abuse - expungment - late appeal - request for hearing - right to hearing - due process

J.P. v. DHS – Cmwlth. Court – September 12, 2017

http://www.pacourts.us/assets/opinions/Commonwealth/out/1602CD16_9-12-17.pdf?cb=1

Alleged perpetrator (“petitioner”) of abuse responded within appropriate time to initial notice of indicated report of abuse in 2000 by writing asking the the indicated report be “destroyed or amended...” based on errors in the report and explained that “if necessary, I would like to appeal or dismiss this claim.  If a hearing is necessary, I would like one.”

DHS sent petitioner two further letters in 2000 and 2001 as part of a “two-step appeal process.”  Petitioner did not respond to either of these letters, which he said that he had never received.  He continued to work – as a teacher – for fifteen (15) years – until 2016, when his school directed him to renew his background check, at which time he discovered that he was listed on the ChildLine Registry as an abuser.  He immediately asked for a hearing, which request was denied by DHS as untimely.

The Court reversed, holding the petitioner’s response to the initial notice of indicated report was a “clear request for a hearing” to which he had an “absolute right” as a matter of due process under the Pennsylvania Constitutions.

Excerpts from the opinion

Reputation is a “fundamental right under the Pennsylvania Constitution”

Placement on a registry for alleged child abuse causes damage to the alleged abuser, primarily in the form of reputational harm and employment repercussions. Reputation is expressly protected in Sections 1 and 11 of Article I of the Pennsylvania Constitution. 8 In the Commonwealth, reputation is “a fundamental interest which cannot be abridged without compliance with constitutional standards of due process and equal protection.” R. v. Dep’t of Pub. Welfare, 636 A.2d 142, 149 (Pa. 1994); see also In re J.B., 107 A.3d 1, 16 (Pa. 2014) (“[The Pennsylvania Supreme Court] has recognized that the right to reputation, although absent from the federal constitution, is a fundamental right under the Pennsylvania Constitution”). “In Pennsylvania, therefore, reputational harm alone is an affront to one’s constitutional rights.” D.C. v. Dep’t of Human Serv., 150 A.3d 558, 566 (Pa. Cmwlth. 2016).

Due process

Because an indicated report goes into the registry on the basis of the investigation alone, the alleged perpetrator suffers a loss to reputation and possibly employment, all without a hearing. Id. at 564. We expressed concern that the lack of a pre-deprivation hearing raises a serious due process question. Id.   In D.C., we also closely examined the Missouri Supreme Court’s decision in Jamison v. State of Missouri, Department of Social Services, 218 S.W.3d 399 (Mo. 2007). There, the Missouri Supreme Court declared Missouri’s version of the Child Protective Services Law unconstitutional for that exact reason—because the Missouri law did not provide for a pre-deprivation hearing.

Unlike Missouri, Pennsylvania has not yet answered the question of whether a pre-deprivation hearing is necessary to satisfy due process. Pennsylvania decisions have expressed serious misgivings about the Commonwealth’s statutory scheme. Senior Judge Friedman expressed her concern in the following way:

It shocks my conscience that the [Child Protective Services] Law would allow the investigating caseworker to render a de facto adjudication that is adverse to an individual’s reputation without an independent adjudicator having had the opportunity to consider the investigator’s evidence of child abuse in accordance with established procedures of due process. This is particularly so because unless, or until, the alleged abuser timely requests an expunction hearing, the names of the falsely accused may nevertheless be released to physicians, child advocates, courts, the General Assembly, the Attorney General, federal officials, county officials, law enforcement officials, the district attorney and others. Thus, by the time [the Department] orders the expunction of an indicated report, a person’s reputation already may be tarnished erroneously.

