Pennsylvania Constitution - substantive due process - lifetime employment ban - old criminal conviction

This new en banc Cmwlth Court decision finds the new lifetime bans on employees/contractors/etc… who have certain enumerated criminal records unconstitutional (as applied) because they violate substantive due process under art 1, sec 1 of the Pennsylvania Constitution

 The court said this in the conclusion:

Because 24 P.S. §1-111(e)(1)  creates  a lifetime ban  for  a  homicide offense that has no temporal proximity  to Johnson’s present ability to perform the duties of his position, and it does not bear a real and substantial relationship to the Commonwealth’s interest in protecting children, it is unreasonable, unduly oppressive and patently beyond the necessities of the offense.  As a result, 24 P.S. §1-111(e)(1) imposes unusual and unnecessary restrictions upon Johnson’s lawful employment as a  “Fatherhood Facilitator” with AIU  and it is unconstitutional as violative of his substantive due process rights. . .

 

http://www.pacourts.us/OpPosting/Cwealth/out/789CD12_12-13-12.pdf

 

statutes - passage - single-subject - Art. III, sec. 3 - Pa. Constitution

Sernovitz v.  Dershaw-   Pa. Super. November 14, 2012

http://www.pacourts.us/OpPosting/Superior/out/A22023_12.pdf

Statute barring claim for "wrongful life" held to be unconstitutional because of violation of the single-subject rule of the Pennsylvania Constitution, Article III, sec. 3, which states that

“No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.” PA. CONST. art. III, § 3.7 The purpose of the creation of Article III was “to place restraints on the legislative process and encourage an open, deliberative and accountable government.” City of Philadelphia v. Commonwealth, 575 Pa. 542, 573, 838 A.2d 566, 585 (2003) (citation omitted).

This Article was included in the Pennsylvania Constitution of 1874, which was drafted in an atmosphere of extreme distrust of the legislative body and of fear of the growing power of corporations, especially the great railroad corporations. It was the product of a convention

whose prevailing mood was one of reform[.] […] [A]s these mandates survived the more recent constitutional revisions, they continue to reflect important policies relating to the nature of the deliberative process. Id. at 573-74, 838 A.2d at 585-86 (internal citations and quotations

omitted).

The single-subject requirement of Article III, Section 3 serves a variety of purposes, including: (1) preventing the attachment of unpopular riders that would not become laws on their own to popular bills that are sure to pass;8 (2) providing for a more considered review of bills brought before the General Assembly, as a bill addressing a variety of subjects is less likely to get such attention; and (3) protecting the integrity of the Governor’s veto power.9 Id. at 574, 575 n.18, 838 A.2d at 586, 586 n.18.

UC - wages - full-time student employed by school s/he is attending

Miller v. UCBR – Cmwlth. Court – November 13, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/751CD12_11-13-12.pdf

Wages earned by a full-time student who worked part time as a lecturer are not includable as UC wages under 43 P.S. §753(l)(4)(10)(B), which says that employment shall not include:  Service performed in the employ of a school, college or university if such service is performed (i) by a student who is enrolled and is regularly attending classes at such school, college or university . . . .

In Knee v. Unemployment Compensation Board of Review, 415 A.2d 1008 (Pa. Cmwlth. 1980), Knee was registered as a full-time dissertation student, having completed her formal classroom studies, and was preparing for her comprehensive examinations. The UCBR excluded the wages she earned while she was preparing for her comprehensive examinations and working as a teaching fellow because she was enrolled as a full-time dissertation student at that time. Id. at 1009. This court affirmed, finding that Knee was a full-time dissertation student and was not finished with her studies. Id.

Here, the UCBR found that Claimant was employed as a part-time lecturer while he was enrolled as a full-time student working on his dissertation, from August 23, 2010, through May 5, 2011. (UCBR’s Findings of Fact, Nos. 1-3.) Claimant was registered as a full-time student while completing the dissertation portion of the doctoral program at PSU. Therefore, according to Knee, Claimant was not eligible for unemployment benefits. The UCBR did not err in excluding Claimant’s earnings.

UC - sexual harassment - vol. quit

Consolidated Scrap v. UCBR –  November 8, 2012 – unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/567CD12_11-8-12.pdf

Employer argues that Claimant calculatedly walked away from her job because she disliked Employer’s chosen course of investigation and quit after Employer took prompt and effective steps to end the conduct about which she complained .

However, the HRA admitted, at the hearing and in her memorandum to Claimant, that Employer’s proposed remedy would have forced Claimant to have daily contact with the individual who had been her harasser, and was continuing to harass her. Obviously, Employer utterly failed to provide Claimant a workplace where she could work without fear of further harassment and/or retaliation.

We find that Claimant’s unwillingness to continue to work in contact with her harasser was reasonable and does not show any lack of good faith effort to preserve employment. Gavlick Personnel Services, Inc. v. Unemployment Compensation Board of Review, 706 A.2d 406, 408 (Pa. Cmwlth. 1998) (promise of future transfer away from harasser to office which did not yet exist was not a sufficient accommodation where claimant would have to work with harasser in the interim); Mutual Pharmaceutical Co., Inc. v. Unemployment Compensation Board of Review, 654 A.2d 37, 41 (Pa. Cmwlth. 1994) (claimant had shown necessitous and compelling reason to quit her job where employer failed to transfer her to shift where she would not have contact with harasser). “[T]here is a certain level of conduct that an employee will not be required to tolerate and … the Court will not place all responsibility upon an employee to resolve his or her work dilemma.

________________

 

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.

employment - ex-military - USERRA

Murphy v. Radnor Twp – ED Pa.  – November 2012

 

http://www.paed.uscourts.gov/documents/opinions/12D1044P.pdf

 

 

The Uniformed Services Employment and Reemployment Rights Act (“USERRA”)

provides, in relevant part, as follows:

 

A person who is a member of ... or has an obligation to perform service in a uniformed

service shall not be denied initial employment, reemployment, retention in employment,

promotion, or any benefit of employment by an employer on the basis of that

membership…or obligation.  38 U.S.C. § 4311(a).

 

It elaborates further: “An employer shall be considered to have engaged in

actions prohibited ... under subsection (a), if the person's membership ... is a motivating factor in

the employer's action, unless the employer can prove that the action would have been taken in

the absence of such membership.” Id. at § 4311(c) (emphasis). Thus the statute, by its terms,

prohibits discriminatory actions where a person’s military status is simply a motivating factor,

not the sole motivating factor.

public housing - eviction - criminal conduct that preceded lease

In addition to the Wellston Housing Authority case, below, see 66 FR 28776, at 28781 (5/24/01), which states the following, on the timing of the illegal activity:

" ...

