employment - employee information - employer duty to protect - damages

Dittman v. UPMC – Pa. Supreme Court – November 21, 2018

Held:

[A]n employer has a legal duty to exercise reasonable care to safeguard its employees’ sensitive personal information stored by the employer on an internet-accessible computer system.

Under Pennsylvania’s economic loss doctrine, recovery for purely pecuniary damages is permissible under a negligence theory provided that the plaintiff can establish the defendant’s breach of a legal duty arising under common law that is independent of any duty assumed pursuant to contract.

mootness

Clean Air Council v. County of Allegheny – Cmwlth. Court – November 19, 2018 – unreported* memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/515CD18_11-19-18.pdf?cb=1

This case is not of interest as far as substance, but it has the following discussion of the doctrine of mootness.

The mootness doctrine requires an actual case or controversy to exist at all stages. It is a well-established principle of law that this Court will not decide moot questions. The articulation of the mootness doctrine . . . was acknowledged in . . . In re Gross, . . . 382 A.2d 116 ([Pa.] 1978) as follows: The problems arise from events occurring after the lawsuit has gotten under way-changes in the facts or in the law-which allegedly deprive the litigant of the necessary stake in the outcome. The mootness doctrine requires that ‘an actual controversy must be extant at all stages of review. . . .’ G. Gunther, Constitutional Law 1578 (9th ed. 1975). [In re Gross], 382 A.2d at 119.

An issue can become moot during the pendency of an appeal due to an intervening change in the facts of the case or due to an intervening change in the applicable law. In re Cain, . . . 590 A.2d 291, 292 ([Pa.] 1991). Dep’t of Envtl. Prot. v. Cromwell Twp., Huntingdon Cty., 32 A.3d 639, 651 (Pa. 2011). Further, [the Pennsylvania Supreme] Court has repeatedly recognized two exceptions to the mootness doctrine: (1) for matters of great public importance and (2) for matters capable of repetition, which are likely to elude review.

Moreover, we have found this exception applicable where a case involves an issue that is important to the public interest or where a party will suffer some detriment without a court decision.   Pilchesky v. Lackawanna Cty., 88 A.3d 954, 964-65 (Pa. 2014) (citation omitted).

                                                              

Under the mootness doctrine, ‘an actual case or controversy must be extant at all stages of review, not merely at the time the complaint is filed.’ Pub. Defender’s Office of Venango [Cty.] v. Venango [Cty.] Court of Common Pleas, . . . 893 A.2d 1275, 1279 ([Pa.] 2006) [(quoting Pap’s A.M. v. City of Erie, . . . 812 A.2d 591, 599-600 ([Pa.] 2002))]. The existence of a case or controversy requires ‘a real and not a hypothetical legal controversy and one that affects another in a concrete manner so as to provide a factual predicate for reasoned adjudication. . . .’ City of Phila[.] v. [Se. Pa. Transp. Auth.], 937 A.2d 1176, 1179 (Pa. Cmwlth. 2007). Harris v. Rendell, 982 A.2d 1030, 1035 (Pa. Cmwlth. 2009), aff’d, 992 A.2d 121 (Pa. 2010). Further, [i]t is well settled that the courts ‘do not render decisions in the abstract or offer purely advisory opinions.’ Pittsburgh Palisades Park, LLC v. Commonwealth, . . . 888 A.2d 655, 659 ([Pa.] 2005). Judicial intervention ‘is appropriate only where the underlying controversy is real and concrete, rather than abstract.’ City of Phila[.] v. Commonwealth, . . . 838 A.2d 566, 577 ([Pa.] 2003). Harris, 982 A.2d at 1035. “The key inquiry in determining whether a case is moot is whether the court or agency will be able to grant effective relief and whether the litigant has been deprived of the necessary stake in the outcome of the litigation.” Consol Pa. Coal Co., LLC v. Dep’t of Envtl. Prot., 129 A.3d 28, 39 (Pa. Cmwlth. 2015)

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b)

UC - appeal - waiver of issue - UCBR argument held to be "sophistry"

Patnesky v. UCBR – Cmwlth. Court (2-1) – unreported* memorandum decision

http://www.pacourts.us/assets/opinions/Commonwealth/out/591CD17_10-29-18.pdf?cb=1

The Court held that the employer failed to prove willful misconduct of a state driver’s license examiner who issued a replacement ID card for the “incapacitated” child of a co-worker.   The Court said that the claimant’s conduct did not violate a work rule, which it found to be ambiguous, thus resulting, at worst, in an inadvertest or negligent violation of the rule rather than the required deliberate violation.   It is well established that noncompliance with a work rule in itself does not amount to a “deliberate violation.” Oyetayo, 110 A.3d at 1121; Chester Community Charter School v. UCBR, 138 A.3d 50, 54 (Pa. Cmwlth. 2016) (“[a]n inadvertent or negligent violation of an employer’s rule may not constitute willful misconduct.”).   

