v. DPW, 703 A.2d 551, 553-554 (Pa. Cmwlth. 1997), the Secretary reversed the factual findings of the Bureau in holding that a nursing facility was not entitled to reimbursement of certain costs associated with nursing care services. The nursing facility appealed to this Court, claiming that the Secretary did not have authority to reverse the Bureau's factual findings.

In deciding this legal issue, we reviewed the applicable statutes and regulations. Section 206 of the Administrative Code of 1929, provides that the Secretary of Public Welfare shall "personally" or through a "duly authorized agent" carry out his duties as agency head. 71 P.S. § 66. The General Rules of Administrative Practice and Procedure, which govern hearings before state agencies, such as the Department, authorize the "agency head" to personally conduct hearings or to appoint a presiding officer to conduct hearings. 1 Pa. Code §§35.123, 35.185. Here, the legislature has expressly made "the Secretary" the "head" of the Department. 71 P.S. §66. Consistent with these principles, we held that even though the Secretary did not view the demeanor of witnesses, this did not preclude the Secretary from exercising final fact-finding authority.

Again, in A.O. v. Department of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003), we reiterated that the Secretary, as the agency head, is vested with fact-finding authority. We further explained as follows:

While a fact finder‟s observation of the demeanor of a witness has traditionally been viewed as an important factor in determining credibility, administrative adjudicators are permitted to determine the credibility of testimony from the reading of a transcript. Administrative agencies often use a system of adjudication where a hearing examiner or presiding officer takes evidence and the ultimate fact finder is a board or commission, which has the power to make findings of fact based solely on a review of the record. See, e.g., Kramer v. Department of Insurance, 654 A.2d 203 (Pa. Cmwlth. 1995) (presiding officer conducted an evidentiary hearing, but the adjudication was issued by the Insurance Commissioner); … An adjudicative method where the ultimate decision in a case is made by an administrative fact finder who did not hear the testimony does not deny a litigant due process of law.

Id. at 38, n.5 (emphasis added) (citation omitted).

More recently in Duvall v Department of Corrections, 926 A.2d 1220 (Pa. Cmwlth. 2007), we considered whether the Secretary of Corrections could reject a hearing examiner‟s factual findings made in a hearing to determine eligibility for Heart and Lung benefits. The Secretary found that the claimant had fully recovered and was able to return to work. The claimant appealed to this Court, arguing that the Secretary could not make credibility determinations contrary to those of the hearing examiner. We disagreed, explaining that the hearing examiner was merely the designee of the Secretary, who was "the ultimate finder of fact in the instant matter" and able to make different credibility determinations. Id. at 1225.

We reject Claimant's contention that it was impermissible for the Secretary to make new factual findings, including credibility determinations, that differed from those of the administrative law judge appointed to take evidence and make the record for the Secretary. The contrary principle has been well established in legislation, regulations and case law precedent.

_____________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

consumer - CPL - fraud v. deceptive; parol evidence rule - ED Pa. case

Schnell v. Bank of New York - ED Pa. - November 21, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1284P.pdf

This state consumer protection law case concerms Plaintiff's claim that accuses the banks of first deceiving her and then pressuring her into accepting a mortgage she and her late husband could not afford. The CPL’s catch-all provision bars “[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 Pa. C.S. § 201-2(4)(xxi).

A plaintiff may succeed under the catch-all provision by satisfying the elements of common law fraud or by otherwise alleging deceptive conduct. Hunt v. U.S. Tobacco Co., 538 F.3d 217,
219 (3d Cir. 2008).5 Plaintiff explicitly references the Defendant Banks’ “deceptive acts” and therefore does not need to prove all of the elements of common-law fraud or meet the particularity requirement of Federal Rule of Civil Procedure 9(b). Seldon v. Home Loan Servs., Inc., 647 F. Supp. 2d 451, 469-70 (E.D. Pa. 2009) (citations omitted). Yet even under the less stringent standard, “a plaintiff must allege facts showing a ‘deceptive act,’ that is ‘conduct that is likely to deceive a consumer acting reasonably under similar circumstances.”’ Id. at 470 (citations omitted). Defendant BNY had no role vis-à-vis the origination of the loan, and Plaintiff fails to demonstrate how BNY could have deceived her into accepting the refinancing when it did not become the assignee until after the closing.

