immigration - pre-emption - federal immigration law does not pre-empt state law relating to employment of "unauthorized aliens" -

http://www.supremecourt.gov/opinions/10pdf/09-115.pdf (69 pp.)

SUPREME COURT OF THE UNITED STATES
Syllabus
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA ET AL. v. WHITING ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 09–115. Argued December 8, 2010—Decided May 26, 2011

The Immigration Reform and Control Act (IRCA) makes it “unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee,for employment in the United States an alien knowing the alien is an unauthorized alien.” . . . Employers that violate that prohibition may be subjected to federal civil and criminal sanctions. IRCA also restricts the ability of States to combat em-ployment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or re-cruit or refer for a fee for employment, unauthorized aliens.”. . . .IRCA also requires employers to take steps to verify an employee’seligibility for employment. In an attempt to improve that verification process in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Congress created E-Verify—an internet-based system employers can use to check the work authorization status of employees.

Against this statutory background, several States have recently enacted laws attempting to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws.” Arizona is one of them. The Legal Arizona WorkersAct provides that the licenses of state employers that knowingly orintentionally employ unauthorized aliens may be, and in certain cir-cumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify. The Chamber of Commerce of the United States and various busi-ness and civil rights organizations (collectively Chamber) filed this federal preenforcement suit against those charged with administering the Arizona law, arguing that the state law’s license suspensionand revocation provisions were both expressly and impliedly pre-empted by federal immigration law, and that the mandatory use of E-Verify was impliedly preempted. The District Court found that the plain language of IRCA’s preemption clause did not invalidate the Arizona law because the law did no more than impose licensing conditions on businesses operating within the State. Nor was the state law preempted with respect to E-Verify, the court concluded, because although Congress had made the program voluntary at the nationallevel, it had expressed no intent to prevent States from mandatingparticipation. The Ninth Circuit affirmed.

Held: The judgment is affirmed. 558 F. 3d 856, affirmed. THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I and II–A, concluding that Arizona’s licensing law is not expressly preempted.Arizona’s licensing law falls well within the confines of the author-ity Congress chose to leave to the States and therefore is not ex-pressly preempted. While IRCA prohibits States from imposing “civilor criminal sanctions” on those who employ unauthorized aliens, it preserves state authority to impose sanctions “through licensing and similar laws.” . . . That is what the Arizona law does—it instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens. The definition of “license” contained in the Arizona statute largely parrots the definition of “license” that Congress codified in the Administrative Procedure Act (APA).The state statute also includes within its definition of “license” documents such as articles of incorporation, certificates of partnership, and grants of authority to foreign companies to transact business in the State. . . .each of which has clear counterparts in APA and dictionary definitions of the word “license.” And even if a law regulating articles of incorporation and the like is not itself a “licensing law,” it is at the very least “similar” to one, and therefore comfortably within the savings clause.

The Chamber’s argument that the Arizona law is not a “licensing” law because it operates only to suspend and revoke licenses rather than to grant them is without basis in law, fact, or logic. The Chamber contends that the savings clause should apply only tocertain types of licenses or only to license revocation following an IRCA adjudication because Congress, when enacting IRCA, eliminated unauthorized worker prohibitions and associated adjudication procedures in another federal statute. But no such limits are even remotely discernible in the statutory text. The Chamber’s reliance on IRCA’s legislative history to bolster its textual and structural arguments is unavailing given the Court’sconclusion that Arizona’s law falls within the plain text of the savings clause. Pp. 9–15.

THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO, concluded in Part II–B:
The Arizona licensing law is not impliedly preempted by federal law. At its broadest, the Chamber’s argument is that Congress intended the federal system to be exclusive. But Arizona’s procedures simply implement the sanctions that Congress expressly allowed theStates to pursue through licensing laws. Given that Congress spe-cifically preserved such authority for the States, it stands to reasonthat Congress did not intend to prevent the States from using appro-priate tools to exercise that authority.