 For public housing, the 1937 Act (section 6(l)(6)), 42 U.S.C.
1437d(l)(6)) requires that a PHA use leases that ``provide that any
criminal activity that threatens the health, safety, or right to
peaceful enjoyment of the premises by other tenants or any drug-related
criminal activity on or off such premises, engaged in by a [covered
person] shall be cause for termination of tenancy.'' Thus, the illegal
drug use criterion of section 577 of the 1998 Act adds little regarding
eviction of illegal drug users for the public housing program, but adds
a provision on alcohol abuse. None of the statutes explicitly addresses
the timing of the offending activity. The final rule does not include
the phrase ``during the term of the lease'' that would have been added
by the proposed rule, since that phrase is unnecessary. Activity
occurring only prior to the time the leaseholder signed the lease, or
the household member or guest joined the household or became a guest,
would not be a basis for termination of tenancy. The provision on
consideration of rehabilitation is not included in the eviction
provision itself but is included in the regulatory provisions that
address generally the authority of a responsible entity in making
admission and termination decisions (see Secs. 5.852, 960.203, 966.4,
982.310, and 982.552).   "  [emphasis added]
   

 

                        

---

 

131 S.W.3d 378 (2004)

WELLSTON HOUSING AUTHORITY, Plaintiff/Appellant,
v.
Marilyn MURPHY, Defendant/Respondent.

No. ED 83156.

Missouri Court of Appeals, Eastern District, Division Three.

March 23, 2004.

 

 

http://scholar.google.com/scholar_case?case=13299758204172287375&q=131+sw+3d+378&hl=en&as_sdt=2,39

attorney fees - sec. 1988 - prevailing party - no money damages

Lefemine v. Wideman – US SCt – November 5, 2012

http://www.supremecourt.gov/opinions/12pdf/12-168_9o6b.pdf

Per Curiam

SUPREME COURT OF THE UNITED STATES

STEVEN LEFEMINE, DBA COLUMBIA CHRISTIANS FOR LIFE v. DAN WIDEMAN ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12–168. Decided November 5, 2012

PER CURIAM.

This case concerns the award of attorney’s fees in a suitalleging unconstitutional conduct by government officials. The United States Court of Appeals for the Fourth Circuitheld that a plaintiff who secured a permanent injunction but no monetary damages was not a “prevailing party” under 42 U. S. C. §1988, and so could not receive fees.That was error. Because the injunction ordered the de­fendant officials to change their behavior in a way thatdirectly benefited the plaintiff, we vacate the Fourth Circuit's decision and remand for further proceedings.

child abuse - expungement - privilege - 23 Pa. C.S. 6381(c)

T.D. v. DPW – October 11, 2012 – Commonwealth Court

http://www.pacourts.us/OpPosting/Cwealth/out/581CD12_10-11-12.pdf

Secion 6381(c) of the Child Protective Services Law, setting out rules for privileged communications in child abuse cases, pre-empts all other privilege statutes.

Sec. 6381(c) says that

(c) Privileged communications. – Except for privileged communications between a lawyer and a client and between a minister and penitent, a privilege of confidential communication between husband and wife or between any professional person, including but not limited to, physicians, psychologists, counselors, employees of hospitals, clinics, day-care centers and schools and their patients or clients, shall not constitute grounds for excluding evidence at any proceeding regarding child abuse or the cause of child abuse. [emphasis added]

Accrord, B.K. v. Department of Public Welfare, 36 A.3d 649 (Pa. Cmwlth. 2012).

tax sale - notice - incomplete mailing address

Manufacturers and Traders Trust Co. v. Luzerne Co. Tax Claim Bureau – Cmwlth. Court – Oct. 2, 2012

 http://www.pacourts.us/OpPosting/Cwealth/out/2186CD11_10-1-12.pdf

 Tax sale vacated where the address of the notice send to bank was not complete and bank alleged non-receipt.

The address used omitted the term "Attn: General Counsel's Office," which was part of the address listed on the bank's recorded lien document.

 

_________________________________

paternity by estoppel

Pa. Superior Court

http://www.pacourts.us/OpPosting/Superior/out/a15024_12.pdf

 

UC - separation agreement - immediacy of threat of discharge - VQ v. invol. termination

Halldin v. UCBR – Cmwlth. Court – Septemver 19, 2012 – unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/2482CD11_9-19-12.pdf

Board denial of benefits reversed where its own findings of fact did not support its legal conclusion that the claimant quit her job when continuing work was available and chance of termination was only speculative.

The Board's own findings of fact showed that claimant met with management to discuss an involuntary separation of employment.” (FOF ¶ 2 (emphasis added).) On the day after this meeting discussing Claimant’s involuntary separation, Employer presented Claimant with the Separation Agreement, in which Employer agreed to pay Claimant severance pay for a period of time in exchange for Claimant signing the Separation Agreement and leaving her employment. Finally, finding of fact 5 states that “[C]laimant signed the Separation Agreement . . . because of her belief that her employment would have been involuntarily terminated in one (1) month if she decided not to accept and sign the Separation Agreement.” (FOF ¶ 5 (emphasis added).)

Notwithstanding these findings of fact, the Board concluded that there was no indication that there would not be continuing work for Claimant had she not signed the Separation Agreement or that Employer would discharge Claimant. Based on these conclusions, the Board found Claimant ineligible for UC benefits.

However, the findings of fact do not support the Board’s conclusions of law but, rather, support the contrary conclusion that Claimant’s signing of the Separation Agreement and voluntarily leaving her employment was done in anticipation of her imminent involuntary discharge. See Wright-Swygert v. Unemployment Compensation Board of Review, 16 A.3d 1204, 1208 (Pa. Cmwlth. 2011)
_________________________

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.

Social Security - Chevron deference - AR 92(6) - cessation of disability

Hagans v. Commissioner of Social Security – 3d Cir. – September 14, 2012

http://www.ca3.uscourts.gov/opinarch/112526p.pdf

In holding that the claimant's disability had ceased, interpreting 42 USC 423(f) and 92 AR-2(6), the court granted a "relatively high level of deference" to SSA's  interpretation of the statute and the AR.

The primary issue in the case was the relevant date for determining whether claimant continued to be disabled  – the date on which the SSA asserts that his disability had ceased or  the date of the ALJ’s hearing or the date of the ALJ’s ruling. . Use of one of these later dates would bolster the claim for disability benefits because he had advanced into a different age category by the time of the ALJ’s hearing.  

The court deferred to the SSA ruling that the earlier date was appropriate.

UC - self-employment - findings on indiv. issues - notice of issues

Cooper v. UCBR - Cmwlth. Court - Sept. 7, 2012 - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/2118CD11_9-7-12.pdf

Lack of findings

Unfortunately, our ability to perform effective appellate review of whether Claimant is self-employed and ineligible for benefits pursuant to Sections 402(h) and 4(l)(2)(B) is hindered by the lack of factual findings made by the Board in this matter. Although it found that Claimant was free from the direction and control of ECI and Hilton, the Board issued no findings of fact regarding the individual factors necessary for making that determination. Additionally, the Board made no findings of fact regarding whether Claimant was customarily engaged in an independently established trade, occupation, profession or business. In fact, the Board did not address the second prong of Section 4(l)(2)(B) in determining that Claimant was ineligible for benefits as an independent contractor. Thus, we must remand this matter to the Board.