Defendant BOA, on the other hand, played a role in the origination of the disputed refinancing loan (via its acquisition of Countrywide). But to bring a private cause of action under the UTPCPL, Schnell must show that she “justifiably relied on the defendant’s wrongful conduct.” Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438 (Pa. 2004). Plaintiff's claim, however, is based on representations allegedly made by BOA and its agents prior to the signing of the refinancing contract. [emphasis added] As a result of Pennsylvania’s parol evidence rule, Plaintiff cannot be said to have justifiably relied on any precontractual representations. Id. at 502 Although the mortgage refinancing loan did not contain an integration clause, Plaintiff admits in her Complaint that she was aware of the higher interest rate and still signed the ontract.

______________________

n. 5 Pennsylvania’s lower courts have split over whether or not the “deceptive conduct” prong has the same requirements or offers plaintiffs a lower standard. Seldon, 647 F. Supp. 2d at 468 (comparing Commonwealth v. Percudani, 825 A.2d 743, 746 (Pa. Commw. Ct. 2003) with Booze v. Allstate Ins. Co., 750 A.2d 877, 880 (Pa. Super. Ct. 2000)). Although the Pennsylvania Supreme Court has not yet spoken on the issue, courts in this district have held that the 1996 amendment to the catch-all provision of the UTPCPL added a prohibition on deceptive
conduct that permits plaintiffs to proceed without satisfying all of the elements of common-law fraud. See, e.g., Fingles v. Continental Cas. Co., No. 08-5943, 2010 WL 1718289, at *7 (E.D. Pa. Apr. 28, 2010); Seldon, 647 F. Supp. 2d at 468-71; Flores v. Shapiro & Kreisman, 246 F. Supp. 2d 427, 432 (E.D. Pa. 2002). I adopt their reasoning.

consumer - contract under seal - statute of limitations

Osprey Portfolio, Inc. v. Izett - Superior Court - November 21, 2011

http://www.pacourts.us/OpPosting/Superior/out/a21030_11.pdf

Guaranty under seal for related promissory note was an instrument under seal subject to 20-year statute of limitations (SOL) under 42 Pa. C.S. 5529(b)(1) rather than normal 4-year contract SOL, 42 Pa. C.S. 5525.

The guaranty, which had the pre-printed word "SEAL" next to the signature line, was "undisputedly signed under seal," * and was held to be an “'instrument' because it defines the rights, duties, entitlements, and liabilities of the parties involved, and therefore, the applicable statute of limitations is the twenty-year statute set forth in 42 Pa.C.S.A. § 5529(b)(1)."

* In re Estate of Snyder, 13 A.3d at 513 (holding that the twenty-year statute of limitations applied to the action and stating that “this Court has held, in accord with many cases written by our Supreme Court, that when a party signs an instrument which contains a pre-printed word ‘SEAL,’ that party has presumptively signed an instrument under seal.” (citation and brackets omitted)); see also Robert Mallery Lumber Corp. v. B. & F. Assocs., Inc., 440 A.2d 579, 582 (Pa. Super. 1982) (referring to a guaranty as an “instrument”); accord Marcucci v. H & L Developers, Inc., 2009 U.S. Dist. LEXIS 121769 at *21 (E.D. Pa. 2009)

social security disability - treating physician - clinical/home setting v. work setting

Callahan v. Astrue - ED Pa. - November 7, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1256P.pdf

Over defendant's objection, the court affirmed the Magistrate Judge's Report and Recommendation recommending that plaintiff’s Request for Review be granted and the case be remanded to defendant for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g).

The disputes before the Court primarily concern plaintiff’s mental impairments, including her history of alcohol and drug dependency, bipolar disorder, and severe depression.