UCBR argument that claimant had waived an issue was held to be “sophistry.”

The more significant part of the opinion  rejected the Board’s position that claimant had waived an argument. 

At the outset, we address the Board’s waiver argument, which it makes in virtually every brief it files with this Court. The Board asserts that because the statement of questions in Claimant’s brief raises only the issue of whether Claimant committed disqualifying willful misconduct under Section 402(e) of the Law, Claimant cannot challenge the Referee’s “findings of fact,” which in this case include a statement that Claimant violated Employer’s confidentiality policy because [the incapacitated child] “was not present during the transaction.” . . . .Finding of Fact No. 6.   

By couching the legal conclusion that Claimant violated the policy as a “finding of fact,” the Referee attempted to place the proverbial rabbit in the hat. The Board unquestioningly adopted this “finding of fact” and now asserts that the ultimate legal issue in this case is beyond appellate review. This is sophistry.

Whether Claimant’s actions constituted disqualifying willful misconduct is a question of law fully reviewable by this Court. Oyetayo v. UCBR, 110 A.3d 1117, 1122 (Pa. Cmwlth. 2015). In deciding that legal issue, this Court must determine whether Claimant’s actions.  violated Employer’s policy as was concluded by the Board. We reject the Board’s waiver argument and proceed to the merits of Claimant’s appeal.

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

UC - fair hearing - unrepresented party - duty of referee to assist - "full and fair hearing"

Scott v. UCBR – Cmwlth. Court – October 19, 2018 – unreported* memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/419CD18_10-19-18.pdf?cb=1

Held:  Case remanded because claimant was not afforded a “full and fair hearing.”   The referee “precluded claimant from introducing potentially relevant evidence that would support his claim that he was discharged” rather than had quit his job.  The referee “could have taken a few minutes to review the additional documents [that] Claimant had submitted to the Service Center, given Claimant an opportunity to explain their relevance, and compared those documents to the claims [that] Claimatn sought to introduce, before precluding the evidence.”

Admission of evidence

In UC proceedings, the Referee has “wide latitude” regarding the admission of evidence. Creason v. UCBR, 554 A.2d 177, 179 (Pa. Cmwlth. 1989). However, the Referee “is not free to disregard rules of evidence and if evidence is not relevant[,] the [R]eferee may exclude it.” Id. Despite this broad discretion, the Referee “may not improperly refuse to accept relevant competent and material evidence.” Healey v. UCBR, 387 A.2d 1025, 1027 (Pa. Cmwlth. 1978).

Duty to assist pro se claimant

The [R]eferee has a responsibility . . . to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed to “insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits.” The [R]eferee, of course, need not advise a party on evidentiary questions or on specific points of law but must act reasonably in assisting in the development of the necessary facts, and any failure to develop an adequate record must be prejudicial to the claimant and not mere harmless error or else a reversal will not be found. Bennett v. UCBR, 445 A.2d 258, 259-60 (Pa. Cmwlth. 1982); see also 34 Pa. Code § 101.21(a).  While the Referee is not obligated to advocate on behalf of a pro se claimant, see Stugart v. UCBR, 85 A.3d 606, 609 (Pa. Cmwlth.  2014), the Referee is required to reasonably assist a pro se claimant in developing the necessary facts.

In this case, a key issue before the Referee was whether Claimant was discharged from his employment or whether he voluntarily quit.   Rather than assist Claimant, however, the Referee precluded Claimant from introducing potentially relevant evidence that would support his claim that he was discharged.   Because the Referee excluded both the missing Service Center documents and the emails, we do not know the extent of any overlap between the documents and the emails or whether any of that evidence was relevant to the issues before the Referee. The Referee could have taken a few minutes to review the additional documents Claimant had submitted to the Service Center, given Claimant an opportunity to explain their relevance, and compared those documents to the emails Claimant sought to introduce before precluding the evidence. Because the Referee 9 failed to take these steps, we conclude that she did not “act reasonably in assisting in the development of the necessary facts.” Hackler v. UCBR, 24 A.3d 1112, 1115 (Pa. Cmwlth. 2011).