Each prong has a number of factors that will be considered to determine whether a claimant is self-employed. See, e.g., Tracy v. UCBR, 23 A.3d 612, 616 (Pa. Cmwlth. 2011) , , , ,"No single factor is controlling . . . and, therefore, the ultimate conclusion must be based on the totality of the circumstances." Resource Staffing, Inc. v. UCBR, 961 A.2d 261, 264 (Pa. Cmwlth. 2008). Furthermore, we recently have held that "the fact that an unemployed person agrees to accept, and thereafter does accept, an occasional offer of work is simply not enough to demonstrate that said individual is customarily engaged in an independently established trade, occupation, profession or business." Silver v. UCBR, 34 A.3d 893, 898 (Pa. Cmwlth. 2011). . .. Minelli v. UCBR, 39 A.3d 593, 597-98 (Pa. Cmwlth. 2012).

Adequate notice of the issues - We have held that the Board’s regulations, including 34 Pa. Code § 101.107 (what issues can be considered on appeal) "are designed to prevent surprise to claimants." Sharp Equipment Co., 808 A.2d at 1026. Moreover, the Board may only consider what was "delineated in the Bureau’s determination notice. To allow a critique of other conduct against which charge the employee is unprepared to defend or explain is fundamentally unfair and, absent mutual consent of its consideration, is prohibited." Hanover Concrete Co. v. UCBR, 402 A.2d 720, 721 (Pa. Cmwlth. 1979). Thus, "where an applicant has been found ineligible for benefits, this Court will limit the hearing to the reason stated in the Bureau’s determination." Sharp Equipment Co., 808 A.2d at 1026 (second emphasis added).

We do not agree that a party’s due process rights of notice, an opportunity to be heard, and to defend are satisfied when, although a party is provided a general statement as to the section of the Law at issue, the Board bases its determination of ineligibility on a new legal theory that had not been raised or addressed in the prior proceedings or, most importantly, during the Referee’s hearing at which a party is supposed to have an opportunity to present evidence in support of his or her eligibility

While the overall legal issue has been whether Claimant was engaged in self-employment, the legal basis for that determination has differed at each stage of the proceedings in this matter.  A remand is also required for these reasons.

________________

 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 - willful misconduct - email - threat - use of capital letters

Aversa v. UCBR – Cmwlth. Court – Sept. 13 2012

http://www.pacourts.us/OpPosting/Cwealth/out/1744CD11_9-13-12.pdf   (2-1)

Neutral words are converted into threat by use of CAPITAL LETTERS

When claimant perceived he was wrongfully removed from a sales region, he wrote to the person who replaced him, stating: Hey Jim, you set me up pretty good … I WON’T FORGET IT.”  The employer fired him for threatening conduct.  The UCBR denied benefits.

The Board did not believe Claimant’s statement that he did not intend to convey a threat, but that credibility determination is not substantive evidence that Claimant did, in fact, intend a threat. An adverse credibility determination is not itself substantial evidence.

To find that Claimant intended a threat requires evidence. This evidence could take the form of an admission by Claimant to a third party, such as "I sent a threat to Mowery today." Otherwise, the words of the statement itself must establish, objectively, the intended threat.  The HR manager believed that because "I won’t forget it" written in capitalized letters, it conveyed a threat.  The manager did not consider the fact that capitalized letters in an e-mail are still quite small.

The context of a remark is also relevant. Bush v. UCBR, 409 A.2d 523, 544 (Pa. Cmwlth. 1980) (holding that a finding of willful misconduct on the basis of use of proscribed language requires consideration of the context in which the language is used). A message transmitted through cyberspace does not contain the same force or immediacy of an in-person exchange; it is absent of voice or hand gesture. Further, there is nothing threatening about the words "I won’t forget it." The use of capitalized letters adds emphasis, but it did not transform a four-word declarative sentence into a threat of violence. The message was not sent anonymously.  The HR manager’s subjective construction is not itself substantial evidence of Claimant’s intent.

The words in the e-mail convey two points: Claimant noted Mowery’s perceived perfidy and informed Mowery that he was not going to forget Mowery’s act. Neither constitutes a threat. At most, the e-mail conveys the information that Claimant is angry and bears a grudge. The Associate Handbook does not forbid expressing anger or harboring grudges.

In sum, we hold that by objective standards, the e-mail did not convey an intentional threat or a wanton and deliberate violation of Employer’s workplace violence policy.

Accordingly, we reverse

UC - self-employment - indpt. contractor - 2-prong test

Jia v. UCBR - Cmwlth. Court - Septe.ber 7, 2012 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/2459CD11_9-7-12.pdf

In employment cases, an individual receiving wages for his services is presumed to be an employee, and the employer bears a heavy burden to overcome that presumption. Thomas Edison State Coll. v. UCBR, 980 A.2d 736, 741 (Pa. Cmwlth. 2009). To overcome this statutory presumption of employment, the employer must show that the individual performed the work free from the employer's control and direction, and that the work was done for others, not just the employer, as part of an independent trade. Sharp Equip. Co. v. UCBR, 808 A.2d 1019 (Pa. Cmwlth. 2006). “[U]nless 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. UCBR, 293 A.2d 126, 129 (Pa. Cmwlth. 1972) (en banc); see also Sharp; Venango Newspapers v. UCBR, 631 A.2d 1384 (Pa. Cmwlth. 1993).

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

The Board’s only analysis of the two-prong test consists of three sentences: "The claimant worked pursuant to the independent contractor agreement both under the contract of service and in fact. The claimant had an independent business as an independent contractor. Therefore, the claimant was an independent contractor." The Board’s only finding related to his status as an independent contractor is a finding of fact that Claimant "could work for other contractors as long as there was no conflict of interest." The fact that Claimant signed a consulting contract is not dispositive of the work relationship. Nevertheless, the Board’s decision appears to rely entirely upon the existence of the consultant contract.

In considering the second prong of the test, we examine whether: (1) the claimant was capable of performing the activities in question for anyone who wished to avail themselves of his services; and, (2) the nature of the business compelled the claimant to look to only a single employer for continuation of work. Venango.

This Court recently emphasized the importance of an employer supplying evidence to show that a claimant is engaged in an independent business in Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593 (Pa. Cmwlth 2012). Similarly, and significantly, the record here lacks any evidence that Claimant customarily engaged in an independent business or performed programming services for any other business. As in Minelli and Sharp, Claimant’s testimony is clear that he was not so engaged, and there is no contrary evidence. The single act of signing the consulting contract here does not suffice. Sharp. The contract language providing that Claimant could work for others does not establish that he engaged in an independent business, and did work for others. Minelli. Moreover, the scope of work requires Claimant to work in Employer’s offices during specified business hours, thus undermining his ability to work for others. See Sharp. The test an employer must satisfy to overcome the presumption of an employment relationship is simply not met here.
-------------------

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.