Evidence that a claimant is doing well in treatment does not contradict a treating physician’s opinion that she is unable to work. “[T]he work environment is completely different from home or a mental health clinic. [A treating physician’s] observation[] that [a patient] is ‘stable and well controlled with medication’ during treatment does not support the medical conclusion that [the patient] can return to work.” Morales, 225 F.3d at 319. For that reason, a treating physician’s opinion that an individual cannot work may “not be supplanted by an inference gleaned from treatment records reporting on [plaintiff] in an environment absent of the stresses that accompany the work setting.” Id.; see also Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 356 (3d Cir. 2008) (reiterating “the distinction between a doctor’s notes for purposes of treatment and that doctor’s ultimate opinion on the claimant’s ability to work”); Nguyen v. Astrue, No. 06-3443, 2008 WL 200175, at *3 (E.D. Pa. Jan. 23, 2008) (holding that when an ALJ rejected a treating psychiatrist’s opinion based on clinical notes that the plaintiff was doing well on medication, the ALJ improperly “substitute[d] his clinical judgment for that of the treating psychiatrist”). The ALJ thus erred in rejecting the doctor's inability-to-work opinion on that basis.

Evidence that plaintiff sometimes performed domestic tasks such as caring for her children and doing chores does not contradict a doctor's opinion that she could not work. Defendant’s Objections omit plaintiff’s repeated statement that the domestic tasks occur only “on a good day[;] a lot of the time I’m unable to do these things so my friend or daughter drop my son off at daycare and I never get up.” This explanation by plaintiff is important. Plaintiff concedes that she might be able to sustain a full-time job for “a week or two” or even a month. However, “not too many bosses are willing to put up with [her]” when her bipolar disorder hits a “down stage.” The ALJ committed legal error when he refused to consider the doctor's opinion.

custody - relocation - consideration of all statutory factors

ED v. MP - Superior Court - November 9, 2011

http://www.pacourts.us/OpPosting/Superior/out/s54005_11.pdf

Which statute applies? - Because Father initiated his relocation request after the effective date of the new Act and Mother’s request for modification of the custody order followed, the provisions of the new Child Custody Act apply here.

Duty of court to consider statutory factors - The court agreed that the trial court failed to consider adequately the ten factors for relocation in section 5337(h), which mandates that the trial court shall consider all of the factors listed therein, giving weighted consideration to those factors affecting the safety of the child. 23 Pa.C.S.A. § 5337(h).

In this case, it cannot be ascertained from the record on appeal whether the trial court considered all of the section 5337(h) factors in reaching its decision. To the extent that the trial court did consider these factors, it did so in a cursory manner without references to the record or explanations for its conclusions.

UC - vol. quit - health reasons - able/available

Tracy v. UCBR - Cmwlth. Court - November 10, 2011 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/408CD11_11-10-11.pdf

To be eligible for benefits under Section 402(b) of the Law, a claimant must prove that the separation from employment was for a necessitous and compelling reason. Diehl v. UCBR, 4 A.3d 816 (Pa. Cmwlth. 2010), appeal granted, ___ Pa. ___, 20 A.3d 1192 (2011).

To meet that burden, the claimant must demonstrate circumstances which placed a real and substantial pressure upon him or her to terminate employment that would compel a reasonable person to act in the same manner. Smithley v. UCBR, 8 A.3d 1027 (Pa. Cmwlth. 2010). Whether the claimant's termination of employment was for a necessitous and compelling reason is a question of law subject to this Court's plenary review. W. & S. Life Ins. Co. v. UCBR, 913 A.2d 331 (Pa. Cmwlth. 2006).

Health problems, including an emotional or psychological disorder, can constitute a necessitous and compelling reason to terminate employment. Genetin v. UCBR, 499 Pa. 125, 451 A.2d 1353 (1982); Beattie v. UCBR, 500 A.2d 496 (Pa. Cmwlth. 1985). To establish a necessitous and compelling health reason for leaving employment, the claimant must: (1) present competent evidence of an adequate health reason justifying termination of employment; (2) have informed the employer of the health problems; and (3) be able and available to perform work which is not inimical to his or her health, if a reasonable accommodation is made by the employer. Ridley Sch. Dist. v. UCBR, 637 A.2d 749 (Pa. Cmwlth. 1994). The claimant, who has failed to meet any of these requirements, is ineligible for benefits. Ruckstuhl v. UCBR, 426 A.2d 719 (Pa. Cmwlth. 1981).

