Civil Procedure - Prothonotary - powers - no power to reject or evaluate documents

Brown v. Levy - Cmwlth. Court - June 27, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/1270CD09_6-27-11.pdf

The court held that under Pa. R.C.P. 205.2, a prothonotary has a "duty to file documents that substantively comply with the rules of civil procedure."

In this mandamus action by a prisoner, the prothonotary filed a motion to dismiss the action, alleging that it constituted "prison conditions litigation" under the three-strikes provision of the state Prison Litigation Reform Act, 42 Pa. C.S. 6601 et seq., which authorized dismissal of such cases after 3 or more by the same prisoner had been dismissed as frivolous.

The court agreed with the plaintiff prisoner that a mandamus action is not "prison conditions litigation". It stated further that "the Prothonotary, while playing an essential role in our court system, lacks authority to interpret statutes, evaluate the merits of a litigant’s pleading, and decline to accept a timely filed document.

It is “well settled” in the intermediate courts of this Commonwealth that the role of the prothonotary of the court of common pleas, while vitally important, is purely ministerial. . . As a purely ministerial office, any authority exercised by the prothonotary must derive from either statute or rule of court. . . Further, as “[t]he prothonotary is merely the clerk of the the court of Common Pleas[,][h]e has no judicial powers, nor does he have power to act as attorney for others by virtue of his office.” . . . Consistent therewith, “[t]he prothonotary is not ‘an administrative officer who has discretion to interpret statutes.’” . . .Thus, while playing an essential role in our court system, the prothonotary’s powers do not include the judicial role of statutory interpretation. . . [I]f documents tendered for filing are proper on their face and in conformity to the rules of court, a prothonotary does not have discretion to refuse to enter them. [citations omitted throughout].

UC - willful misconduct - public challenge of employer action

Kelly v. UCBR - Cmwlth. Court - June 24, 2011 - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1924CD10_6-24-11.pdf

Claimant's questioning of an employer decision in a non-abusive, non-abrasive and non-vulgar (“[d]oes everyone hear this, I am against this.”) held not to be willful misconduct, even though it took place in a waiting room where there were some employer patients. See Luketic v. UCBR, 386 A.2d 1045 (Pa. Cmwlth. 1978), and Dincher v. UCBR, 502 A.2d 797 (Pa. Cmwlth. 1986).

Luketic - A poor attitude alone does not equal willful misconduct, especially where the claimant’s language was neither abusive nor vulgar and appeared justified in light of her experience. We refused to hold that rais[ing] in a non-abusive fashion what under the circumstances was a legitimate question … even coupled with a finding of a bad attitude, can reasonably be classified as willful misconduct under the [Law].

Dincher - The “mere challenge of the employer’s veracity absent vulgar and offensive language was not willful misconduct….” Dincher, 502 A.2d at 799. We also held that the “mere talking back to a supervisor absent abusive language is not willful misconduct for purposes of the [Law].” Id. at 800.

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

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 - voluntary quit - medical reasons

Woolf Steel, Inc. v. UCBR - Cmwlth. Court - June 24, 2011 - unpublished memoradum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/2164CD10_6-24-11.pdf

The court rejected an employer appeal and upheld that grant of benefits to claimant, who had serious surgery which temporarily limited his ability to do his former, heavy work. Claimant fully informed employer about his limitations and was available for work consistent with those limitations.

Here is some of the court's discussion of the issues.

In Genetin v. UCBR, 499 Pa. 125, 451 A.2d 1353 (1982), our Supreme Court set forth the standard applicable where a claimant asserts medical reasons for his voluntary quit. Genetin provides that in such cases a claimant may meet his burden under section 402(b) of the Law by showing: (1) adequate health reasons existed to justify the voluntary termination; (2) the claimant communicated such reasons to the employer; and (3) the claimant is available to work if reasonable accommodations can be made. In Genetin, the court also stated that “once [the employee] has communicated his medical problem to the employer and explained his inability to perform the regularly assigned duties, an employee can do no more.” Id., 499 Pa. at 131, 451 A.2d at 1356.

Our Supreme Court rejected the notion that an employee must specifically request a transfer to a more suitable position. Instead, the court in Genetin held that where an employee voluntarily terminates employment because of a medical condition, the employee must establish that he can no longer perform his regular duties due to the medical condition, inform his employer that he can no longer perform his regular duties, and be available for suitable work consistent with his medical condition. Pursuant to the Supreme Court’s holding, if the employee does this in good faith, it is up to the employer to provide suitable work. Genetin, 499 Pa. 125, 451 A.2d 1353 (1982).