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

courts - jurisdiction - foreign corporation - registration in Pa. - consent

Murray v. American Lafrance, LLC – Pa. Super. – reported, published – September 25, 2018

majority        

dissent

Held:  A corporation consents to jurisdiction of Pennsylvania courts when it registers as a foreign corporation under 42 Pa. C.S. 5301 (a) (2) (i-iii).

From the opinion

We observe that whether a foreign corporation consents to general personal jurisdiction in Pennsylvania by registering to do business in the Commonwealth is a matter of first impression in this Court. Our review of the caselaw has revealed that neither this Court nor our Supreme Court has had the occasion to determine whether, post-Daimler, registering to do business as a foreign corporation in the Commonwealth constitutes consent for the purposes of exercising general personal jurisdiction. However, Bors v.  Johnson & Johnson, 208 F. Supp. 3d 648 (E.D. Pa. 2016), provides a persuasive, well-reasoned analysis and we cite it with approval.

In Bors, supra, the district court considered whether Bane v. Netlink, Inc., 925 F.2d 637 (3d Cir. 1991),7 remained good law or whether Daimler eliminated consent by registration under section 5301 as a basis for jurisdiction. See Bors, supra at 653-54. The Bors court reasoned that “Pennsylvania’s statute specifically advises the registrant of the jurisdictional effect of registering to do business[,]” and concluded that “[c]onsent remains a valid form of establishing personal jurisdiction under the Pennsylvania registration statute after Daimler.” Id. at 655; see also Hegna v. Smitty’s Supply, Inc., 2017 WL 2563231, at *4 (E.D. Pa. filed June 13, 2017) (“conclud[ing] that, by registering to do business under § 5301, Smitty’s consented to general personal jurisdiction in Pennsylvania and that its consent is still valid under Goodyear [Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011),] and Daimler.”).

In this case, Appellee registered as a foreign corporation to do business in Pennsylvania. (See Preliminary Objections, Exhibit B, at 1). In doing so, we hold that it consented to general personal jurisdiction in Pennsylvania. See Sulkava, supra at 889; Bors, supra at 655; see also Bane, supra at 640. Therefore, based on the relevant caselaw, and the language of section 5301(a), we conclude that the trial court erred when it dismissed these actions for lack of personal jurisdiction.8 Accordingly, we vacate the orders sustaining the preliminary objections, and remand these cases to the trial court.

debt collection - FDCPA -false, misleading - statement about IRS

Schultz v. Midland Credit Management – 3d Cir.- September 24, 2018

http://www2.ca3.uscourts.gov/opinarch/172244p.pdf

A statement in a debt collection letter to the effect that forgiveness of the debt may be reported to the Internal Revenue Service constitutes a violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §1692 et. seq. , particularly the threat to take any action that cannot legally be taken or that is not intended to be taken. . . . The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. §§ 1692e(5), (10).

Whether a collection letter is “false, deceptive, or misleading” under § 1692e is determined from the perspective of the “least sophisticated debtor.” Brown, 464 F.3d at 453.

Here, the reporting requirement under the Internal Revenue Code is wholly inapplicable to the Schultzes’ debts because none of them totaled $600 or more, and IRS regulations clearly state that only discharges of debt of $600 or more “must” be included on a Form 1099-C and filed with the IRS. See 26 C.F.R. § 1.6050P-1(a).   By including the reporting language on collection letters addressing debts of less than $600, we believe that the least sophisticated debtor might be persuaded into thinking that the discharge of any portion of their debt, regardless of amount discharged, may be reportable.

Based on the foregoing, we will reverse the May 8, 2017, Order of the District Court as we find that the Schultzes have pled sufficient factual allegations that state a plausible claim upon which a court may grant relief under the FDCPA. We will therefore remand for further proceedings consistent with this opinion.

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LT - security deposit - tenant's new address - list/proof of damages

Nitardy v. Chabot – Pa. Superior Court – published opinion – Septembwr 14, 2018

majority (2-1)

concurring/dissenting

Court affirmed in part, vacated in part, and remanded decision of lower court in favor of tenant who sued concerning security deposit.

Oral modification of written lease

“The law is well settled that parties may modify a written lease agreement by a subsequent oral agreement, and this modification may be shown by words or conduct. Bonczek v. Pascoe Equip. Co., 450 A.2d 75, 77 (Pa.Super. 1982). For an oral modification to be valid, it must be based upon valid consideration and proved by evidence that is “clear, precise, and convincing.” Id. (citation omitted).”

