UC - limitation of issues/presumption of employment

Connect America v. UCBR – Cmwlth. Court – March 19, 2013 – unpublished

http://www.pacourts.us/assets/opinions/Commonwealth/out/1473CD12_3-19-13.pdf

1. Limitation of issues

Pursuant to 34 Pa. Code §101.87, only an issue properly before the referee shall be ruled on at the hearing before the referee; it states:

When an appeal is taken from a decision of the Department, the Department shall be deemed to have ruled upon all matters and questions pertaining to the claim. In hearing the appeal the tribunal shall consider the issues expressly ruled upon in the decision from which the appeal was filed. However, any issue in the case may, with the approval of the parties, be heard, if the speedy administration of justice, without prejudice to any party, will be substantially served thereby.

Id. (emphasis added). We interpret this provision as requiring that “the evidence adduced and determination made at the referee’s hearing be limited to the legal issue ruled on” by the Department. Anthony v. Unemployment Comp. Bd. of Review, 506 A.2d 501, 503 (Pa. Cmwlth. 1986) (quoting Corressel v. Unemployment Comp. Bd. of Review, 385 A.2d 615, 616 (Pa. Cmwlth. 1978)).

Here, the Department ruled Claimant was financially eligible for UC benefits. Employer appealed, raising the sole issue that Claimant was not an employee, but rather was an independent contractor. The referee informed the parties that she would receive evidence on that issue, and only that issue. 

2. Presumption of employment-

Employer bears the heavy burden of overcoming the presumption of employment. Kurbatov v. Dep’t of Labor & Indus., 29 A.3d 66 (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.

 

Child abuse expungement - standard of proof - GV v. DPW - appeal granted

G.V. v. DPW – Supreme Court of Pa. – March 21, 2013

petition for allowance of appeal granted

http://www.pacourts.us/assets/opinions/Supreme/out/619MAL2012.pdf

                                                                                ORDER

PER CURIAM

 

AND NOW, this 21st day of March, 2013, the Petition for Allowance of Appeal is GRANTED on the following issue, as stated by Petitioner:

 

Whether Commonwealth Court erred in requiring a “clear and convincing” evidentiary standard of proof in child abuse expunction cases under the Child Protective Services Law

(CPSL), 23 Pa.C.S. §§6301-6386, where the legislature had established substantial evidence as the required standard of proof?

 

__________________

 

See GV v. GPW – Cmwlth. Court - July 12, 2012 (5-2)

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

.

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

Class Action Fairness Act - amount in controversy

http://www.supremecourt.gov/opinions/12pdf/11-1450_9olb.pdf

 

SUPREME COURT OF THE UNITED STATES

                                                                                   Syllabus

STANDARD FIRE INSURANCE CO. v. KNOWLES

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

No. 11–1450. Argued January 7, 2013—Decided March 19, 2013

The Class Action Fairness Act of 2005 (CAFA) gives federal district courts original jurisdiction over class actions in which, among other things, the matter in controversy exceeds $5 million in sum or value, 28 U. S. C. §§1332(d)(2), (5), and provides that to determine whether a matter exceeds that amount the “claims of the individual class members must be aggregated,” §1332(d)(6). When respondent Knowles filed a proposed class action in Arkansas state court againstpetitioner Standard Fire Insurance Company, he stipulated that he and the class would seek less than $5 million in damages. Pointingto CAFA, petitioner removed the case to the Federal District Court,but it remanded to the state court, concluding that the amount in controversy fell below the CAFA threshold in light of Knowles’ stipu­lation, even though it found that the amount would have fallen above the threshold absent the stipulation. The Eighth Circuit declined to hear petitioner’s appeal.

 

Held: Knowles’ stipulation does not defeat federal jurisdiction under CAFA. Pp. 3−7.