Juvenile - notice of adjud. of delinquency to "school" includes colleges and universities

In the Interest of S.D., a minor - Superior Court - September 5, 2012

http://www.pacourts.us/OpPosting/Superior/out/s36029_12.pdf

Provision of Juvenile Act, 42 Pa.C.S.A. § 6341(b.1), which requires notice to minor's school of adjudication of delinquency, requires notice to colleges and universities as well as other schools.

frivolous litigation - pro se plaintiff - Rule 233.1

Gray v. Buonopane - Superior Court - August 22, 2012

http://www.pacourts.us/OpPosting/Superior/out/s28004_12.pdf

Discussion of Rule 233.1 - frivolous litigation, pro se plaintiffs, motion to dismiss.

admin. law - burden of proof - procedure where non-burdened party does not appear

V.W. v. DPW - Cmwlth. Court - August 24, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/1894CD11_8-24-12.pdf

Dismissal of appeal from decision in child abuse expungement case reversed, where

a) DPW put on no evidence of abuse, and
b) appellant, the alleged abuser, had notice of the hearing and failed to appear.

Under the relevant statute and case law, DPW had the burden of proving abuse, but presented no evidence, relying entirely on the appellant's non-appearance.

Generally, "the burden of proof … rests upon the party who … asserts the affirmative of an issue"; thus, "one alleging a fact … has the burden of establishing it." Lincoln Intermediate Unit #12 v. Bermudian Springs Sch. Dist., 441 A.2d 813, 815 (Pa. Cmwlth. 1982) [quoting Hervitz v. New York Life Ins. Co., 52 A.2d 368, 369 (Pa. Super. 1947)]. In Lee v. DPW, 523 A.2d 1188 (Pa. Cmwlth. 1987), the owner of the nursing home appealed the Department's audits but failed to appear at a scheduled hearing without seeking continuance. The Court upheld the dismissal of the appeal, stating: "The petitioners bore the burden of proof before the Hearing Officer … and by virtue of their non-appearance, failed to present any evidence to support their challenges as to the audit appeals …. The petitioners, therefore, must be held to have failed to carry their burden, thus rendering the dismissal proper." Id. at 1189-90 (citations omitted).

Unlike in Lee, CYS, not V.W. who failed to appear at the hearing, had the burden of proof at the scheduled hearing. Section 6341(c) of the Law provides that "[t]he burden of proof in the hearing shall be on the appropriate county agency." Under the heading "[h]earings and appeals proceedings for indicated reports received by ChildLine after June 30, 1995," 55 Pa. Code § 3490.106a(g) also provides that "[t]he burden of proof in hearings held under this section is on the appropriate county agency."

In Zawacki v. Department of Transportation, Bureau of Driver Licensing, 745 A.2d 701 (Pa. Cmwlth. 2000), the court concluded that because the Department had the burden of proof in a statutory license suspension appeal, it was required to present a prima facie case despite the nonappearance of the licensee and his counsel at the hearing, noting that "a Licensee may prevail without presenting any evidence whatsoever." Zawacki, 745 A.2d at 703. See also Commonwealth v. 1992 Chevrolet, 844 A.2d 583 (Pa. Cmwlth. 2004).

The same rule should apply to this expungement proceeding, in which CYS had the burden of proving existence of substantial evidence supporting the indicated report of child abuse. The Bureau should have proceeded to hold a hearing despite V.W.'s nonappearance and to determine whether CYS met its burden. Hence, the Bureau erred in dismissing V.W.'s appeal as abandoned. Accordingly, we vacate the Bureau's order and remand this matter to the Bureau to hold a hearing and determine V.W.'s entitlement to expungement of the indicated report based on evidence presented by the parties at the hearing.

civil procedure - dismissal for lack of service by sheriff

Fonzone v. Tribune Corp. - Superior Court - August 31, 2012

http://www.pacourts.us/OpPosting/Superior/out/a15039_12.pdf

Dismissal of case for lack of proper service affirmed.

Plaintiff/Appellant had complaint served other than by the sheriff. Other methods of service do not supplant Rule 401, which requires service to be made by a sheriff in most instances. There is nothing in the record showing service by the sheriff.

Appellant’s alternative argument, that service deficiencies are irrelevant where Appellees in fact had the complaint, are unavailing. As our Supreme Court has explained:

Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed. Without valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her. Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of the action against him or her. Cintas Corp. v. Lee's Cleaning Servs., 700 A.2d 915, 917-18 (Pa. 1997).

UC - vol. quit - abusive language by employer

Vito Rinaldi Chevrolet v. UCBR - August 16, 2012 - unreported memorandum decision (2-1)


http://www.pacourts.us/OpPosting/Cwealth/out/139CD12_8-16-12.pdf

The court remanded the case for findings about the employer's offer of other employment but sustained the board's findings that claimant had good cause to quit because of abuse language by a supervisor on two separate occasions. ("If you can’t handle your customers, there’s the F’in door.". . . "you know what F you. F you and F your 17 cars you sold last month, I’m tired of it, F you."

Profanity in the workplace and abusive conduct may present adequate justification to terminate one’s employment, and a claimant need not be subjected to such language or conduct indefinitely. Porco v. Unemployment Compensation Board of Review, 828 A.2d 426 (Pa. Cmwlth. 2003). However, a claimant must make a reasonable effort to maintain his employment, such as informing his supervisor of the offensive or abusive conduct. Id. See also First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811 (Pa. Cmwlth. 2008),

The dissent would have just sustained the board's grant of benefits and not remanded.

UC - free-lance writer - self-employment - 2-part test - indpt. trade - burden of proof

Mitchell v. UCBR - Cmwlth. Court - August 17, 2012 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1910CD11_8-17-12.pdf

In an unemployment compensation benefits proceeding, the determination of whether claimant is or is not self-employed is a question of law subject to review by Commonwealth Court. Melnychuk v. UCBR, 520 A.2d 89 (Pa. Cmwlth. 1987). Because section 402(h) of the Law does not define the term "self-employment," our courts look to section 4(l)(2)(B) of the Law, which defines "employment" as:

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 or 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(1)(2)(B).

This Court has repeatedly held that for a claimant to be declared to be self-employed, both elements of section 4(l)(2)(B) must be satisfied. Silver v. UCCBR, 34 A.3d 893 (Pa. Cmwlth. 2011). Typically, the employer has the burden of proving that a claimant is self-employed, but where, as here, the bureau commences proceedings that culminate in a suspension of benefits due to self-employment, the bureau carries the burden. Id.

In Buchanan v. UCBR, 581 A.2d 1005 (Pa. Cmwlth. 1990), we held that setting up a booth at a flea market to sell homemade jewelry did not constitute customary engagement in an independently established trade, occupation, profession or business even where the claimant had invested $2,028.00 to buy tools and spools of gold chain for the project. More recently, this Court held that evidence that the claimant was performing limited work as a consultant on an as-needed basis and performed only a total of twenty-two hours of work over a three day basis was “simply not enough to demonstrate that Claimant is customarily engaged in an independently established trade, occupation, profession, or trade.” Minelli v. UCBR, 39 A.3d 593, 598 (Pa. Cmwlth. 2012) (internal quotations omitted).