And here Arizona’s law closely tracks IRCA’s provisions in all material respects. For example, it adopts the federal definition of who qualifies as an “unauthorized alien,” . . . ; provides that state investiga-tors must verify the work authorization of an allegedly unauthorized alien with the Federal Government, making no independent determination of the matter, . . . and requires a state court to “consider only the federal government’s determination,” . . . .

The Chamber’s more general contention that the Arizona law ispreempted because it upsets the balance that Congress sought to strike in IRCA also fails. The cases on which the Chamber relies in making this argument all involve uniquely federal areas of interest. . . Regulating in-state businesses through licensing laws is not such an area. And those cases all concern state actions that directly interfered with the operation of a federal program. . . .There is no similar interference here.

The Chamber asserts that employers will err on the side of discrimination rather than risk the “ ‘business death penalty’ ” by “hiring unauthorized workers.” That is not the choice. License termination is not an available sanction for merely hiring unauthorizedworkers, but is triggered only by far more egregious violations. And because the Arizona law covers only knowing or intentional violations, an employer acting in good faith need not fear the law’s sanctions. Moreover, federal and state antidiscrimination laws protect against employment discrimination and provide employers with a strong incentive not to discriminate. Employers also enjoy safe harbors from liability when using E-Verify as required by the Arizonalaw. The most rational path for employers is to obey both the law barring the employment of unauthorized aliens and the law prohibiting discrimination. There is no reason to suppose that Arizona employers will choose not to do so. Pp. 15–22.

THE CHIEF JUSTICE delivered the opinion of the Court with respect to Part III–A, concluding that Arizona’s E-Verify mandate is not impliedly preempted.
Arizona’s requirement that employers use E-Verify is not impliedlypreempted. The IIRIRA provision setting up E-Verify contains no language circumscribing state action. It does, however, constrain federal action: absent a prior violation of federal law, “the Secretaryof Homeland Security may not require any person or . . . entity” outside the Federal Government “to participate in” E-Verify. IIRIRA, §402(a), (e). The fact that the Federal Government may require the use of E-Verify in only limited circumstances says nothing aboutwhat the States may do. The Government recently argued just thatin another case and approvingly referenced Arizona’s law as an ex-ample of a permissible use of E-Verify when doing so.

Moreover, Arizona’s use of E-Verify does not conflict with the federal scheme. The state law requires no more than that an employer, after hiring an employee, “verify the employment eligibility of the employee” through E-Verify. . . . And the consequences of not using E-Verify are the same under the state and federal law—an employer forfeits an otherwise available rebuttable presumption of compliance with the law. Pp. 23–24.

THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO, concluded in Part III–B:
Arizona’s requirement that employers use E-Verify in no way obstructs achieving the aims of the federal program. In fact, the Gov-ernment has consistently expanded and encouraged the use of E-Verify, and Congress has directed that E-Verify be made available inall 50 States. And the Government has expressly rejected the Cham-ber’s claim that the Arizona law, and those like it, will overload the federal system. Pp. 24–25.

ROBERTS, C. J., delivered the opinion of the Court, except as to PartsII–B and III–B. SCALIA, KENNEDY, and ALITO, JJ., joined that opinion in full, and THOMAS, J., joined as to Parts I, II–A, and III–A and con-curred in the judgment. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion. KAGAN, J., took no part in the consideration or decision of the case.

UC- appeal - Board reversal of referee overturned - Treon, et al

Dommes v. UCBR - May 24, 2011 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1590CD10_5-24-11.pdf

Claimant quit his job because of work-related stress and anxiety caused by harrassment by fellow employees. Claimant presented letters from a psychologist and a physician at the referee hearing documenting his claims. The letter from a licensed psychologist recommended that Claimant not return to work for Employer, stating that, if he did, it “would be done at the jeopardy of his mental and physical health.” The letter Claimant’s physician also recommended that Claimant “cease work under the current conditions in order to aid in his medical and psychological care."