 

(a) Here, the precertification stipulation can tie Knowles’ hands be­cause stipulations are binding on the party who makes them, see Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U. S. ___. However, the stipulation does notspeak for those Knowles purports to represent, for a plaintiff whofiles a proposed class action cannot legally bind members of the pro­posed class before the class is certified. See Smith v. Bayer Corp., 564 U. S. ___, ___. Because Knowles lacked authority to concede theamount in controversy for absent class members, the District Court wrongly concluded that his stipulation could overcome its finding that the CAFA jurisdictional threshold had been met. Pp. 3−4.

 

(b) Knowles concedes that federal jurisdiction cannot be based on contingent future events. Yet, because a stipulation must be binding and a named plaintiff cannot bind precertification class members, the amount he stipulated is in effect contingent. CAFA does not forbid a federal court to consider the possibility that a nonbinding, amount­ limiting, stipulation may not survive the class certification process. To hold otherwise would, for CAFA jurisdictional purposes, treat a nonbinding stipulation as if it were binding, exalt form over sub­stance, and run counter to CAFA’s objective: ensuring “Federal court consideration of interstate cases of national importance.” §2(b)(2), 119 Stat. 5.

It may be simpler for a federal district court to value the amount in controversy on the basis of a stipulation, but ignoring a nonbinding stipulation merely requires the federal judge to do what she must do in cases with no stipulation: aggregate the individual class members’ claims. While individual plaintiffs may avoid removal to federal court by stipulating to amounts that fall below the federal jurisdic­tional threshold, the key characteristic of such stipulations—missing here—is that they are legally binding on all plaintiffs. Pp. 4−7.

Vacated and remanded.

 

BREYER, J., delivered the opinion for a unanimous Court.

Medicaid - anit-lien provision - tort settlement

http://www.supremecourt.gov/opinions/12pdf/12-98_9ol1.pdf

SUPREME COURT OF THE UNITED STATES

Syllabus

WOS, SECRETARY, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES v. E. M. A., A MINOR, BY AND THROUGH HER GUARDIAN AD LITEM, JOHNSON, ET AL.

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

No. 12–98. Argued January 8, 2013—Decided March 20, 2013

The federal Medicaid statute’s anti-lien provision, 42 U. S. C. §1396p(a)(1), pre-empts a State’s effort to take any portion of a Medi­caid beneficiary’s tort judgment or settlement not “designated aspayments for medical care,” Arkansas Dept. of Health and Human Servs. v. Ahlborn, 547 U. S. 268, 284. A North Carolina statute re­quires that up to one-third of any damages recovered by a beneficiaryfor a tortious injury be paid to the State to reimburse it for paymentsit made for medical treatment on account of the injury. Respondent E. M. A. was born with multiple serious birth injuriesthat require her to receive between 12 and 18 hours of skilled nursing care per day and that will prevent her from being able to work, live independently, or provide for her basic needs. North Carolina’s Med­icaid program pays part of the cost of her ongoing medical care.

E. M. A. and her parents filed a medical malpractice suit against the physician who delivered her and the hospital where she was born. They presented expert testimony estimating their damages to exceed $42 million, but they ultimately settled for $2.8 million, due in large part to insurance policy limits. The settlement did not allocate mon­ey among their various medical and nonmedical claims. In approving the settlement, the state court placed one-third of the recovery intoescrow pending a judicial determination of the amount of the lienowed by E. M. A. to the State. E. M. A. and her parents then sought declaratory and injunctive relief in Federal District Court, claimingthat the State’s reimbursement scheme violated the Medicaid anti -lien provision. While that litigation was pending, the North Carolina Supreme Court held in another case that the irrebuttable statutory one-third presumption was a reasonable method for determining the amount due the State for medical expenses. The Federal District Court, in the instant case, agreed. But the Fourth Circuit vacated and remanded, concluding that the State’s statutory scheme could not be reconciled with Ahlborn.

 

Held: The federal anti-lien provision pre-empts North Carolina’s irre­buttable statutory presumption that one-third of a tort recovery is at­tributable to medical expenses. Pp. 4–16.