Failure to provide written list of any damages - specificity

The Landlord and Tenant Act specifically provides that a landlord shall “within thirty days of termination of a lease. . . provide a tenant with a written list of any damages to the leasehold premises for which the landlord claims the tenant is liable.” 68 P.S. § 250.512(a). . . .When the landlord delivers the “written list of any damages,” the landlord shall return the security deposit less “the actual amount of damages to the leasehold premises caused by the tenant.” Id. . . . . If the landlord fails to pay the difference between the security deposit and the “actual damages to the leasehold premises,” the landlord shall be liable for double the amount of the security deposit less actual damages to the leasehold premises. 68 P.S. § 250.512(c).

Since the Act requires that the landlord return the security deposit less the “actual damages” to the property, the “written list of any damages” must be specific enough so that the landlord can value the “actual damages” and notify the tenant of the basis for deducting amounts from the security deposit. In this case, the trial court found the “written list of any damages” that Landlord provided to Tenants was too vague to constitute an appropriate “written list of any damages.” In particular, the trial court found that a “vague list, without accompanying values as to each item, will not suffice.” . . . .We agree.

Tenant’s failure to timely provide new address in writing not dispositive

Subsection 250.512(e) states that “[f]ailure of the tenant to provide the landlord with his new address in writing upon termination of the lease or upon surrender and acceptance of the leasehold premises shall relieve the landlord from any liability under [section 250.512,]” which is the section relating to security deposits discussed supra. 68 P.S. § 250.512(e).

The trial court declined to apply this provision, stating that the parties remained in continual email contact, the Tenants evantually provided Landlord with a forwarding address, and Landlord had the mailing information needed to comply with the security deposit provisions of the Act in ample time to do so. . . . . Further, the court stated, “the suggestion that [Landlord] did not return any of [the Tenants’] security deposit because he did not have their forwarding address is belied by the record in this case.” Id. We see no basis to disturb the trial court’s ruling.

We see no basis to disturb the trial court’s ruling. The record supports its factual findings. Further, in the lone reported case by this Court construing subsection 250.512(e), we rejected a landlord’s attempt to use subsection  250.512(e) as a shield when there was no evidence in the record indicating that the failure to return the security deposit was due to the landlord’s not knowing where to mail the deposit. Adamsky v. Picknick, 603 A.2d 1069, 1071 (Pa. Super. 1992) (“[W]e find the lack of notice argument is tenuous at best since appellant’s reason for withholding the deposit was not because he did not have appellees’ new address[;] rather, he withheld it because he maintained there were damages for which he should be compensated.”).  Therefore, we hold that the trial court properly declined to apply subsection 250.512(e) in this case.

Landlord’s counterclaim for damages – burden of proof

The Act places on the landlord the burden of proof as to actual damages caused by a tenant to the leasehold premises. 68 P.S. § 250.512(c).   However, note that a landlord’s right, pursuant to the Lease, to require a tenant to pay for damage to a property may be separate and distinct from a landlord’s right to deduct amounts for damage from the security deposit pursuant to 68 P.S. § 250.512(a). If a landlord fails to meet the requirements of 68 P.S. §250.512(a), he still has a claim pursuant to the Lease. He just cannot deduct the amounts from the security deposit and must collect the amounts directly from the tenant.

housing - disabled tenant - reasonable accommodation - Fair Housing Amendments Act

Vorchheimer v. Philadelphia Owners Assn. – 3d Cir. – September 5, 2018

http://www2.ca3.uscourts.gov/opinarch/171738pa.pdf

Held:  Under the Fair Housing Amendment Act, 42 U.S.C. §3604(f)(2), (f)(2)(A), a disabled tenant has a right to a reasonable housing accommodation that she needs to use and enjoy her home. But if her landlord offers her an alternative that likewise satisfies that need, she has no right to demand the particular accommodation that she wants.

custody - standing - in loco parentis - stepfather in U.S. military - physical absence from home

M.L.S. v. T.H.-S – Superior Court – Augusut 29, 2018 – reported opinion

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Affirmed%20%2010367963841427432.pdf?cb=1

Held:  Stepfather (SF) of 11 year-old child stands in loco parentis to child, even though SF is in active military service and lives apart from the child for the majority of time, where:

            - SF listed child as a dependent and received benefits from SF’s military service (15 years in the US Navy)

            - SF spoke with child on phone every other day while stationed in the U.S.

            - SF undertook many parental duties, as permitted by his military service, and served in many respects in place of child’s deceased father

Physical absence from home due to military services is “merely one factor” concerning in loco parentis.

SF both assumed parental status and discharged parental duties.

labor - employee v. indpt. contractor - beauty salon

A Special Touch v. Dept. of Labor & Industry – Cmwlth. Court – August 23, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/1181CD16_8-23-18.pdf?cb=1

A Special Touch, a beauty salon, petitions for review of an adjudication of the Department of Labor and Industry (Department) that imposed an unemployment compensation tax on it for five persons who worked at the salon in a variety of positions.