Based on this evidence, the referee found that:

(1) “[C]laimant became upset and began manifesting physical signs of stress and anxiety, such as nausea and sweating, and consulted with his physician,”; (2) “[C]aimant’s physician advised the claimant to quit his employment with [Employer],” and (3) “[n]o other alternatives were available to [Claimant] prior to quitting,” The referee stated as follows: Based upon the testimony provided and the competent evidence contained in the record, the referee finds and concludes that the claimant had good cause for quitting due to the stress and anxiety which was manifesting itself through nausea and sweating. Additionally, the referee resolves issues of credibility in favor of the claimant.

Employer appealed to the UCBR, which reversed. In doing so, the UCBR “discredit[ed] [Claimant’s] testimony, as well as the opinion of his doctor, that [Claimant] was compelled to quit his employment due to health issues.” The UCBR gave no reason for its disregard of the referee’s contrary finding.

Claimant argues that the UCBR erred in disregarding the referee’s finding that Claimant needed to end his employment for health reasons without stating its reasons for doing so. We agree.

Although the weight to be given the evidence and the credibility to be afforded the witnesses are within the province of the UCBR as the fact-finder, the UCBR is not free to ignore the overwhelming evidence in favor of a contrary result not supported by the evidence. Borello v. UCBR, 490 Pa. 607, 618-19, 417 A.2d 205, 211 (1980). “The [UCBR] may not . . .simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its reasons for doing so.” Treon v. UCBR, 499 Pa. 455, 461, 453 A.2d 960, 962 (1982). Where the UCBR does so, the remedy is to reinstate the finding of the referee. Id. at 461, 453 A.2d at 962-63. Here, the UCBR disregarded the referee’s finding that Claimant needed to quit his job with Employer for health reasons. The finding is supported by consistent and competent evidence, uncontradicted in the record, and the UCBR offered no reason for its disregard of that finding. Thus, under Treon, the referee’s finding is reinstated.

Claimant next argues that the UCBR erred in concluding that he lacked a necessitous and compelling reason to quit. We agree. Health problems may amount to a compelling reason to quit when the claimant offers competent testimony that adequate health reasons existed to justify the voluntary termination, that the claimant informed the employer of the health problems, and that the claimant remained available to work if employer made reasonable accommodations. Genetin v. UCBR, 499 Pa. 125, 130-131, 451 A.2d 1353, 1356 (1982). Once the employee communicates his health problems to the employer, he can do no more. Id. at 131, 451 A.2d at 1356. The employer is responsible for contacting the employee and offering him suitable work; to insist that the employee initiate a quest for an alternative position would require a meaningless ritual. Id. If the employee declines such work, the employee will be ineligible for benefits. Id. at 132, 451 A.2d at 1356. Here, Claimant offered competent evidence that he was suffering from health problems as a result of the verbal abuse he suffered at work. Claimant informed Employer about the verbal abuse and its effect on his health in the fourpage complaint he gave to Employer two weeks before Claimant quit. Employer never addressed the complaint, never contacted Claimant regarding an investigation and never offered Claimant suitable employment.

Accordingly, we reverse that portion of the UCBR’s order denying benefits.

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The claimant's counsel is a private attorney from Scranton, Chris Cullen, who has filed a motion to publish, along with that of David Hill of PLA. Atty. Cullen notes that the Board is asking the Supreme Court to review and reverse.

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

foreclosure - HSBC affidavits "inherently untrusworthy" - business-record exception not established

HSBC v. Murphy - Maine Supreme Judicial Court - May 19, 2011

http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me59mu.pdf

Because we determine that the affidavits submitted by HSBC are inherently untrustworthy and, therefore, do not establish the foundation for admission of the attached documents as business records pursuant to M.R. Evid. 803(6), we vacate the judgment without reaching the substantive issues raised.