In the present case, Claimant was found eligible for and was receiving benefits after the loss of his previous employment, and he properly reported his minimal earnings to the Department. Like the claimants in Minelli and Silver, Claimant has performed a small amount of work on an as-needed, de minimus basis. There is no evidence indicating that Claimant intended to establish his own business, and, pursuant to Minelli and Silver, we conclude that writing ten articles while actively seeking full-time employment does not amount to becoming “customarily engaged in an independently established trade, occupation, or business,” under section 4(l)(2)(B), rendering Claimant ineligible for benefits under section 402(h) of the Law.

Accordingly, the Board’s order is reversed.

________________


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.

Attorneys - Pa. Supreme Court - exclusive power to court to regulate

City of Pittsburgh v. Silver and Pittsburgh Post-Gazette - Cmwlth. Court - August 16, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/1658CD11_8-16-12.pdf

In this open records case, the Commonwealth Court stated that

Article V, Section 10(c) of the Pennsylvania Constitution states that "[t]he Supreme Court shall have the power to prescribe general rules … for admission to the bar and to practice law." PA. CONST. art. V, §10(c). Thus, the Supreme Court is empowered by the Pennsylvania Constitution to exclusively govern the conduct of attorneys practicing law in this Commonwealth. Beyers v. Richmond, 594 Pa. 654, 665, 937 A.2d 1082, 1089 (2007); Commonwealth v. Stern, 549 Pa. 505, 510, 701 A.2d 568, 570 (1997).

The Supreme Court’s exclusive authority in this area is founded on the separation of powers between the branches of our Commonwealth’s government. Beyers, 594 Pa at 666-67, 937 A.2d at 1090-91.10 “[I]t is well settled that the power to regulate and define what constitutes the ‘practice of law’ is vested in the judiciary, and not in the executive or legislative branches of government.” Gmerek v. State Ethics Commission, 751 A.2d 1241, 1254 (Pa. Cmwlth. 2000), aff’d per curiam, 569 Pa. 579, 807 A.2d 812 (2002) (citation omitted). “Pursuant to [its] constitutional authority, [our Supreme] Court adopted the Rules of Professional Conduct and the Rules of Disciplinary Enforcement, which govern the conduct and discipline of attorneys.” Stern, 549 Pa. at 510, 701 A.2d at 571. See Pa. R.D.E. 103 (“The Supreme Court declares that it has inherent and exclusive power to supervise the conduct of attorneys who are its officers (which power is reasserted in Section 10(c) of Article V of the Constitution of Pennsylvania) and in furtherance thereof promulgates these rules….”).

Our Supreme Court’s sole jurisdiction over the practice of law includes the conduct of litigation, which necessarily includes lawyers’ efforts to settle litigation. See Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed sub nom. Bucheit v. Laudenberger, 456 U.S. 940 (1982). Allowing anyone to make ongoing requests under the Right to Know Law concerning all correspondence regarding settlement impermissibly intrudes into the conduct of litigation because it would lessen the frank exchange of information between the parties thereby adversely affecting the ability for litigation to settle. Moreover, the conduct of litigation could be affected because other parties to the litigation could constantly seek information about settlement discussions to discern the other parties’ belief as to the strength or weakness of their case. Allowing an administrative agency to order the release of documents would interfere with the courts’ sole control over the conduct of litigation.

Moreover, Pa. R.P.C. 1.6(a) states that "[a] lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation…."

UC - willful misconduct - bad language - "moron"

Brown v. UCBR - Cmwlth. Court - August 9, 2012


http://www.pacourts.us/OpPosting/Cwealth/out/1618CD11_8-9-12.pdf

The Board held that two signs Claimant posted in the workplace were threatening in nature and very offensive because they used the word "moron."

Claimant acknowledged that he posted the signs but explained that he did so to prevent his co-workers from attempting to use an inoperable battery, which could be hazardous. Claimant testified that one of his work duties was to ensure that batteries needing repair were kept out of circulation and set aside in a designated space. Each out-of-service battery is labeled with a sign reading “Do Not Use.” When Claimant reported to work the week of February 13, 2011, he discovered that someone had torn the “Do Not Use” sign off of an out-of-service battery and had attempted to charge and use it before it had been repaired. Claimant reported the matter to his supervisor, who directed Claimant to return the battery to the out-of-service space, and Claimant did so. Claimant then placed two hand written signs on the battery that read “To the moron who can’t read do not use this, do not use this battery” and “Not charging you moron.”

An employee’s use of abusive, vulgar or offensive language with a superior is a form of insubordination that can constitute willful misconduct, even if the employer has not adopted a specific work rule prohibiting such language. Allen v. Unemployment Compensation Board of Review, 638 A.2d 448, 451 (Pa. Cmwlth. 1994). Where an employer has adopted a policy against the use of obscene or abusive language with other employees or customers, violation of that rule may constitute willful misconduct. Brandt v. Unemployment Compensation Board of Review, 537 Pa. 267, 643 A.2d 78 (1994). However, the context in which the profanity or other proscribed language is used must be considered. Bush v. Unemployment Compensation Board of Review, 409 A.2d 523, 524 (Pa. Cmwlth. 1980) (holding that in the absence of evidence on context, a claimant’s admission to using profanity "at times" did not constitute willful misconduct). In any case, the language used must be examined to determine whether it is, in modern parlance, abusive, vulgar or offensive. Cundiff v. Unemployment Compensation Board of Review, 489 A.2d 948, 951 (Pa. Cmwlth. 1985). Willful misconduct is not proven where use of the proscribed language was provoked or is de minimis in nature. Id. at 950.

Here, Claimant worked in a 770,000 square foot warehouse along with 605 employees. This was not a ladies club where the servers wear white gloves and speak in hushed tones. Employer produced no evidence that "moron" and words like it were not used and not tolerated at its facility. It is telling that when Claimant was called a "jackass" by his supervisor, no discipline was imposed on the speaker. The incident established that in Employer’s warehouse the use of offensive language, such as "jackass" and "moron," might require an apology but not a discharge. Notably, "jackass," a stronger word than "moron," was uttered in a more troubling context because it was directed by a supervisor to his subordinate. Management should be held to a higher standard of conduct. Claimant did not direct the term "moron" to his superior, which could be insubordination if unprovoked. Allen, 638 A.2d 448, 451. Indeed, Claimant did not direct "moron" to any specific individual or co-worker, as the Board itself acknowledges.

Because "moron" is neither a threatening word nor a word totally outside the bounds of what one might expect to encounter in a large and busy warehouse, we conclude that Claimant’s use of the word "moron" did not rise to the level of willful misconduct. Therefore, we reverse the Board. "Moron" was neither threatening nor far outside the bounds for what words might be spoken in a large and busy warehouse. Claimant did not commit willful misconduct. In addition, Claimant’s use of "moron" was de minimis and provoked by the dangerous negligence of some unknown co-worker who attempted to charge an inoperable battery. Cundiff, 489 A.2d at 951.

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This summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable and can be accessed without a password.

UC - availability for work

Hellams v. UCBR - Cmwlth. Court - August 8, 2012 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/2491CD11_8-8-12.pdf

Woman who was caring for her husband was not available for work.