In its adjudication, the Department classified these five workers as employees, but it classified five other workers who worked there in similar positions as independent contractors.

Because all ten workers were “customarily engaged in an independently established trade, occupation, profession or business” under Section 4(l)(2)(B) of the Unemployment Compensation Law (Law),2 we reverse the Department’s holding in that respect.

consumer - debt collection - FDCPA - use of true name

Levins v. Health Care Recovery Group – 3d Cir. – August 22, 2018

http://www2.ca3.uscourts.gov/opinarch/173330p.pdf

 Elaine and William Levins allege that Healthcare Revenue Recovery Group LLC (“HRRG”) violated  §§ 1692e(14), 1692d(6), and 1692e(10) of the FDCPA by leaving telephone voice messages that did not use its true name, did not meaningfully disclose its identity, and used false representations and deceptive means to collect or attempt to collect a debt or obtain information about a consumer.

 In particular, the Levinses complain that voicemail messages in which HRRG went by the name of “ARS” were insufficient to identify it as HRRG or even as “ARS ACCOUNT RESOLUTION SERVICES,” which is an alternative business name used by HRRG. HRRG moved to dismiss the complaint, as amended, for failure to state a claim, and the District Court granted that motion.

Held: the Levinses have stated a plausible claim that HRRG violated § 1692e(14)’s “true name” provision, but they have not stated plausible claims under §§ 1692d(6) or 1692e(10).

housing - sec. 8 - recertification - false information - intent

MaCool v. Berks County Housing Authority – July 30, 2018 – unpublished* memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/1384CD17_7-30-18.pdf?cb=1

Held:  Where tenant “unequivocally...did not provide true and correct and complete information on her recertification forms,” the Housing Authority had the right and discretion to remove  the tenant from the sec. 8 program, regardless of the trial court’s finding that the tenant did not intend to lie.

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

IFP

Thompson v. Thompson – Pa. Super. – May 8, 2018 – published opinion

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20ReversedVacatedRemanded%20%2010353573036589259.pdf?cb=1

Held:  Denial of IFP petition reversed, where party’s counsel filed praecipe under Pa. R.C.P. 240(d)(1).

When a counseled praecipe to proceed in forma pauperis is filed, the granting of such status is administrative. “If the party is represented by an attorney, the prothonotary shall allow the party to proceed in forma pauperis upon the filing of a praecipe which contains a certification by the attorney that he or she is providing free legal service to the party and believes the party is unable to pay the costs.” Pa.R.C.P. 240(d)(1). If the trial court does not believe the averments in a praecipe to proceed in forma pauperis, the court is required to hold a hearing to determine the veracity of the allegations contained in the praecipe. Crosby Square Apartments v. Henson, 666 A.2d 737, 738 (Pa. Super. 1995) (citation omitted).

UC - voluntary quit - voluntary layoff option proviso of sec. 402(b)

Phila. Regional Port Authority v. UCBR – July 20, 2018 – en banc – reported decision

http://www.pacourts.us/assets/opinions/Commonwealth/out/1106CD17_7-20-18.pdf?cb=1

Held:  Claimant was eligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law) because she opted to participate in a voluntary separation incentive program offered by Employer.

The Voluntary Layoff Option (VLO) Proviso of Section 402(b) of the Law states as follows: An employe shall be ineligible for compensation for any week – *** (b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature…Provided further, That no otherwise eligible claimant shall be denied benefits for any week in which his unemployment is due to exercising the option of accepting a layoff, from an available position pursuant to a labor-management contract agreement, or pursuant to an established employer plan, program or policy[.] 43 P.S. §802(b).

The court relied on the Supreme Court’s ruling in Diehl v. UCBR, 57 A.3d 1209 (Pa. 2012).   Recognizing that the Law does not define “layoff,” the Supreme Court concluded that the term should be construed consistent with “common parlance,” which encompasses “both temporary and permanent separations initiated by the employer.” Diehl, 57 A.3d at 1218 . It then considered whether an early retirement plan offered in the context of a workforce reduction is the equivalent of “an option of accepting a layoff.” The Supreme Court concluded that they were the same, stating “Given that we must interpret eligibility sections broadly in favor of the employee, we find no language that prevents the interpretation of the term layoff to include this employer-initiated, early retirement packages [sic] offered pursuant to a workforce reduction. Diehl, 57 A.3d at 1222.