HSBC’s statement of material facts was supported by record references to an affidavit of John Gonzalez, who was identified in the affidavit as a Foreclosure Manager at HSBC. In its statement of material facts, HSBC asserted that it was the “holder of the Note and Mortgage” by virtue of the assignment from MERS and through “endorsement and delivery of the aforesaid Note from Calusa.” However, there was no endorsement on the face of, or appended to, the copy of the note attached to the Gonzalez affidavit or the complaint.

In residential mortgage foreclosure actions, certain minimum facts must be included in a mortgage holder’s statement of material facts on summary judgment.. . . We have repeatedly emphasized “the importance of applying summary judgment rules strictly in the context of residential mortgage foreclosures.” . . . We have also repeatedly emphasized that a party’s assertion of material facts must be supported by record references to evidence that is of a quality that would be admissible at trial. . . . This qualitative requirement is particularly important in connection with mortgage foreclosures where the affidavits submitted in support of summary judgment are commonly signed by individuals who claim to be custodians of the lender’s business records. Thus, the information supplied by the affidavits is largely derivative because it is drawn from a business’s records, and not from the affiant’s personal observation of events.

It is, perhaps, stating the obvious that an affidavit of a custodian of business records must demonstrate that the affiant meets the requirements of M.R. Evid. 803(6)7 governing the admission of records of regularly conducted business. A business’s records kept in the course of its regularly conducted business may be admissible notwithstanding the hearsay rule if the necessary foundation is established “by the testimony of the custodian or other qualified witness.” M.R. Evid. 803(6). “A qualified witness is one who was intimately involved in the daily operation of the [business] and whose testimony showed the firsthand nature of his knowledge.”. . . The foundation that the custodian or qualified witness must establish is four-fold:

(1) the record was made at or near the time of the events reflected in the record by, or from information transmitted by, a person with personal knowledge of the events recorded therein;

(2) the record was kept in the course of a regularly conducted business;

(3) it was the regular practice of the business to make records of the type involved; and

(4) no lack of trustworthiness is indicated from the source of information from which the record was made or the method or circumstances under which the record was prepared.

In this case, the affidavits submitted by HSBC contain serious irregularities that make them inherently untrustworthy [noting discrepancies in dates, etc.]. . . .Because the information contained in the affidavits, and the business records attached to them, are not of a quality that would be admissible at trial, the court erred by granting a summary judgment.

forum selection clause

NJ Dept. of Treasure v. Merrill Lynch - 3d Cir. - May 18, 2011

http://www.ca3.uscourts.gov/opinarch/094676p.pdf

The court held that a forum selection clause that provides: "exclusive jurisdiction . . . shall lie in the appropriate courts of the State [of] New Jersey" should be interpreted to be a waiver of the right to remove the litigation to the federal district courts in New Jersey, rejecting defendant's argument that the clause contemplates jurisdiction in either the state or the federal courts located in New Jersey.

The court noted that

- the "parties in this case, sophisticated organizations both, were represented by counsel during the negotiation and adoption of the forum selection clause at issue." While contra proferentem may be the general rule, "[a]pplication of the rule may be . . . limited by the degree of sophistication of the contracting parties or the degree to which the contract was negotiated." The doctrine of construing a document against the interests of the party who drafte dit is "inapplicable where parties, both sophisticated entities, had equal bargaining power in drafting agreement."

- every Court of Appeals confronted with a similar forum selection clause "ha[d] ruled that the reference to courts of the state . . . limits jurisdiction to state rather than federal tribunals." The "vast majority of our sister circuits have held that forum selection clauses like the one at issue here required remand to the state court."

- a defendant can contractually waive his right to remove . . . an action brought . . . in a state court. Such waivers are usually upheld if they are reasonable and voluntary and if their enforcement is not inconsistent with public policy. A forum selection clause is unreasonable where party makes "strong showing" that inconvenience of designated forum will effectively deprive him of day in court or that clause resulted from fraud or duress.