K.J. v. DPW, 767 A.2d 609, 616 n.9 (Pa. Cmwlth.) (Friedman, J., dissenting) (emphasis in original), appeal denied, 788 A.2d 381 (Pa. 2001). More recently, in G.V. v. DPW, 91 A.3d 667 (Pa. 2014), Justice Saylor, now Chief Justice, concluded his concurrence by noting that “the inquiry into whether the Pennsylvania statute reflects adequate process remains seriously in question,” adding that the current system “is in tension with the constitutional 12 preference for pre-deprivation process.” G.V., 91 A.3d at 674 n.1 (Saylor, J., concurring).   In determining the sufficiency of the procedure, the Supreme Court’s decision in Mathews v. Eldridge, 424 U.S. 319 (1976), instructs that three factors must 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 requirement would entail. Mathews, 424 U.S. at 335. The Supreme Court has held “that some form of hearing is required before an individual is finally deprived of a [protected] interest” because “the right to be heard before being condemned to suffer grievous loss of any kind . . . is a principle basic to our society.” Id. at 333 (emphasis added) (internal quotation omitted).

Petitioner was entitled to adequate notice and some form of a hearing. Initially, we note that the June 12, 2000 letter, notifying Petitioner of the indicated report, used the exact wording that this Court criticized in the past.  In C.S. v. DPW, 879 A.2d 1274 (Pa. Cmwlth. 2005), another challenge by an alleged perpetrator of child abuse, the notice from the Department provided: “If this request is denied, perpetrators may have a right to a hearing.” C.S., 879 A.2d at 1277 (emphasis omitted). We held that the use of the word “may” rendered the notice equivocal, thus constituting a breakdown of administrative procedure that justified nunc pro tunc relief. Id. at 1280. Here, by using the same wording used in C.S., the notice in the June 12, 2000 letter is equally equivocal. Additionally, the June 12, 2000 letter does not appear to give any indication that Petitioner would be listed on the ChildLine Registry.  The letter simply provides that the Department will maintain a file on petitioner. Petitioner does not, however, argue that the June 12, 2000 letter was equivocal, so as to justify nunc pro tunc relief, or inadequate, so as to violate due process.   Accordingly, because we need not determine whether the June 12, 2000 letter provided “adequate notice” in terms of due process, we proceed to the question of whether Petitioner was afforded “some form of hearing.” See Mathews, 424 U.S. at 333.

We need not apply the Mathews test to determine the constitutionality of Pennsylvania’s current process under the Child Protective Services Law— providing a post-deprivation rather than a pre-deprivation hearing—because here, the Department violated Petitioner’s right to due process by not providing any form of a hearing. In his July 25, 2000 letter to the Department, Petitioner requested the indicated report be “destroyed or amended” and added, “[i]f a hearing is necessary, I would like one.”  Though conditionally stated, this was nonetheless a clear request for a hearing. The administrative law judge’s position that “it is not necessary to have a hearing to amend or destroy an indicated report,” is unpersuasive, because Petitioner is not speaking about the procedure as it applies to all perpetrators, generally, but rather as it applies to him. Petitioner begins the letter by asking for the indicated report to be expunged. The condition he places on the hearing request is, essentially, in the event that the indicated report is not expunged then he would like a hearing. More importantly, an ambiguous statement by a named perpetrator is a very weak ground on which to base denial of a hearing to which Petitioner had “an absolute right.” C.S., 879 A.2d at 1280. Petitioner requested a hearing, but he was never afforded one. The Department should have provided Petitioner some form of a hearing, and its failure to do so resulted in Petitioner’s name being placed on the ChildLine Registry for over 17 years.

FLSA - Uber driver - "employee" - "employer"

Razak v. Uber Technologies – ED Pa. – Sept. 13, 2017

https://www.paed.uscourts.gov/documents/opinions/17D0649P.pdf

If apps be the food of the future, log on! With apologies to Shakespeare––the opening line of Twelfth Night, “If music be the food of love, play on” providing inspiration––app based ride-sharing is a disruptive business model in search of a legal theory.1

The courts that have dealt with litigation arising out of ride-sharing technology have struggled to find an appropriate legal doctrine to fit these novel commercial relationships. For this case, one challenge is determining what type of activity includes a driver being “on call” for an assignment, and whether this status is “compensable.” Plaintiffs Ali Razak (“Razak”), Kenan Sabani (“Sabani”), and Khaldoun Cherdoud (“Cherdoud” and, together with Razak and Sabani, “Plaintiffs”) have brought individual and representative claims against Gegen, LLC and its sole member, Uber Technologies, Inc.  for violations of the federal minimum wage and overtime requirements under the Fair Labor Standards Act, 29 § U.S.C. 201 et seq. (“FLSA”), and parallel Pennsylvania state wage and labor laws.