“The plain language of the VLO Proviso does not support Employer’s contention that a “plan” must be one that targets specific employees, or positions, 12 and must have been agreed to by the separating employee in advance of its need. Neither Diehl nor its progeny support Employer’s proffered requirements. Claimant accepted a layoff from an available position pursuant to Employer’s Voluntary Separation Incentive Program. As the Board correctly determined, Claimant is eligible for benefits under the VLO Proviso.”

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housing - fair housing - rental due date - date of receipt of disability benefits

Fair Housing Rights Center v. Morgan Properties – ED Pa. – June 29, 2018 – (24 pp.)

Defendant’s motion for summary judgment denied on Plaintiff’s claim that Defendant, by its policy of refusing to permanently adjust the rental due date of its apartments for SSDI recipients, violates the Fair Housing Amendments Act ("FHAA"), 42 U.S.C. §§ 3601-3619. FHRC argues that MPMC's policy violates the FHAA's "reasonable accommodation" provision of 42 U.S.C. § 3604(f)(3)(B), and that the policy has a disparate impact on the disabled in violation of 42 U.S.C. § 3604(f)(1)(A).

custody - incarcerated parents - due process

S.T. v. R.W. – Pa. Super. – June 29, 2018 – reported decision

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20VacatedRemanded%20%2010360248139872201.pdf?cb=1

Held: Incarcerated mother denied due process when lower court rejected her request for contact with the parties’ 9 year-old daughter, with whom mother, formerly a physician, had not had contact since her incarceration.  The trial court conducted an ex parte hearing without affording mother either notice that she could ask to be present or giving her an alternate meaningful opportunity to be heard.  The lower court also misapplied the current cutody law.

From the opinion:

Standard of review -  A question regarding whether a due process violation occurred is a question of law for which the standard of review is de novo and the scope of review is plenary. Commonwealth v. Tejada, 161 A.3d 313 (Pa. Super 2017) (quoting Commonwealth v. Smith, 131 A.3d 467, 472 (Pa. 2015)

Custody cases involve fundamental rights protected by due process - In custody hearings, parents have at stake fundamental rights: namely, the right to make decisions concerning the care, custody, and control of their child. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000). . . .and see also generally D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016). Due process must be afforded to parents to safeguard these constitutional rights. “Formal notice and an opportunity to be heard are fundamental components of due process when a person may be deprived in a legal proceeding of a liberty interest, such as physical freedom, or a parent’s custody of her child.” J.M. v. K.W., 164 A.3d 1260; 1268 (Pa. Super. 2017) (en banc) (quoting Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005) (emphasis added). It is well settled that “procedural due process requires, at its core, adequate notice, opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case.” Id., at n. 5 (citing Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005); see also Garr v. Peters, 773 A.2d 183, 191 (Pa. Super. 2001). “Due process is flexible and calls for such procedural protections as the situation demands”

Right of parent to appear in person – writ of habeas corpus ad testificandum -  Sullivan v. Shaw 650 A.2d 882, 884 (Pa. Super. 1994) - “Incarcerated prisoners who petition the court for visitation rights are entitled to a hearing, to notice of this hearing, and to notice of their right to request that they be present at the hearing, by means of a writ of habeas corpus ad testificandum.” Id. (Citing Vanaman v. Cowgill, 526 A.2d. 1226 (Pa. Super. 1987)). This holding has since been codified in both the Pennsylvania Rules of Civil Procedure and in the Schuylkill County Local Rules of Procedure.  The note to Pa.R.C.P. 1930.4(a)(“Service of Original Process in Domestic Relations Matters”) provides: “Original process served on an incarcerated person in a domestic relations action must also include notice of any hearing in such action and specific notice of the incarcerated [parent’s] right to apply to the court for a writ of habeas corpus ad testificandum.”  See also,  Rule 1930.3, which gives courts a means to accommodate any party or witness who may not be available to attend a hearing in person. The rule provides: “With the approval of the court J-S20012-18 - 12 - upon good cause shown, a party or witness may be deposed or testify by telephone, audiovisual or other electronic means at a designated location in all domestic relations matters.” Pa.R.C.P. 1930.3. Neither telephonic, nor audiovisual, nor electronic communication was even mentioned by the court in Sullivan. Rule 1930.3 now provides courts with a previously unavailable option.

The court’s solution in Sullivan v. Shaw 650 A.2d 882, 884 (Pa. Super. 1994), which allowed an incarcerated parent to file an “informal brief” is “outdated” and inadequate to address due process concerns -- An “informal brief” or “written statement” submitted prior to the trial cannot possibly equate a meaningful opportunity to be heard under the current state of our substantive and procedural laws.   Notice ensures that each party is provided adequate opportunity to prepare and thereafter advocate its position, ultimately exposing all relevant factors from which the finder of fact may make an informed judgment. Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005).   Parties cannot expose all the relevant factors if they cannot advocate for themselves in real time, i.e., cross-examine witnesses of the other party and respond to arguments.