(a) In Ahlborn, the Court held that the federal Medicaid statute sets both a floor and a ceiling on a State’s potential share of a benefi­ciary’s tort recovery. Federal law requires an assignment to the State of “the right to recover that portion of a settlement that repre­sents payments for medical care,” but also “precludes attachment or encumbrance of the remainder of the settlement.” 547 U. S., at 282, 284. Ahlborn did not, however, resolve the question of how to deter­mine what portion of a settlement represents payment for medical care. As North Carolina construes its statute, when the State’s Med­icaid expenditures exceed one-third of a beneficiary’s tort recovery, the statute establishes a conclusive presumption that one-third of the recovery represents compensation for medical expenses, even if the settlement or verdict expressly allocates a lower percentage of the judgment to medical expenses. Pp. 4–7.

 

(b) North Carolina’s law is pre-empted insofar as it would permit the State to take a portion of a Medicaid beneficiary’s tort judgment or settlement not designated for medical care. It directly conflicts with the federal Medicaid statute and therefore “must give way.” PLIVA, Inc. v. Mensing, 564 U. S. ___, ___. The state law has no pro­cess for determining what portion of a beneficiary’s tort recovery is attributable to medical expenses. Instead, the State has picked an arbitrary percentage and by statutory command labeled that portion of a beneficiary’s tort recovery as representing payment for medical care. A State may not evade pre-emption through creative statutory interpretation or description, “framing” its law in a way that is at odds with the statute’s intended operation and effect. National Meat Assn. v. Harris, 565 U. S. ___, ___. North Carolina’s argument, if ac­cepted, would frustrate the Medicaid anti-lien provision in the con­text of tort recoveries. It lacks any limiting principle: If a State could arbitrarily designate one-third of any recovery as payment for medi­cal expenses, it could arbitrarily designate half or all of the recovery in the same way. The State offers no evidence showing that its allo­cation is reasonable in the mine run of cases, and the law provides no mechanism for determining whether its allocation is reasonable any particular case.

 

No estimate of an allocation will be necessary where there has been a judicial finding or approval of an allocation between medical andnonmedical damages. In some cases, including Ahlborn, this bindingstipulation or judgment will attribute to medical expenses less thanone-third of the settlement. Yet even in these circumstances, North Carolina’s statute would permit the State to take one-third of the to­tal recovery. A conflict thus exists between North Carolina’s law and the Medicaid anti-lien provision.

This case is not as clear-cut as Ahlborn was, for here there was no such stipulation or judgment. But Ahlborn’s reasoning and the fed­eral statute’s design contemplate that possibility: They envisionedthat a judicial or administrative proceeding would be necessarywhere a beneficiary and the State are unable to agree on what por­tion of a settlement represents compensation for medical expenses.See 547 U. S., at 288. North Carolina’s irrebuttable, one-size-fits-all statutory presumption is incompatible with the Medicaid Act’s clear mandate that a State may not demand any portion of a beneficiary’s tort recovery except the share that is attributable to medical ex­penses. Pp. 7–10.

(c) None of North Carolina’s responses to this reasoning is persua­sive. Pp. 10–15. 674 F. 3d 290, affirmed.

 

KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed a concurring opinion. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.

UC - self-employment - sideline activity

Crocker v. UCBR – March 15, 2013 – Cmwlth. Court (en banc)

http://www.pacourts.us/assets/opinions/Commonwealth/out/202CD12_3-15-13.pdf

Claimant held to be eligible for UC where she was laid off from her FT job but continued to work at her sideline job (real estate agent) without substantial change in sideline work, except for increase of 5-10 hours/week, while remaining available for FT employment

The Law distinguishes between disqualifying self-employment and non-disqualifying self-employment, i.e., sideline employment. Section 402(h, 43 P.S. §802(h). This Court has construed the exception in Section 402(h) of the Law to apply where the self-employment began prior to termination from full-time employment; has continued without substantial change after the full-time employment was terminated; and was not the primary source of the claimant’s livelihood. In that case, the claimant is eligible for unemployment compensation so long as she is available for full-time work. Kress v. Unemployment Compensation Board of Review, 23 A.3d 632, 636 (Pa. Cmwlth. 2011).