A necessitous and compelling health reason can be established by any competent medical or non-medical evidence. Cent. Data Ctr. v. UCBR, 458 A.2d 335 (Pa. Cmwlth. 1983). Claimant presented the evidence that she suffered from depression and anxiety. Claimant admitted, however, that she did not "tell …Employer that [she was] leaving because of health reasons." She was also required to demonstrate that she was able to work and available for suitable work, because the Law is not intended to provide health and disability benefits for ill employees. Section 401(d)(1) of the Law, 43 P.S. § 801(d)(1); Genetin. She was on a medical leave and was receiving disability benefits when she left her employment. Her treating physician did not release her to return to work because her condition prevented her from working in any kind of position with or without restrictions. Hence, Claimant failed to establish that she was able to work and available for suitable work.
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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

wages - FLSA - overtime - condit. class certified

Titchenell v. Apria Health Care - ED Pa. - Nov. 8, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1253P.pdf

Plaintiff Connie Titchenell filed this action against her former employer, defendant Apria Healthcare, Inc. (“Apria”), alleging that defendant violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.

She contends that, as a Customer Service Specialist, she worked ten to fifteen hours per week “off the clock” without compensation to meet defendant’s productivity demands. According to plaintiff, defendant had a company-wide policy or pattern of requiring Customer Service Specialists to work in excess of forty hours per week without overtime pay.

Presently before the Court is Plaintiff’s Amended Motion for Conditional Certification of Collective Class and to Facilitate Notice Pursuant to 29 U.S.C. § 216(b) For the reasons stated below, the Court grants plaintiff’s motion.

civil procedure - default judgments - opening

Kelly v. Siuma - Pa. Super. - November 3, 2011

http://www.pacourts.us/OpPosting/Superior/out/a31006_11.pdf

A petition to open a default judgment is an appeal to the equitable powers of the court. Absent an error of law or a clear, manifest abuse of discretion, it will not be disturbed on appeal.

An abuse of discretion occurs when a trial court, in reaching its conclusions, overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will. US Bank N.A. v. Mallory, 982 A.2d 986, 994 (Pa.Super. 2009)

Generally speaking, a default judgment may be opened if the moving party has (1) promptly filed a petition to open the default judgment, (2) provided a reasonable excuse or explanation for failing to file a responsive pleading, and (3) pleaded a meritorious defense to the allegations contained in the complaint. McFarland v. Whitham, 518 Pa. 496, 544 A.2d 929
(1988); Seeger v. First Union National Bank, 836 A.2d 163 (Pa.Super. 2003).

Where a petition to open is filed within ten days of the entry of judgment and is accompanied by a proposed answer offering a meritorious defense, the court shall open the judgment. See Estate of Considine v. Wachovia Bank, 966 A.2d 1148 (Pa.Super. 2009).

The timeliness of a petition to open a judgment is measured from the date that notice of the entry of the default judgment is received. The law does not establish a specific time period within which a petition to open a judgment must be filed to qualify as timely. Instead, the court must consider the length of time between discovery of the entry of the default judgment and the reason for delay. In cases where the appellate courts have found a “prompt” and timely filing of the petition to open a default judgment, the period of delay has normally been less than one month. See Duckson v. Wee Wheelers, Inc., 423 Pa.Super. 251, 620 A.2d 1206 (Pa.Super. 1993) (one day is timely); Alba v. Urology Associates of Kingston, 409 Pa.Super. 406, 598 A.2d 57 (Pa.Super. 1991) (fourteen days is timely); Fink v. General Accident Ins. Co., 406 Pa.Super. 294, 594 A.2d 345 (Pa.Super. 1991) (period of five days is timely). US Bank N.A., 982 A.2d at 995 (quotation omitted) (finding eighty-two day delay was not timely). See Myers v. Wells Fargo Bank, N.A., 986 A.2d 171 (Pa.Super. 2009) (indicating delay of fourteen days in filing petition to open was timely); Pappas v. Stefan, 304 A.2d 143 (Pa.Super. 1973) (fifty-five day delay was not prompt).