A claimant need not always produce expert medical testimony or medical documentation to satisfy his burden to present “competent evidence”: The distinction between ‘competent evidence’ ... and the ‘competent medical evidence’ requirement articulated in the opinion of the court below is vital. The former is a broader standard which allows an applicant to meet the burden with his own testimony and supporting documents. The latter is a more stringent requirement which could result in the denial of benefits simply because an applicant fails to provide the expert testimony of a physician even where such testimony would be superfluous or cumulative. The broader standard more effectively comports with this Court's view that the Unemployment Compensation Law must be liberally and broadly construed. Steffy v. UCBR, 453 A.2d 591, 594 (Pa. 1982) (emphasis added). This Court subsequently interpreted Steffy to allow a claimant to satisfy his or her burden of production by presenting her testimony and/or supporting documents. Lee Hospital v. UCBR, 637 A.2d 695 (Pa. Cmwlth. 1994); Judd v. UCBR, 496 A.2d 1377 (Pa. Cmwlth. 1985). In Goettler Distributing, Inc. v. UCBR, 508 A.2d 630 (Pa. Cmwlth. 1986), this Court expressly concluded that the disjunctive “and/or” interpretation of Steffy was the better analysis and was consistent with the broad and liberal interpretation of the Law. Philadelphia Parking Authority v. UCBR, 1 A.3d 965, 968-969 (Pa. Cmwlth. 2010)

Claimant provided sufficient credible evidence to establish that adequate health reasons existed causing him to voluntarily terminate his employment, that he tried to communicate these concerns to Employer, and that he was available to work. Therefore, the Board properly concluded that Claimant is not ineligible for benefits under sections 401(d)(1) or 402(b) of the Law. Accordingly, we affirm.

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

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 - self-employment - attorney - sec. 402(h)

Kress v. UCBR - Cmwlth. Court - June 23, 2011



http://www.pacourts.us/OpPosting/Cwealth/out/2500CD10_6-23-11.pdf



Claimant, an attorney, was hired by a law firm to do Criminal Justice Act (CJA) cases, and applied for UC benefits after he was laid off.



Under Section 402(h) of the Law, an employee who engages in self-employment is ineligible for benefits unless (1) the self-employment began prior to the termination of the employee’s full-time employment; (2) the self-employment continued without substantial change after the termination; (3) the employee remained available for full-time employment; and (4) the self-employment was not the primary source of the employee’s livelihood. O’Hara v. UCBR, 648 A.2d 1311 (Pa. Cmwlth. 1994). The claimant bears the burden of proving that his activity is non-disqualifying under Section 402(h). Id. Claimant contends that the Board erred in denying him benefits because he met all of the above criteria. We agree.



- Claimant’s activities in respect to the CJA clients remained the same before, during and after his employment with Employer. Consequently, Claimant met the first prong of the test.



- Because the test is whether the claimant has worked on the activity for significantly more hours than he did prior to the separation, and the only testimony available was from Claimant who stated that his workload remained roughly the same, Claimant also met this prong of the test.



- Because Claimant testified that he was available for full-time employment and was looking for a job at a law firm, he met the third prong of the test.



- Clearly, the sideline job was not a primary source of income at $10,000 a year compared to his law firm job paying $65,000 a year, and Claimant met the fourth prong as well.

Because Claimant proved that his CJA activities were nondisqualifying under Section 402(h), Claimant is entitled to unemployment compensation benefits.

UC - willful misconduct - absenteeism

Abdellah v. UCBR - Cmwlth. Court - June 23, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/2166CD10_6-23-11.pdf

Absenteeism, alone, “is not a sufficient basis for denial of unemployment benefits,” even though it may constitute grounds for discharge. Runkle v. UCBR, 521 A.2d 530, 531 (Pa. Cmwlth. 1987).

In order for absenteeism to constitute willful misconduct, an additional element is necessary. Id. Factors that are considered in leading to a showing of absenteeism constituting willful misconduct are: “(1) [e]x-cessive absences, (2) [f]ailure to notify the employer in advance of the absence, (3) [l]ack of good or adequate cause for the absence, (4) [d]isobedience of existing company rules, regulations, or policy with regard to absenteeism, [and] (5) [d]isregard of warnings regarding absenteeism.” Petty v. UCBR, 325 A.2d 642, 643 (Pa. Cmwlth. 1974).