Here, Claimant testified that her employment with Northwood Realty began in 2004, prior to her employment with Met Electrical Testing, and it continued thereafter. When she was laid off from Met Electrical, she increased her hours of real estate work by five to ten hours a week, which she does in the evenings and on the weekends. Her real estate work has never been the principal  source of her livelihood. Further, she remains available for full-time employment. Indeed, Claimant testified that the reason she took the job with Met Electrical Testing was for financial security. In sum, Claimant’s work as a real estate agent is sideline self-employment that does not affect her eligibility for unemployment by reason of her loss of employment with Met Electrical.

Pennsylvania Constitution - single subject - Article III, sec. 3

Pa. State Assn. of Jury Commissioners v. Commonwealth - Supreme Court – March 14, 2013

http://www.pacourts.us/assets/opinions/Supreme/out/J-15-2013mo.pdf

Statute held to violate single subject rule mandated by Article III, sec. 3 of the Pennsylvania Constitution, which says 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."

The law in question had two major provisions, both of which came under the County Code.  One provision dealt with holding auction sales of surplus farm products and personal property via online and electronic forums.  The other provision dealt with ensuring that lists of potential jurors included a representative cross-section of the community.

The single subject rule limits the practice of “logrolling,” defined as the ability for legislators to put in “distinct and independent subjects of legislation” as a means of disguising the primary purpose of the bill. Prior to the inclusion of Article III, Section 3 in the constitution, logrolling frequently occurred as a means to obtain the assent of the legislature for passage of a bill, when, if the distinct subjects contained within the omnibus legislation had been proposed for passage separately, the likelihood of individual passage was slight.   Thus, Article III, Section 3 serves the dual purposes of preventing the enactment of laws that otherwise would not be passed, and promoting the enhanced scrutiny of single topic bills.

When the Article III provisions regulating legislative procedures were included in the Constitution of 1874 (commonly referred to as the “Reform Constitution”), the practices of “[l]ast-minute consideration of important measures, logrolling, mixing substantive provisions in omnibus bills, low visibility and hasty enactment of important, and sometimes corrupt, legislation, and the attachment of unrelated provisions to bills in the amendment process” were common in the legislature. Id. at 589 (quoting Robert F. Williams, State Constitutional Limits on Legislative  Procedure: Legislative Compliance and Judicial Enforcement, 48 U. PITT L.REV., 797, 798 (1987)).

The court in  City of Phila. v. Commonwealth, 838 A.2d 566, 587 (Pa. 2003) noted that compliance with the single subject rule is two-fold. First, the title of the bill must clearly express the substance of the proposed law. Second, the differing topics within the bill must be “germane” to each other, although what this Court has considered “germane” and “not germane” has fluctuated throughout the years. No party to this case  disputes that the title of the revised H.B. 1644/Act 108 sufficiently states the contents of the bill. Thus, the only contention before this Court concerns the second prong of a single subject analysis: whether the topics contained within the body of the bill are sufficiently germane to each other.

The Court struck down the law, holding that

            - there was no "common focus" between the two subjects of the bill (juror pool and sales of property)

            - the dual governmental functions of county government (legislative and executive) militate against finding the law to be in concert with a single subject
            - the law amended two separate article of a chapter of the county code, one dealing with county officer, the other with contracts

Recent single-subject cases announce a standard of “whether the court can fashion a single, over-arching topic to loosely relate the various subjects included in the statute under review.” City of Phila., 838 A.2d at 587. Nevertheless, the court cautioned that it should be careful not to render Section 3 “impotent to guard against the evils that it was designed to curtail” by fashioning a theme that is all-encompassing in its broadness. . . . See case finding the theme “business of the courts” too encompassing to uphold a law regulating DNA records and apportioning negligence liability); and case holding that the topic of “economic  well-being of the Commonwealth” would turn the germaneness requirement into a nullity).