‘[W]hether an excuse is legitimate is not easily answered and depends upon the specific circumstances of the case. The appellate courts have usually addressed the question of legitimate excuse in the context of an excuse for failure to respond to the original complaint in a timely fashion.’ US Bank N.A., 982 A.2d at 995.

UC - vol. quit - change in health care plan

Elliot Co. v. UCBR - Cmwlth. Court - October 13, 2011 (en banc, 5-2)

http://www.pacourts.us/OpPosting/Cwealth/out/1783CD10_10-13-11.pdf

The Court held that the claimant had not met his burden of proving that the changes in his health care plan were so substantial to him that he had good cause to voluntarily quit his employment.

The 2-person dissent said that the majority had improperly subtituted its own findings of fact and its own judgment for those of the UCBR.

UC - failure to appear at hearing - good cause

Beaumont Retirement Center v. UCBR - Cmwlth. Court - October 17, 2011- unreported memorandum opinion.

http://www.pacourts.us/OpPosting/Cwealth/out/2627CD10_10-17-11.pdf

The employer's failed to appear at the referee hearing, and the referee and Board granted benefits. The court rejected the employer appeal, because no good cause for failure to appear was shown.

"Where a party fails to appear at a scheduled hearing, the Board may remand the case for an additional hearing only where the Board has made an independent determination that the reasons set forth by the party for its failure to appear constitute proper cause." Sanders v. UCBR, 524 A.2d 1031, 1032 (Pa. Cmwlth. 1987) (emphasis added); see also 34 Pa. Code §101.24.

Under Rule 101.24, "[i]f a party fails to appear at a scheduled hearing, that party must show good cause for that failure before the Board will delay the final disposition of the case by remanding for additional hearings." McNeill v. UCBR, 510 Pa. 574, 579, 511 A.2d 167, 169 (1986).

If the evidence in the record supports that a notice from the Board was mailed to a party’s last known address and not returned as undeliverable by the Post Office, it is presumed that the notice was received. See Gaskins v. UCBR, 429 A.2d 138 (Pa. Cmwlth. 1981) (affirming the Board’s denial of an untimely appeal where notice of the referee’s decision was mailed, was not returned by the postal authorities, and contained the information necessary to put the claimant on notice of the referee’s decision). This presumption is rebuttable. Id.

However, the mere assertion that the notice was not received, without factual support of any kind, is insufficient to rebut this presumption and does not constitute “good cause” for not appearing at a hearing. Otherwise, there would be no incentive to appear at the initial hearing. See McNeill. See also Wheeler v. Red Rose Transit Authority, 890 A.2d 1228, 1231 (Pa. Cmwlth 2006) (“testimony alone” that a notice from the court was not received will not rebut the presumption under Pa. R.C.P. No. 440(b) that notice was received); Kulick v. Commonwealth, 666 A.2d 1148 (Pa. Cmwlth. 1995) (testimony that a third party interfered with receipt of mail does not satisfy the burden of proving mail was not received); Sheehan v. WCAB, 600 A.2d 633 (Pa. Cmwlth. 1991) (testimony denying receipt is insufficient, in and of itself, to rebut the presumption that a properly-mailed item was received); Commonwealth v. Warenczuk, 636 A.2d 1225, 1226 (Pa. Cmwlth. 1991) (presumption that notice of a license suspension was received is not rebutted by “mere denial of receipt”).

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

federal courts - removal - 30-day limit

DeLalla v. Hanover Insurance - Third Circuit - October 13, 2011

http://www.ca3.uscourts.gov/opinarch/103933p.pdf

In order to remove a lawsuit filed in state court to a federal district court under the federal removal statute, 28 U.S.C. §§ 1441, 1446, a defendant must file a notice of removal within thirty days of the date on which the plaintiff serves the defendant.