Pennsylvania Supreme Court - internal operating procedures

Posted Today! In Re: Amendment of Internal Operating Procedures of the Supreme Court; No. 365 JAD
Opinion By: per curiam
Posted By: W.D. Prothonotary
	Date Rendered: 5/18/2011
	Date Posted: 5/19/2011
	Opinion Type: Rules	365jad.pdf
	Date Rendered: 5/18/2011
	Date Posted: 5/19/2011
	Opinion Type: Rules	365jad.attach.pdf

consumer - atty. fees - reasonable rate - CLS survey v. Laffey

Williams v. NCO Financial Systems - ED Pa - May 10, 2011

http://www.paed.uscourts.gov/documents/opinions/11D0518P.pdf

contracts - tortious interference - truthful statements not actionable

Walnut Street Associates v. Brokerage Concept, Inc. - Pa. Supreme Court - May 13, 2011

http://www.pacourts.us/OpPosting/Supreme/out/J-57-2010mo.pdf

Restatement (Second) of Torts § 772(a) applies in Pennsylvania to preclude an action for tortious interference with contractual relations where it is undisputed that the defendant's interfering statements were truthful.FN1

FN1.
One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other's contractual relation, by giving the third person
(a) truthful information, or
(b) honest advice within the scope of a request for the advice.
Restatement (Second) of Torts § 772 (1979)

UC - unrepresented claimant - duty of referee to develop record

Bellone v. UCBR - May 11l. 2011, - Cmwlth. Court

http://www.pacourts.us/OpPosting/Cwealth/out/1959CD10_5-11-11.pdf

The Department of Labor’s regulation describes how a hearing must be conducted:

(a) In any hearing the tribunal may examine the parties and their witnesses. Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties.

34 Pa. Code §101.21(a).

This Court has stated:

The referee has a responsibility, therefore, to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed to ‘insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits.’ … The referee, of course, need not advise a party on evidentiary questions or on specific points of law but must act reasonably in assisting in the development of the necessary facts, and any failure to develop an adequate record must be prejudicial to the claimant and not mere harmless error or else a reversal will not be found. Bennet v. UCBR, 445 A.2d 258, 259-260 (Pa. Cmwlth. 1982) (emphasis, citation and footnote deleted). (quoting Robinson v. UCBR, 431 A.2d 378, 380 (Pa. Cmwlth. 1981)).

_____________________________________

This case is also summarized at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable.

Citing unreported and single-judge Commonwealth Court decisions - 210 Pa. Code § 67.55 (January 1, 2011) http://www.pacode.com/secure/data/210/chapter67/chap67toc.html#67.55 Parties may cite an unreported panel decision of the Commonwealth Court issued after January 15, 2008 for its persuasive value, but not as binding precedent.

welfare - reimbursement - delayed wages

Kerr v. DPW - Cmwlth. Court - May 3, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/2447CD10_5-3-11.pdf

DPW paid a "diversion benefit" to a state employee to compensate him for delayed payment of wages during a state budget impasse. The employee signed a reimbursement agreement. Employee was later fully reimbursed for his work during the period.

The court held that the "diversion benefit" came under 55 Pa. Code §257.24(e)(3) dealing with reimbursement for assistance received for delayed wages. The regulations says:

Delayed wages. Reimbursement is required of assistance granted, pending the receipt of wages not paid on the
normal payday. Wages received when normally due are considered as income to be adjusted to the grant under
Chapter 183 (relating to income). The form for acknowledging reimbursement from delayed wages is Form PA 176-K

(Agreement and Authorization to Pay Claim) as set forth in subsection (f).

Section 257.24(e)(3) shows that to establish a valid reimbursement claim against Petitioner, the Commonwealth only needed to prove that: (1) Petitioner was granted public assistance; (2) the assistance was granted pending the receipt of delayed wages; and (3) Petitioner’s household signed the Claim form. The Department met its burden by showing that Petitioner received the $1,767 temporary assistance, that he received this assistance because his wages had been delayed due to the budget impasse, and that Petitioner’s fiancée signed the Claim form.

The court also rejected the claim that the Diversion Program was not part of TANF and thus not subject to TANF reimbursement rules.