Before the Court is Uber’s Motion for Partial Summary Judgment on the limited question of whether—assuming, for purposes of this Motion only, that Plaintiffs qualify as “employees” and Uber as an “employer” under the FLSA2 —the time they spent Online the Uber App is compensable work time under the FLSA, and by extension, the PMWA.

contracts - release of worker's comp. claim not a waiver of FMLA claims

Zuber v. Boscov’s – 3d Cir. – September 12, 2017

http://www2.ca3.uscourts.gov/opinarch/163217p.pdf

Held: Compomise & Release that employee signed to settle a worker’s comp. claim did not act as a waiver of his Family and Medical Leave Act cause of action.  “A long line of Pennsylvania cases has held that a release covers only those matters which may be fairly said to have been within the contemplation of the parties when the release was given.” Restifo v. McDonald, 230 A.2d 199, 201 (Pa. 1967).   The terms of the C&R make it clear that the release in that document was not meant to apply cover the FMLA or common law claims.

corporations - counsel - appeal of MDJ judgment by a non-attorney is a legal nullity

Iannoco v. Fuelin Fine Auto Sales – 59 Northampton 689

https://www.northamptoncounty.org/DPTCRTADMN/Court%20Opinions%20Files/C-0048-CV-2015-7059.pdf#search=%22auto%20sales%22

Appeal from MDJ money judgment filed by a corporate agent or office is a ineffective, a legal “nullity,” since a corporation can act in court only through counsel.   Petition to strike appeal granted.

In Pennsylvania, “a corporation may appear and be represented in our courts only by an attorney duly admitted to practice” law. Walacavage v. Excell 2000, Inc., 480 A.2d 281, 285 (Pa. Super. 1984). There are only two exceptions to this rule, and neither is applicable here. First, a corporation does not require an attorney if permitted to represent itself by rule or statute. Id. at 284. There are no such rules or statutes applicable here. n. 2

When a corporation files an appeal to the Court of Common Pleas without an attorney, the filing is a nullity, rendering the Court without jurisdiction to hear it and requiring the Court to strike the appeal. See Spirit of the Avenger Ministries v. Commw., 767 A.2d 1130, 1130-31 (Pa. Commw. 2001); see also McCain v. Curione, 527 A.2d 591, 594 (Pa. Commw. 1987) (agreeing with two Courts of Common Pleas that “proceedings commenced by persons unauthorized to practice law are a nullity”).

n. 2

While Pa.R.C.P.M.D.J. No. 207(A)(3) authorizes a corporation to be represented by an officer, employee, or authorized agent of the corporation in magisterial district court proceedings, there is no Pennsylvania Rule of Civil Procedure that authorizes the same in an appeal from such a proceeding or in a civil action before the Court of Common Pleas. Further, while Plaintiff argues that the holding in Harkness v. Unemployment Compensation Board of Review, 920 A.2d 162 (Pa. 2007) carved out an applicable exception to the general rule, the Court disagrees. In that case, the Pennsylvania Supreme Court held that a nonattorney representative is permitted to represent a corporate employer in unemployment compensation proceedings before a referee for reasons peculiar to those proceedings. Id. at 168-69. None of the reasons cited by the court in Harkness apply with regard to a civil action before the Court of Common Pleas

UC - vol. quit - follow-the-spouse - maintenance of family unit alone not good cause

Rodriguez v. UCBR – Cmwlth. Court – September 7, 2017 (2-1 decision)

http://www.pacourts.us/assets/opinions/Commonwealth/out/903CD16_9-7-17.pdf?cb=1

Held:  A desire to maintain the family unit, alone, is insufficient to establish a necessary and compelling reason to leave employment. Schecter v. UCBR, 491 A.2d 938, 941 (Pa. Cmwlth. 1985).