Courts have split in interpreting this thirty day limitation: the Fourth and Fifth Circuits have held that the thirty day period ends thirty days after the first defendant is served (the first-served rule), and the Sixth, Eighth, Ninth, and Eleventh Circuits have held that each defendant has a thirty day period to file a notice of removal that ends thirty days after that defendant is served (the later-served rule).

The Third Circuit decided that the later-served rule represents "the most faithful and equitable reading of the removal statute" and affirmed the District Court order.

Default judgment stricken - faulty notice of intent to take default

City of Philadelphia v. Lane Advertising, Inc. - Cmwlth. Court - October 4, 2011 (en banc) (5-2)



http://www.pacourts.us/OpPosting/Cwealth/out/1449CD10_10-4-11.pdf



Default judgment stricken, because the notice of intention to take a default judgment did not comply with the relevant rules of civil procedure. A default judgment entered where there has not been strict compliance with the rules of civil procedure is void." Franklin Interiors, Inc. v. Browns Lane, Inc., 323 A.2d 226, 228 (Pa. Super. 1974).



Default judgments are generally not favored. . . In considering a motion to strike a default judgment the court is limited to the facts of record at the time the judgment was entered. . . .A petition to strike is not a chance to review the merits of the allegations of a complaint. Rather, it is aimed at defects that affect the validity of the judgment and that entitle the petitioner, as a matter of law, to relief.. . .



"A record that reflects a failure to comply with Rule 237.1 [of the Pennsylvania Rules of Civil Procedure] is facially defective and cannot support a default judgment." . . . Generally, if the record affirmatively shows a failure to comply with Pa. R.C.P. 237.1, the record is defective and will not support the entry of a default judgment.. . . Rule 237.1(a)(2) requires the plaintiff to provide notice to the defendant of its intent to seek a default judgment. Rule 237.5 requires that the notice "substantially" be in the form established by the Pennsylvania Supreme Court and set forth in the rule. Thus, if the notice provided is not "substantially" in the form adopted by the Pennsylvania Supreme Court, then the plaintiff has not complied with Rule 237.1 and the default judgment cannot stand.

Rule 237.5 requires that the 10-Day Notice "be substantially in the following form":

YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. Pa. R.C.P. No. 237.5 (emphasis added).

The Plaintiff's 10-Day Notice to Defendant provided:

You are in default because you have failed to take action required of you in this case. Unless you act within ten (10) days from the date of this notice, a Judgment may be entered against you without a hearing and you may lose your property or other important rights. . . . (emphasis added).)

The Plaintiff's notice is not identical to the Rule 237.5 form. Rather than instructing Defendant specifically of what he failed to do that led the Plaintiff to issue the notice, as the Rule 237.5 form provides, the Plaintiff's's notice only informed Defendant that he was in default because he "failed to take action required of [him] in this case."

In light of this apparent inconsistency on the face of the record, our analysis must proceed as follows: (a) did the Plaintiff's notice comply with Rule 237.5 because, though not identical, it was "substantially" in the form required by the rule, and, if not, (b) is it a fatal defect such that the default judgment must be set aside.

Held,

a) The notice was not "substantially in the form" required by the rules of procedure - Under the prior version of Rule 237.5, the notice only had to inform defendant that it he was in default, notify the defendant that the plaintiff intends to seek a default judgment if action is not taken within ten (10) days, and include some indicia of notice to legal counsel for the defendant, if represented. But with the 2004 amendment, Rule 237.5 now imposes an additional notice requirement on a plaintiff who wishes to obtain a judgment by default—i.e., the plaintiff must now include in the 10-Day Notice specific reasons why the defendant is in default. It is this additional notice that is absent in any form from the Plaintiff's's 10-Day Notice. Without this additional notice component, required by the Pennsylvania Rules of Civil Procedure for over five (5) years before the Plaintiff filed its complaint, we cannot consider the City’s notice to be "substantially" in the form required by Rule 237.5. The City, therefore, failed to comply with Rule 237.5 and, consequently, Rule 237.1(a)(2) of the Pennsylvania Rules of Civil Procedure.