The Etter factors -  In M.G. v. L.D. 155 A.3d 1083, 1093 (Pa. Super. 2017), we found the trial court should have considered factors unique to prison cases which were previously delineated in Etter v. Rose, 684 A.2d 1092, 1093 (Pa. Super. 1996).”   Without specifically stating so, in M.G. we acknowledged the Etter factors are now assimilated into § 5328(a) analysis under § 5328(a)(16). See P.J.P. v. M.M., 2018 Pa. Super. 100, 2018 WL 1979832 (Pa. Super. April 27, 2018) (holding that the shared custody factors set forth in Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998), which predated the 2011 amendments to the Custody Law, assimilated into the custody factors set forth in 23 Pa.C.S.A. § 5328(a)).

The Etter presumption did not survive the statutory amendments – Although the Etter factors have assimilated into our current Custody Law, the presumption set forth in Etter – that incarceration alone “is a basis for creation of a presumption, to be rebutted by the prisoner parent, that such visitation is not in the best interest of the child-- did not survive the amendments to the custody statutes.   The legislature, in amending our Custody Law, provided no such presumption in incarceration cases.  Our legislature contemplated when a presumption would arise, as well as how to treat parents’ criminal histories; it provided no such presumption against incarcerated parents. Indeed, not only is this presumption absent from our statutes, but any such presumption would run afoul of the advances our courts have made in proceedings conducted under the Juvenile Act, 42 Pa.C.S.A. § 6301, et seq. Our Judicial Dependency Court Benchbook references the Pennsylvania State Roundtable Dependent Children of Incarcerated Parents 2013 Workgroup Report. The report states: [I]n most cases, children benefit from visitation and contact with a parent who is incarcerated. Children feel enormous grief and loss when they are unable to maintain contact with a parent. It is almost the same when a parent has died. Children also worry about a parent that they cannot see or talk to on a regular basis. […] Visitation and contact can reduce some of their worries and sad feelings.

Held:  Because Mother was not notified of her right to request to be present, Mother’s was deprived her right to due process. Additionally, Mother was deprived her right to have her modification petition adjudicated under the current Custody Law’s analyses for physical and legal custody. Therefore, we vacate the trial court’s order in this matter and remand for a new hearing.

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UC - willful misconduct - disparate treatment

Allen v. UCBR – Cmwlth. Court – June 12, 2018 – reported, precedential decision

http://www.pacourts.us/assets/opinions/Commonwealth/out/1460CD17_7-12-18.pdf?cb=1

Held:  Claimant committed willful misconduct by violating employer rule prohibiting the use of profane, abuse, or threatening language toward fillow employees and others, even though both claimant and his supervisor used racial slurs in an exchange of emails. 

The referee, board, and court all upheld different consequences for Claimant, who was fired, and his supervisor, who was not, based on findings that claimant was the instigator of the altercation, and had used threatening language (including reference to a weapon).

From the opinion:

Disparate treatment is “an affirmative defense” that can excuse conduct that might otherwise be willful misconduct - a claimant who has engaged in willful misconduct may still receive benefits....” Geisinger Health Plan v. UCBR, 964 A.2d 970, 974 (Pa. Cmwlth. 2009).   

Disparate treatment is not proven where there is a difference in the alleged employee misconduct  -  Bays v. UCBR,  437 A.2d 72 (Pa. Cmwlth. 1981) (illegal work stoppage in which some were “ringleaders” and others were “reluctant participants”)

Disparate treatment based on race is improper... - In the seminal case, Woodson v. UCBR, 336 A.2d 867 (Pa. 1975), the employer discharged the claimant (and others) for excessive absenteeism. Our Supreme Court held that the employer did not prove willful misconduct because its work rule against excessive absenteeism had been enforced in a racially discriminatory manner. It held:”[W]e cannot sanction the Bureau’s acceptance of an employer’s standard which expects certain conduct from black employees, but not from white employees. The use of such a standard to determine unemployment benefits constitutes state action based on the racially discriminating policies of an employer. This is prohibited.”