Note:  The single-subject mandate is one of the issues being litigated in Washington v. DPW, the challenge to Act 80, which terminated the General Assistance program and affected many other programs of the Dept. of Public Welfare.  Oral argument on the merits in Washington has been set for April, 2013, in Commonwealth Court, which denied a preliminary injunction in the case .   The denial of an injunction was appealed to the Supreme Court, where that issue is now (March 2013) pending.

schools - speech, religion - Tinker v. Schooo District

K.A. v. Pocono Mtn. School District – 3d Cir. – March 13, 2013

http://www.ca3.uscourts.gov/opinarch/121728p.pdf

K.A. was a fifth-grade student at the Barrett Elementary Center of the Pocono Mountain School District (the ―School District‖), who was prohibited from distributing invitations to her classmates to a Christmas party at her church.

Her father filed suit on K.A.‘s behalf, alleging that the School District had violated her First and Fourteenth Amendment rights. The District Court, applying the test announced in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and finding no evidence that distribution of the invitations would threaten a ―substantial disruption‖ of the school environment or interfere with the rights of others, id. at 514, granted K.A.‘s motion for preliminary injunctive relief.

For the following reasons, we will affirm the District Court.

UC - TRA

Showers, et al. v. UCBR – March 5, 2013 (18 pp.)

http://www.pacourts.us/assets/opinions/Commonwealth/out/651CD12_3-5-13.pdf

Dean Showers and other claimants petition for review of the Unemployment Compensation Board of Review’s (UCBR) March 14, 2012 orders affirming the Referee’s decision finding Claimants ineligible for Trade Adjustment Assistance, and to receive basic and additional Trade Readjustment Allowances.

There are three issues before this Court: (1) whether a lockout is a qualifying “layoff” or “severance” under Section 247(10) of the Trade Act of 1974 (Trade Act), 19 U.S.C. § 2319(10); (2) whether “lack of work” under Section 247(2) of the Trade Act, 19 U.S.C. § 2319(2), concerns work available at the plant or work available to the employees; and (3) whether a union member forfeits Trade Act benefits when he offers to work under an expired union contract. We affirm.

UC - vol. quit - health reasons - inadequate findings - remand

Watkins v. UCBR – Cmwlth. Court – March 5, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/14CD12_3-5-13.pdf

The findings of the UCBR do not address the factual circumstances that one must analyze with regard to the parties’ respective burdens of proof.

As to Claimant’s burden, the findings do not address:
            (1) whether Claimant’s health reasons were of sufficient dimension to compel her to leave her employment;
            (2) whether Claimant sufficiently informed Employer of her health problems; and
            (3) whether Claimant is able and available for work if Employer can make a reasonable accommodation. See Lee Hosp., 637 A.2d at 698.

As to Employer’s burden (assuming Claimant met her burden), the findings do not address whether Employer made a reasonable attempt to identify and propose possible accommodations for Claimant’s health problems. Id. at 699.

Without such findings, we are unable to engage in effective appellate review. See Stankiewicz v. Unemployment Comp. Bd. of Review, 529 A.2d 614, 616 (Pa. Cmwlth. 1987) (holding where Board’s findings are inadequate, this Court cannot perform appellate review and must remand for additional findings).

Accordingly, we must vacate the Board’s order and Accordingly, we must vacate the Board’s order and remand the matter to the Board for the issuance of a new decision, including new findings of fact and conclusions of law. The Board, on its own or on further remand to a Referee, may take additional evidence or issue a new decision based upon the record before it if the Board determines that the record is sufficient for such purposes.

UC - severance pay - sec. 404(d)(1)

Killian-McCombie v. UCBR – Cmwlth. Court – March 4, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/1654CD12_3-4-13.pdf

 Claimant’s severance pay held to be deductible under the provisions of section 404(d)(1) of the Unemployment Compensation Law (Law), 43 PS 804(d)(1).