b) The defect was fatal to the case, in which the judgment must be stricken - A default judgment entered where there has not been strict compliance with the rules of civil procedure is void." Franklin Interiors, Inc. v. Browns Lane, Inc., 323 A.2d 226, 228 (Pa. Super. 1974). Rules allowing a party to obtain a judgment by filing a praecipe, whether for non pros or by default for failure to plead, must be strictly construed. The 10-Day Notice required by Rule 237.1 in this case was defective on its face, as it was not "substantially" in the form required by Rule 237.5. Rather, the notice was based on the Old Form Notice, which the Pennsylvania Supreme Court amended to include the very language that the City omitted from its notice in this case—language that the Supreme Court added for a specific reason. Erie Ins. Co. v. Bullard, 839 A.2d 383, 387 (Pa. Super. 2003). Failure to include this key language was, therefore, a fatal defect. Regardless of the level of actual notice Defendant had, he did not have the type and extent of notice that the Pennsylvania Supreme Court required the City to provide before obtaining a default judgment.

UC - willful misconduct - single incident must be "sufficiently serious"

Liebert v. UCBR - Cmwlth Court - 9/26/11- unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1438CD10_9-26-11.pdf

A single failure to record a nine-minute absence on a timesheet does not constitute willful misconduct under the principles established in Williams v. UCBR, 380 A.2d 932 (Pa. Cmwlth. 1977).

Cases in which a single incident was held to constitute willful misconduct indicate that this determination has been made only where the single incident was "sufficiently serious" to justify that finding, such as unauthorized deliveries and misrepresentations; diversion of company property from a designated destination to a private garage; improperly selling company property; concealing the identity of a prospective customer in a bad faith attempt to extract additional remuneration; and assaulting a co-worker. Id. at 935.

By contrast, single incidents of minor infractions, such as missing a meeting, not remaining indoors while on home confinement, and reclining in the company truck during work time, are not "sufficiently serious" to constitute willful misconduct. Id.

It is true that falsifying a timesheet, for any duration, constitutes willful misconduct, Temple University of the Commonwealth System of Higher Education v. UCBR, 565 Pa. 178, 772 A.2d 416 (2001), the Pennsylvania Supreme Court concluded that it was willful misconduct to falsify employer‟s records in order to receive additional pay, even where it was done with a supervisor‟s permission.

However, in this case, there was no sufficient proof of such conduct. Employer's evidence consists solely of testimony was based upon phone records that were never introduced into evidence. Although Claimant did not raise a hearsay objection, under the legal residuum rule, hearsay evidence admitted without objection will be given its natural probative effect only if it is corroborated by any competent evidence in the record.‟" Greer v. UCBR, 4 A.3d 733, 737 n.7 (Pa. Cmwlth. 2010) (quoting Walker v. UCBR, 367 A.2d 366, 370 (Pa. Cmwlth. 1976)). Here, there is no such corroboration in the record. Claimant did not admit to any wrongdoing and the employer witness did not testify from her own observation and knowledge.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

standing

In re Miller - Pa. Supreme Court - September 28, 2011

http://www.pacourts.us/OpPosting/Supreme/out/J-75-2010mo.pdf

[T]to obtain judicial resolution of a dispute or challenge, an individual must have standing. An individual has standing only if he or she is aggrieved, i.e., adversely affected or negatively impacted in a real and direct fashion, by the proceedings at issue. Johnson v. American Standard, 8 A.3d 318, 329, 332-33 (Pa. 2010); Pittsburgh Palisades Park, LLC v. Commonwealth of Pennsylvania, 888 A.2d 655, 659-60 (Pa. 2005).