When an employer fires a claimant for a pattern of absenteeism, the claimant will be eligible for benefits if the final absence was justified. See, e.g., Runkle, 521 A.2d at 531 (holding claimant eligible for benefits because there was substantial evidence to show claimant was ill on her last absences); Haigler v. Commonwealth, 462 A.2d 954, 955 (Pa. Cmwlth. 1982) (holding claimant ineligible for benefits because he failed to justify his last absence).

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UC - indpt. contractor - campaign manager for political candidate

http://www.pacourts.us/OpPosting/Cwealth/out/2098CD10_6-21-11.pdf

Cmwlth Court - June 21, 2011

Barrett, campaign manager for Tracy, candidate for Lt. Gov. of Illinois, held to be an independent contractor.

PFA - contempt - multiple contempts - sentence of > 6 months proper

Hill v. Randolph - Pa. Super. - June 1, 2011

http://www.pacourts.us/OpPosting/Superior/out/s80015_10.pdf

Defendant was convicted of two counts of indirect criminal contempt for violations of a PFA order, arising out of a single incident. One contempt involved entry into plaintiff's home; the other involved his physical abuse of her. The trial court found defendant guilty and sentenced him to 6 months imprisonment on each contempt charge, for a total imprisonment of one year.

The court rejected defendant's challenges to an aggregate sentence of more than 6 months, the maximum sentence for a PFA violation, stating "We infer nothing in the PFA Act1 to bar prosecution of multiple ICC charges arising from different violations of the same order, nor are double jeopardy or trial-by-jury rights implicated in the facts before us. Accordingly, we affirm."

Sec. 1983 - free speech - citizen v. employee

Tatum v. Phila. Housing Authority - ED Pa. - May 26, 2011

http://www.paed.uscourts.gov/documents/opinions/11D0586P.pdf

Section 1983 provides a remedy for vindicating federal substantive rights. . . .The Court has recognized “an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” . . .To allege a Section 1983 violation against multiple defendants, the plaintiff “must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”

Because Section 1983 is a “remedy for deprivations of rights established elsewhere in the Constitution or federal laws,” “the initial question in a section 1983 action is whether the plaintiff has alleged a deprivation of a constitutional right at all.”. . . Here, Plaintiff alleges a constitutional deprivation of his First Amendment rights resulting in his termination from PHA.

The Third Circuit employs the following three-step burden-shifting analysis to a public employee’s Section 1983 claim of retaliation for engaging in protected activity under the First
Amendment: (1) the employee must demonstrate that his/her speech is protected, that is, it addresses a matter of public concern and the “employee’s interest in the speech outweighs” the employer’s countervailing interest “in promoting workplace efficiency and avoiding workplace disruption” (i.e., the balancing test established in Pickering v. Bd. of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed.2d 811 (1968)); (2) the employee must prove that his/her speech was “a substantial or motivating factor” in the retaliatory action against him/her, which, if proven; (3) shifts the burden to the employer to prove that the “allegedly retaliatory action would have been taken absent the protected [speech].” Reilly v. City of Atlantic City, 532 F.3d 216, 224 (3d Cir. 2008) (citation omitted).

The governing Supreme Court case addressing whether a public employee’s speech is protected under the First Amendment is Garcetti v. Ceballos, 547 U.S. 410 (2006). The Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 421. In Garcetti, the plaintiff, Richard Ceballos, a deputy district attorney, investigated inaccuracies in an affidavit used to obtain a search warrant in a pending case, communicated his concerns to his supervisors regarding the matter, and wrote a memorandum recommending dismissal of the case. Garcetti, 547 U.S. at 413-14. Ceballos testified on behalf of the defense regarding his concerns, and was demoted and transferred shortly after testifying. Id. at 414-15. Ceballos contended that his speech was constitutionally protected and the retaliation was unlawful. Id. at 415. The Supreme Court determined that Ceballos wrote the memorandum “pursuant to official responsibilities” and therefore had no claim for unconstitutional retaliation. Id. at 424.

Following Garcetti, the Third Circuit held that: [a] public employee’s statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have “an adequate justification for treating the employee differently from any other member of the general public” as a result of the statement he made. . . The Court will consider the “content, form, and context of a given statement” to determine whether a government employee’s expressive conduct involves a “matter of public concern.”