Claimant and children moved from Pa. to Florida to join her husband, who had been awarded a full-scholarship to a theological school, conditioned on his move to Florida with his entire family.  Husband testified that “there was a good prospect of full-time employment as a minister following the completion of the ministerial program” and that he would receive a  bachelor’s degree when he finished.   Husband was “ able to maintain some level of employment as a truck driver in Pa. but was unable to obtain a permanent position.   His job possibilities were limited by a past criminal conviction.  His relocation to Florida was not done in order to accept an offer of employment in a highly-specialized field with a limited job market or because his job was going to be eliminated.   He had no firm job offer contingent on his completing the schooling in Florida.

“Under the “follow-the-spouse” doctrine, a claimant’s burden is two-fold. Wheeler v. UCBR, 450 A.2d 775, 778 (Pa. Cmwlth. 1982). First, the claimant must establish that the move created insurmountable commuting problems or that maintaining two residences would result in economic hardship. Glen Mills, 665 A.2d at 564. Under the second inquiry, the claimant must also demonstrate that circumstances beyond the control of the claimant’s spouse caused the necessity to relocate, the decision was reasonable and made in good faith, and that the relocation was not a result of the spouse’s personal preferences. Pennsylvania Gaming Control Bd., 47 A.3d at 1267; Id.

The court found that claimant satisfied the first prong of this test but not the second.  There was an “insurmountable commuting problem for Claimant with regard to her Pennsylvania job. See Glen Mills, 665 A.2d at 564 (holding that it is obviously unreasonable to commute five hours round trip each day). Accordingly, Claimant sustained her burden of demonstrating an insurmountable commuting problem and, therefore, satisfied the first prong of the “follow-the-spouse” doctrine. In order to satisfy the second prong of the analysis, a claimant must demonstrate that circumstances beyond her spouse’s control caused the necessity to relocate, that the decision was reasonable and made in good faith, and that the relocation was not a result of the spouse’s personal preferences. We note that the desire to maintain the family unit, alone, is insufficient to establish a necessary and compelling reason to leave employment. Schecter v. Unemployment Comp. Bd. of Review, 491 A.2d 938, 941 (Pa. Cmwlth. 1985). On the other hand, a claimant may meet her burden by demonstrating that the relocating spouse’s position has been eliminated. Other examples of evidence offered to meet this burden have included a limited job market due to the highly specialized nature of a spouse’s occupation, 7 a spouse’s military orders,8 a spouse’s medical needs, 9 or evidence that a spouse’s job will be eliminated.10

7 Glen Mills, 665 A.2d at 564. 8 Pennsylvania Gaming Control Bd., 47 A.3d at 1270-71. 9 Steck v. UCBR, 467 A.2d 1378, 1380 (Pa. Cmwlth. 1983). 10 See Mechanicsburg Area Sch. Dist. v. UCBR, 551 A.2d 401, 402-03 (Pa. Cmwlth. 1988)

The “objective of the Law . . . is to ensure that employees who become unemployed involuntarily are provided with some semblance of economic security.” Hamot Medical Center v. UCBR, 645 A.2d 466, 469 (Pa. Cmwlth. 1994). Thus, it is not the purpose of unemployment compensation to be a vehicle through which a family may finance a voluntary change of career or a desire for a spouse to obtain additional education. If husband had had a firm offer of employment when he completed the schooling, our decision may have been different.”

Dissent

We have long held that the Unemployment Compensation Law“was intended to be remedial legislation which is to be liberally and broadly construed…” Steck v. UCBR, 467 A.2d 1378, 1380 (Pa. Cmwlth. 1983) (citing Kleban v. UCBR, 459 A.2d 53, 55 (Pa. Cmwlth. 1983)).

In the “follow the spouse” context, we have recognized the unique nature of the family unit in situations where compelling reasons motivated the initial move in the first place:

While preservation of the family unit does not, in and of itself, give rise to necessitous and compelling reason under Section 402(b), [] we are not indifferent to its social desirability. Moreover, in the absence of statutory language mandating such application, we are disinclined to interpret the Law in a way which tends to be disruptive to family unity. In this case, we believe it is sufficient that the claimant has demonstrated a good faith desire to keep her family together, that her interest in preserving the family unit was irreconcilable with maintenance of her job due to the distance between her's [sic] and her husband's places of employment, and that her husband's decision to relocate was motivated by compelling factors. Stevens v. UCBR, 473 A.2d 254, 257 (Pa. Cmwlth. 1984) (emphasis added).