Section 401(d)(1) provides that in order to receive benefits, an employee must be "able to work and available for suitable work." 43 P.S. § 801 (d)(1). To establish availability for work, a claimant must be ready and able to accept employment, and be actually and currently attached to the labor force. Ruiz v. Unemployment Comp. Bd. of Review, 911 A.2d 600 (Pa. Cmwlth. 2006). It is the claimant’s burden to prove she is available for work. Hamot Med. Ctr. v. Unemployment Comp. Bd. of Review, 645 A.2d 466 (Pa. Cmwlth. 1994). Whether a claimant is available for work is a question of fact for the Board. Gettig Eng’g v. Unemployment Comp. Bd. of Review, 473 A.2d 749 (Pa. Cmwlth. 1984).
________________

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 - willful misconduct v. incompetence - level of previous ability

Hoffman v. UCBR - Cmwlth. Court - August 8, 2012 - unpublished memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/232CD12_8-8-12.pdf

To establish willful misconduct, the employer must demonstrate that the employee’s conduct was of an intentional and deliberate nature. Myer v. Unemployment Comp. Bd. of Review, 533 Pa. 373, 625 A.2d 622 (1993). Therefore, "[m]ere incompetence, inexperience or inability of an employee can justify a discharge, but will not constitute willful misconduct so as to render an employee ineligible for benefits." Cullison v. Unemployment Comp. Bd. of Review, 444 A.2d 1330, 1332 (Pa. Cmwlth. 1982). However, a claimant’s work performance below the level of his ability over a period of time may be considered a conscious or careless disregard of the employer’s interests and may rise to the level of willful misconduct. Younes v. Unemployment Comp. Bd. of Review, 467 A.2d 1227 (Pa. Cmwlth. 1983).
________________

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.

FMLA - employee notice - pretext analysis

Lichtenstein v. UPMC - 3d Cir. - August 3, 2012

http://www.ca3.uscourts.gov/opinarch/113419p.pdf

This case was largely decided on the basis that there were factual disputes that precluded summary relief for the employer.

It contains a lot of good discussion and analysis about FMLA in general and, in particular

- the specificity of the infomation that an employee has to give an employer to invoke FMLA, and

- the nature of pretext analysis when a legitimate justification for terminating an employee precedes the employee's exercise of FMLA rights.

consumer protection - "person" - community college

Meyer et al. v. Community College of Beaver County - Pa. Supreme Court - August 3, 1012

http://www.pacourts.us/OpPosting/Supreme/out/626wal2011Granted.pdf

The court granted the defendant's petition for allowance of appeal from a Commonwealth Court decision, 30 A.3d 587 (Pa. Cmlth. 2011) holding that a community college is a "person" under the state Consumer Protection Law.

The community college was sued by former students who were enrolled in a muncipal police officer training program, which was uncertified during the course of their studies.

police liability for warrantless entry into home

Ryburn v. Huff - US Supreme Court - January 23, 2012

http://www.supremecourt.gov/opinions/11pdf/11-208.pdf

Sec. 1983 liability for police entry into private home rejected.

In Brigham City v. Stuart, 547 U. S. 398, 400 (2006), we held that officers may enter a residence without a warrant when they have "an objectively reasonable basis for believing that an occupant is . . . imminently threatened with [serious injury]." We explained that "‘[t]he need to protect or preserve life or avoid serious injury is justificationfor what would be otherwise illegal absent an exigency or emergency.’" Id., at 403 (quoting Mincey v. Arizona, 437 U. S. 385, 392 (1978)). In addition, in Georgia v. Randolph, 547 U. S. 103, 118 (2006), the Court stated that "it would be silly to suggest that the police would commit a tort by entering [a residence] . . . to determine whetherviolence . . . is about to (or soon will) occur." There was such an objectively reasonable basis in this case, involving entry into the home of a student who was alleged to have threatened to "shoot up" his school.

UC - willful misconduct - progressive disciplinary system

Hughes v. UCBR - Cmwlth. Court - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1448CD11_7-31-12.pdf

Court reversed Board in this willful misconduct case.

An employee’s conduct cannot be considered willful misconduct for unemployment compensation purposes when the employer has not adhered to its own progressive disciplinary system in discharging the employee. Looney v. UCBR, 529 A.2d 612, 614 (Pa. Cmwlth. 1987).

Employer's administrator conceded that ER did not follow its own progressive discipline policy before it terminated Claimant. The administrator testified that the policy requires two corrective actions prior to termination: a verbal discussion with the employee and a written warning. It is undisputed that Claimant was never provided with a written warning about her handling of the financial records. Further, there was no evidence that the infraction at issue would warrant deviating from the progressive discipline policy. See, e.g., Frigm v. UCBR, 642 A.2d 629, 634 (Pa. Cmwlth. 1994) (employer’s personnel policy expressly provided that "a serious offense may warrant immediate discharge."). The ER witness did not assert that Claimant’s conduct was an "egregious circumstance" that provided an exception to the progressive discipline procedures. Indeed, the pages of the handbook that allow for immediate discharge for "egregious circumstances" were not offered into evidence by Employer.

In addition, there was "absolutely no evidence" to support the critical finding that Claimant had a conflict of interest.

_________

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.

Intentional infliction of emotional distress

Full discussion of Pennsylvania law on this issue in

Messer v. First Financial - ED Pa. - July 30, 2012

http://www.paed.uscourts.gov/documents/opinions/12D0742P.pdf

Borough residential landlord-tenant ordinance upheld

Berwick Area Landlord Association v. Borough of Berwick - Cmwlth. Court - June 27, 2012


http://www.pacourts.us/OpPosting/Cwealth/out/766CD11_6-27-12.pdf

Borough LT ordinance upheld against various challenges. Law regulates residential rentals and requires them to be licensed, maintained and registered and sets out various duties of owners and occupants.

The court relied on, inter alia, Berwick Area Landlord Association v. Borough of Berwick, No. 07-316, 2007 WL 2065247 (M.D. Pa. July 16, 2007) (rejecting federal substantive due process claim by same plaintiffs regarding same ordinance); Bloomsburg Landlords Association, Inc. v. Town of Bloomsburg, 912 F. Supp. 790, 804-05 (M.D. Pa. 1995), aff’d, 96 F.3d 1431 (3d Cir. 1996) (rejecting federal substantive due process claim regarding similar ordinance) and McSwain v. Commonwealth, 520 A.2d 527, 529 (Pa. Cmwlth. 1987) (en banc).

Discriminatory lending - Pa. Human Relations Act

Girard Finance v. Pennsylvania Human Relations Commission - Pa. Cmwlth. Court - July 27, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/2189CD11_7-27-12.pdf

The court upheld a PHRC order requiring respondents Girard Finance and Richter to

- cease and desist from unlawfully discriminating against individual and others because of their race and/or national origin

- pay substantial money damages

- pay a civil penalty

- provide employees with training regarding non-discriminatory practices

- develop and implement a recording system to track all of its transactions

- report to the PHRC the means by which it will comply with the order.

Respondents were found to have unlawfully discriminated against individual complainant an other similarly situated persons on account of their race in the terms and conditions of loans of money and in the terms and conditions of real estate-related transactions.

