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.
Friday, August 17, 2012
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.
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.
Thursday, August 16, 2012
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…."
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…."
Monday, August 13, 2012
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.
-------------
This summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable and can be accessed without a password.
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.
Wednesday, August 08, 2012
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.
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.
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.
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.
Tuesday, August 07, 2012
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.
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.
Wednesday, August 01, 2012
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.
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.
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