In the present case, the Majority has shown no such “disinclin[ation],” despite no legislative direction otherwise. Coupled with the “compelling factors” before us (equally as compelling as those in Stevens), the Majority’s interpretation and application of the “follow the spouse” doctrine is erroneous and, for this family, quite harmful. 2 As there is no indication that this is consistent with legislative intent, I am compelled to dissent.

consumer protection - UTPCPL - representation - justifiable reliance

Zajick v. Cutler Group – Superior Court – August 31, 2017

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20-%20Affirmed%20-%2010322921423277537.pdf?cb=1

There was “no evidence” that homeowner “justifiably relied on representations” from builder regarding construction on the specific home or alleged defective stucco, “as is required to bring a privarte cause of action under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §201-2, et seq.

Plaintiff homeowner never had any communication with builder about the home.   Homeowner claims were based solely in reliance  on builder’s “reputation and general statements from a sales rep. about homes in the same development.  Builder constructed home in 2003, sold it to initial buyer, who sold it to Plaintiff.

In order to bring a private cause of action under the UTPCPL, “a plaintiff must show that he justifiably relied on the defendant's wrongful conduct or representation and that he suffered harm as a result of that reliance.” Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438 (Pa. 2004) (emphasis added).   Strict technical privity is not required to bring a cause of action under the UTPCPL, and it was not a factor in this case. Valley Forge Towers Smith Condominium v. Ron-Ike Foam Insulators, Inc., 574 A.2d 641, 647 (Pa. Super. 1990).   Rather, the trial court granted summary judgment after concluding that Appellant “failed to establish any representations made by [builder] that rise to the level of representations upon which reasonable justifiable reliance is foreseeable.”

In Adams v. Hellings Builders, Inc., 146 A.3d 795, 801 (Pa. Super. 2016), the court held that strict technical privity is not required to assert a cause of action under the UTPCPL, rather the “focus is on whether reliance on alleged misrepresentations was specially forseeable.”  In that case, the home did not comply with the stucco standards which were set out in the specific written contract between builder and initial homeowner, who then sold to plaintiffs.  Plaintiff there alleged that the sales agreement between the builder and the initial purchasers represented that the home would include a three-coat stucco system according to International Residential Code Standards.   However, upon inspection by plaintiff’s expert, the stucco system did not comply with those standards.   The plaintiffs alleged that they had justifiably relied on this sales agreement when they decided to purchase the home.   The court determined that those facts were sufficient upport a private cause of action under the UTPCPL, because the complaint alleged that the builder made representations about the home and stucco system in the sales agreement, and it was foreseeable that plaintiffs would justifiably rely on those representations. Adams, supra at 801-802.

In contrast, plaintiff here did not produce any evidence that builder made representations about the specific home at issue or the alleged defective stucco to her or the previous purchasers. In fact, hhomeowner conceded “she never had any communication with builder regarding this home prior to purchasing it from the initial buyer.  Rather,, plaintiff here

relied on (1) the “reputation” of the builder as an “experienced, reliable, reputable builder of custom homes[;]” (2) the experience homeowner nt had in purchasing and inhabiting her previous home, which was built by same builder and did not exhibit latent construction defects; and (3) “the representations of builder’s sales representative as to the construction and quality of the homes in the the same development as the home at issue, when homeowner was in the process of purchasing her previous home directly from Cutler and toured homes there.

The court held that  “there is no legal basis to allow [homeowner’s] claim to move forward based solely on her reliance on builder’s  reputation and general statements from a sales representatives about homes in the same development. Since homeowner failed to establish that builder made any representations about her specific home or the alleged defective stucco, the trial court properly found that she failed as a matter of law to present evidence that she “justifiably relied” on “representations” of builder.