The state Human Relations Act expressly authorizes the PHRC "[t]o initiate, receive, investigate and pass upon complaints charging unlawful discriminatory practices." 43 P.S. § 957(f). Section 5(h)(8) of the PHRA makes it unlawful to "[d]iscriminate in real estate-related transactions." 43 P.S. § 955(h)(8). "[R]eal estate-related transactions" include "the making or purchasing of loans . . . for . . . commercial property." Section 4(y)(1) of the PHRA, 43 P.S. § 954(y)(1).

Marcellus Shale - Act 13 - Pa. Constitution

Robinson Township v. PUC - Cmwlth. Court - July 26, 2012 (66 pp.)

http://www.pacourts.us/OpPosting/Cwealth/out/284MD12_7-26-12.pdf

In a case involving a township's challenge to state statute concerning the Marcellus Shale, the commonwealth filed PO's and both parties moved for summary relief on some issues.

- standing - municipalties , landowners, associations, et al. -
- equal protections - Article I, sec. 1, and 14th Amendment - PO's rejected
- special laws - Article III, sec. 32
- natural resources - Article I, sec. 27
- separation of powers
- delegation of legislative power
- vagueness

On the Commonwealth's preliminary objections, the court sustained many, rejected a few, held that two sections of the law were unconstitutional.

The township's claims about violation of equal protection and impropert delegation of legislative power were upheld and enforcement of much of the law, Act 13, was enjoined.

UC - notice of hearing - presumption of receipt - opportunity to rebut

Volk v. UCBR - Cmwlth. Court - July 26, 2012 (4-3)

http://www.pacourts.us/OpPosting/Cwealth/out/576CD11_7-26-12.pdf

A claimant who alleges that he did not get notice of the referee hearing must be afforded a hearing at which he has an opportunity to rebut the presumption of receipt of the notice.

The UCBR "may not rely solely upon the sufficiency of statements made in a petitioner’s appeal document or request to reopen the hearing, but must provide the petitioner against whom the presumption of receipt is being asserted the opportunity to submit evidence to rebut that presumption and to support the asserted reasons believed to be proper cause for not appearing at the hearing before the Board determines whether the petitioner had proper cause for not attending the hearing. Our holding is consistent with the Department’s regulation at 34 Pa. Code § 101.104, this Court’s decision in Coin Automatic Laundry, 447 A.2d 690, 691 (Pa. Cmwlth. 1982), and the principles of due process. To hold otherwise would effectively transform the presumption of receipt of mail into an irrebutable presumption. Therefore, we vacate the Board’s Order and remand for further proceedings consistent with this opinion.

contracts - adhesion - exculpatory clause - recklessness - public policy

Tayar v. Camelback Ski Corp. - Pa. S.Ct. - July 18, 2012

Majority -  http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011mo.pdf  (21 pp.) (Todd + 4)

Concur/dissent - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011codo1.pdf  (2 pp.) (Eakin)

Concur/dissent - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011codo2.pdf  (8 pp.) (Baer)

This is a case personal injury involving a ski resort. The plaintiff signed a contract containing a release from liability for the defendant.

The court held that it was against public policy for a defendant to be relieved of reckless conduct.

- Exculpatory clauses - contract of adhesion - Exculpatory provisions are generally disfavored. They are only enforceable where three conditions are met. First, the clause must not contravene public policy. Second, the contract must be between persons concerning their private affairs. Third, each party must be a free bargaining agent so the contract is not one of adhesion. Employers Liab. Assur. Corp. v. Greenville Business Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966).

- Public policy - Avoidance of contract terms on public policy grounds requires a showing of overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards. See Williams v. GEICO Gov’t Employees Ins. Co., __ Pa. __, 32 A.3d 1195 (2011). Public policy is more than a vague goal. It is be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term “public policy” is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy[.] . . . Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts . . . contrary to public policy. The courts must be content to await legislative action. Further, it is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring.

- A release for reckless conduct is against public policy - There is a spectrum of tortious conduct recklessness falls. At one end of that spectrum, exculpatory clauses that release a party from negligence generally are not against public policy, and are enforceable provided certain criteria are met. On the other end of the continuum are releases for intentional conduct. It is elementary and foundational to our system of criminal and tort law that parties are not permitted to intentionally harm one another. Accordingly, releases for intentional tortious conduct are likewise prohibited. Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence. This conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence, but aligns it more closely with intentional conduct. As a result, we are inclined to apply the same prohibition on releasing reckless conduct as we do for intentional conduct.

This view is supported by the conclusions of courts in other jurisdictions. The overwhelming majority of our sister states find releases for reckless conduct are against public policy, and federal courts purporting to apply Pennsylvania law have barred the enforcement of releases for reckless behavior.

Were we to sanction releases for reckless conduct, parties would escape liability for consciously disregarding substantial risks of harm to others; indeed, liability would be waivable for all conduct except where the actor specifically intended harm to occur. There is near unanimity across jurisdictions that such releases are unenforceable, as such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct. We therefore conclude that, even in this voluntarily recreational setting involving private parties, there is a dominant public policy against allowing exculpatory releases of reckless behavior, which encourages parties to adhere to minimal standards of care and safety.

Housing - Sec. 8 - conviction for possession of drug paraphernalia not disqualifying

Romagna v. Housing Authority of Indiana Co. - Cmwlth. Court -July 13, 2012 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1648CD11_7-13-12.pdf

Conviction for possession of "drug paraphernalia" did not disqualify applicant from sec. 8 housing assistance, since such activity is not the basis for disqualification under any statutes or regulations.

HUD regulations give a housing authority power to deny entry to an applicant who has engaged in "[d]rug-related criminal activity." 24 C.F.R. §982.553(a)(2)(ii)(A)(1). This regulation defines "drug-related criminal activity" as the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug. 24 C.F.R. §5.100. It defines "drug" as any "controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. §802)." 24 C.F.R. §5.100.

This regulation parrots Section 8(f)(5) of the Housing and Community Development Act of 1974, 42 U.S.C. §1437f(f)(5), which also defines "drug-related criminal activity" as "the illegal manufacture, sale, distribution, use, or possession with intent to manufacture, sell, distribute, or use, of a controlled substance (as defined in Section 802 of title 21)." Title 21 states that a controlled substance is a "drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter."

Title 21 incorporates the meaning of "drug" set forth in the Food, Drug, and Cosmetic Act, 21 U.S.C. §321(g)(1), which states as follows: The term "drug" means (A) articles recognized in the official United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (B) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (C) articles (other than food) intended to affect the structure or any function of the body of man or other animals; and (D) articles intended for use as a component of any article specified in clause (A), (B), or (C)…. 21 U.S.C. §321(g)(1).

Neither the definition of "drug" nor "controlled substance" includes drug paraphernalia. The Housing Authority does not offer any authority for its view that these terms do include drug paraphernalia. It merely argues that the trial court’s analysis ignores the reality that possession of drug paraphernalia is a crime because it goes hand-in-hand with drug usage.