To demonstrate that he or she is aggrieved, an individual must establish "a substantial, direct and immediate interest in the proceedings.” Johnson, supra at 333. An individual’s interest in the proceedings is substantial if it “surpasses the common interest of all citizens in procuring obedience to the law.” Pittsburgh Palisades Park, supra at 660 (citation omitted). An individual’s interest is direct “if there is a causal connection between the asserted violation and the harm complained of,” and the interest is immediate “if that causal connection is not remote or speculative." Johnson, supra at 329 (citation omitted).

disability - hypothetical question - all limitations

Lucero v. Astrue - ED Pa. - September 26, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1088P.pdf

For the ALJ’s decision to be supported by substantial evidence, the hypothetical question to the vocational expert must “accurately convey all of [the claimant’s] impairments, and the
limitations they cause.”36 In Ramirez v. Barnhart, the Third Circuit held that including a requirement that a job be limited to one- to two-step tasks did not adequately encompass a
finding that the claimant “often” had deficiencies in concentration, persistence, or pace.37

As the Commissioner correctly notes, the functional scale used to assess concentration, persistence, or pace was changed after the ALJ’s decision in Ramirez. Both the old and new scales comprise five levels of limitation, with “often” at the third level on the old scale, and “moderate” at the third level on the revised scale.38 Therefore, some courts have found “often” and “moderate” to represent equivalent limitations, which must be included in the hypothetical question with specificity.39

Although the hypothetical question here did not refer specifically to Plaintiff’s moderate limitations in concentration, persistence, and pace, it did include limitations to simple repetitive
tasks, with only occasional changes in work setting and occasional contact with the public and coworkers; some courts have found such limitations sufficiently descriptive.40 However, even if
these limitations could be said to encompass moderate limitations in concentration, persistence, and pace in some cases, here the hypothetical question failed to incorporate the ALJ’s finding that Plaintiff had exhibited one or two episodes of decompensation, a term which “refers to exacerbations or temporary increases in symptoms or signs, accompanied by a loss of adaptive functioning.”41 Because the Court finds that the ALJ’s hypothetical question did not adequately encompass all of Plaintiff’s limitations, the case will be remanded to the Commissioner.42

----------------

36 Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir. 2004).

37 Id. at 552.

38 Strouse v. Astrue, No. 07-4514, 2010 WL 1047726, at *6 (E.D. Pa. Mar. 19, 2010), citing Colon v. Barnhart, 424 F. Supp. 2d 805, 811 (E.D. Pa. 2006); Dynko v. Barnhart, No. 03-3222, 2004 WL 2612260 (E.D. Pa. Nov. 16, 2004). However, in an unpublished decision, the Third Circuit distinguished the holding in Ramirez in part by reference to the “often” limitation in that case as opposed to the “moderate” limitation before it. McDonald v. Astrue, 293 F. App’x 941, 946 n.10 (3d Cir.2008) (not precedential). In McDonald, however, the Court found that
there was no support in the record for the claimant’s complaints, but instead, evidence to the contrary. Gayton v. Astrue, No. 08-3667, 2009 WL 1456608, *3 (E.D. Pa. May 19, 2009).

39 Strouse, 2010 WL 1047726 at * 6; Weinsteiger v. Astrue, No. 09-1769, 2010 WL 331903, *10 (E.D. Pa. Jan. 25, 2010); Bunch v. Astrue, No. 08-cv-487, 2008 WL 5055741, * 3 (E.D. Pa. Nov. 26, 2008) (citing cases).

40See Douglas v. Astrue, 2011 WL 482501, at *5 (E.D. Pa. Feb. 4, 2011) (holding that hypothetical limiting the claimant to unskilled work adequately accounted for moderate limitations in concentration, persistence, and pace); Reid v. Astrue, No. 08-300, 2009 WL 2710243,at *7 (E.D. Pa. Aug. 28, 2009) (holding that “because the record does not suggest that Plaintiff’s moderate difficulties in ‘concentration, persistence, and pace” would limit Plaintiff’s ability to perform ‘simple, repetitive tasks,’ there was valid justification for the ALJ’s omission of more
specific references in the hypothetical”).

41 R. 58.

42 Cf. Russo v. Astrue, 421 F. App’x 184, at *7 (3d Cir. 2011) (not precedential) (holding that a hypothetical question that included the limitation that the person “would not have a quota to fulfill” accounted for moderate difficulties with concentration, persistence, pace, and decompensation episodes).