Under the Housing Authority’s own regulation, a drug-related criminal activity requires the actual use or possession of a drug, and it does not include possession of paraphernalia. Applicant’s drug paraphernalia conviction was not relevant to her eligibility for housing.

________________

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.

Child abuse - expungement - clear and convincing

TT v. DPW - July 13, 2012 - Commonwealth Court

http://www.pacourts.us/OpPosting/Cwealth/out/1890CD11_7-13-12.pdf

Following its recent opinion in G.V. v. DPW, the court said....

Historically, in expungement proceedings, the Department has had the burden to show that the indicated report was accurate by substantial evidence. Bucks County CYS v. DPW, 616 A.2d 170 (Pa. Cmwlth. 1992). However, in the recently argued G.V. v. Department of Public Welfare, we held that the use of this standard to maintain statutorily-designated information from an indicated report on the ChildLine Registry did not adequately protect the rights of the accused and adopted the clear and convincing evidence standard for those proceedings.

Clear and convincing evidence is the highest burden in our civil law and requires that the fact-finder be able to come to clear conviction, without hesitancy, of the truth of the precise fact in issue. Suber v. Pennsylvania Commission on Crime and Delinquency, 885 A.2d 678, 682 (Pa. Cmwlth. 2005). To meet that standard, it necessarily means that the witnesses must be found to be credible, that the facts to which they have testified are remembered distinctly, and that their testimony is so clear, direct, weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Id.

Here, an order maintaining the indicated child abuse report summary on the ChildLine Registry against T.T., a Pennsylvania public school teacher, results in a significant impact not only on his personal and professional reputation, but also on his ability to continue practicing his profession. Such an impact demonstrates the need to apply the stricter clear and convincing evidence standard in expungement proceedings.

EAJA - disability - closely approaching advanced age - HALLEX v. binding case law

Jones v. Astrue - ED Pa - July 10, 2012

http://www.paed.uscourts.gov/documents/opinions/12D0666P.pdf

It is undisputed that if the ALJ had placed claimant -- 2 weeks from his 55th birthday -- in the higher category of “person of advanced age,” the grids would have directed a finding of disabled. However, despite Jones’s proximity to age fifty-five, the ALJ’s decision neither referred to a “borderline situation” nor cited 20 CFR §§ 404.1563(b) or 416.963(b). The decision did not consider which age category best described Jones’s ability to adjust to new work, but stated only that he was “a person closely approaching advanced age” based on his chronological age, contrary to the Third Circuit’s holding in Kane v. Heckler, where the Third Circuit held that the regulations require the ALJ to explicitly acknowledge a borderline situation and to determine which age category best describes the claimant’s ability to adjust to new work. 776 F.2d at 1132-34.

Following Kane, Jones’s proximity to age fifty-five at the time of the ALJ’s decision presented a borderline situation. Sections §§ 404.1563(b) and 416.963(b) require the Commissioner to consider the use of the higher age category in such situations. The ALJ was at least required to address the application of §§ 404.1563(b) and 416.963(b) to Jones’s case and explain why he used the lower age category.

The court rejected the Commissioner’s argument that the ALJ adequately considered Jones’s ability to adapt to new work by soliciting testimony from the VE. It noted that the ALJ never addressed the existence of a borderline situation during his colloquy with the VE, but instead asked the VE to assume at all times that Jones was categorized as a person closely approaching advanced age. The court also also held that HALLEX did not relieve the ALJ from explicitly recognizing the borderline situation as required by Kane because HALLEX is not legally binding.

child abuse - expungement - standard of proof - clear and convincing

G.V. v. DPW - Cmwlth. Court - July 12, 2012 (5-2)

http://www.pacourts.us/OpPosting/Cwealth/out/125CD11_7-12-12.pdf

The "clear and convincing" standard must apply to child abuse registry cases, since basing an indicated report on substantial evidence, as was done by the ALJ and as set forth in the Law, "does not adequately protect the rights of the accused perpetrator given the nature of the proceedings and the adverse consequences which flow from a finding of abuse and registration in the statewide Child[Line] Registry." J.S. v. Department of Public Welfare, 528 Pa. 243, 596 A.2d 1114 (1991). The standard of proof in expungement proceedings must be one of clear and convincing evidence.

Article I, Section 1 of the Pennsylvania Constitution provides: "All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting . . . reputation . . . ." Pa. Const. art. I, § 1. Because reputation is a protected fundamental interest under Article I, Section 1 of the Pennsylvania Constitution, the loss of reputation, the stigma associated with being named a child abuser, and the effect of such a determination on one's ability to gain employment all demand a higher standard of proof in order to satisfy due process.

The court applied a balancing test under R. v. Department of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994) and Mathews v. Eldridge, 424 U.S. 319, 335 (1976), using the following factors to be considered: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‟s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements will entail.

After weighing these factors, the Court held that "substantial evidence must support a determination of whether child abuse has occurred, but there must be clear and convincing evidence of child abuse to maintain statutorily-designated information from an indicated report on the ChildLine Registry."

convictions - expungement - underage drinking, simple assault

Commonwealth v. Furrer - Superior Court - July 11, 2012

http://www.pacourts.us/OpPosting/Superior/out/s39012_12.pdf

Appellate court affirmed refusal to expunge simple assault conviction, but reversed and ordered expungment of conviction for underage drinking.

Expungement of criminal records is governed by statute. See Hunt v. Pennsylvania State Police, 603 Pa. 156, 166, 983 A.2d 627, 633 (2009) (citing 18 Pa.C.S.A. § 9122). “The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth.

There is a long-standing right in this Commonwealth to petition for expungement of a criminal arrest record, a right that is adjunct of due process. Carlacci v. Mazaleski, [798 A.2d 186,

Judicial analysis and evaluation of a petition to expunge depend upon the manner of disposition of the charges against the petitioner. When an individual has been convicted of the offenses charged, then expungement of criminal history records may be granted only under very limited circumstances that are set forth by statute. 18 Pa.C.S. § 9122; Hunt v. Pennsylvania State Police, 604 Pa. 156, 983 A.2d 627, 633 (2009). Commonwealth v. Wallace, ___ A.3d ___, 2012 WL 1893526 at *2 (Pa. Super. filed May 25, 2012) (citing Commonwealth v. Moto, ___ Pa. ___, ___, 23 A.3d 989, 993-994 (2011)).

Here, the record establishes the following undisputed facts: (1) Appellant was convicted of a violation of section 6308 in the Court of Common Pleas of Westmoreland County; (2) at age 22, he petitioned the Court of Common Pleas of Westmoreland County, seeking expungement of, inter alia, the section 6308 conviction; and (3) he satisfied all terms and conditions of the sentence imposed for the section 6308 violation. Therefore, pursuant to the plain, mandatory language of 18 Pa.C.S.A. § 9122(a)(3) the trial court was required to expunge all criminal history record information related to the section 6308 conviction. In not doing so, the trial court abused its discretion.
Expungment of a simple assault conviction is not mandatory under sec. 9122 and does not fit the discretionary criteria under sec. 9122(b), since the appellant here is not over age 70, is still alive, and simple assault is not a summary offense.