Disparate treatment improper even where race is not involved -City of Beaver Falls v. UCBR, 441 A.2d 510 (Pa. Cmwlth. 1982), this Court considered the city’s inconsistent enforcement of its requirement that city employees had to live in the city.   Drawing on Woodson, 336 A.2d 867, we explained the need for consistent enforcement of a work rule as follows: The [Supreme] Court held that a standard of conduct which an employer may expect of an employee must be equally applied to both blacks and whites. We believe that such a consideration is equally applicable where racial discrimination is not involved. Beaver Falls, 441 A.2d at 512.  An employer’s “inconsistent enforcement of its [work rule] did not establish such a standard of conduct with which it could reasonably expect its employees to comply.” Id. Stated otherwise, a written work rule that is not enforced uniformly is no more than a piece of paper.”   Inconsistent enforcement of a work rule defeats the existence of the work rule. Beaver Falls, 441 A.2d 510.  An employer cannot pursue haphazard enforcement of its work rule and expect that rule to be dispositive of a claimant’s eligibility.   To be sure, an employer may change its enforcement policy from one of a lax posture to one of zero tolerance, but it must warn employees of the new strict enforcement policy.  

Employers have some discretion in deciding when to punish a rule violation - It is not the Board’s province to usurp the management prerogative of the employer, which must decide on a case-by-case basis what discipline to impose when a work rule infraction occurs. Geisinger, 964 A.2d 970 (holding that a discharge for multiple infractions of a computer policy did not render the work rule a nullity because other employees, with far fewer violations, were not discharged).

The Board overstated the holding in Bays -  Here, the Board stated that “Commonwealth Court has held that ‘the mere fact that one employee is discharged for willful misconduct and others are not discharged for the same conduct does not establish disparate treatment.’” Board Adjudication at 1 (quoting American Racing, 601 A.2d at 483) (emphasis added). In actuality, this quoted sentence was not the holding in American Racing but, rather, a characterization of the Bays decision, where there was a common thread to the willful misconduct of multiple employees, i.e., participation in a work stoppage. However, the employees acted differently during that work stoppage and, thus, were disciplined differently. This single sentence from American Racing, which overstates the principle established in Bays, is obiter dictum. The Board has erroneously made it the holding of American Racing, and it is not. . . .The holding in American Racing was, simply, that refusal to follow a directive constitutes willful misconduct, and there was no suggestion that insubordination was generally tolerated by the employer.

child abuse - expungement - reasons for decision - ALJ who wrote decision different from ALJ who conducted hearing

A.G. v. DHS – June 6, 2018 – unreported* memorandum decision – Pa. Cmwlth.

http://www.pacourts.us/assets/opinions/Commonwealth/out/965CD17_6-6-18.pdf?cb=1

A. G. (Mother) petitions for review of the Order of the Department of Human Services denying Mother’s appeal from an indicated report identifying her as a perpetrator of child abuse on the ChildLine and Abuse Registry (Registry) under the Child Protective Services Law (CPSL).

The Bureau adopted an Administrative Law Judge’s (ALJ) Recommendation, in which the ALJ found that Mother did not rebut, with her testimony, the presumption of abuse in Section 6381(d) of the CPSL, 23 Pa. C.S. § 6381(d). **

Mother argues the ALJ’s findings are not supported by substantial evidence and that the ALJ erred in applying the presumption.

Because the ALJ issuing the Recommendation did not also preside over the hearings at which the witnesses testified, and the bases for the ALJ discrediting Mother’s testimony are unclear, our ability to perform effective appellate review to determine whether the presumption in Section 6381(d) was properly applied is hampered. Accordingly, we vacate the Department’s Order adopting the ALJ’s Recommendation and remand for issuance of a new decision clearly setting forth the reasons for crediting/discrediting the evidence and a new order based upon those credibility determinations.

** Section 6381(d) provides: Prima facie evidence of abuse.--Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child. 23 Pa. C.S. § 6381(d).

================================

*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

children - mental health disabilities - S.R. v. DHS - MD Pa. 2018

S.R. v. Dept. of Human Services – M.D. Pa. – March 23, 2018

http://www.pamd.uscourts.gov/sites/pamd/files/opinions/172332dismiss.pdf

DHS motion to dismiss denied in case brought by a plaintiff class of “all Pennsylvania youth under the age of 21 who, now or in the future, are adjudicated dependent and have diagnosed mental health disabilities.”   

Plaintiffs alleged that there have been “systemic failures in the Pennsylvania Child Welfare and Medical Assistance programs. “

Section 1983

Counts I and II are brought pursuant to 42 U.S.C. § 1983. (“Section 1983”).    In Count I, Plaintiffs allege that Defendants have violated Title XIX of the Social Security Act (“Title XIX” or the “Medicaid Act”), 42 U.S.C. § 1396a(a)(10)(A) and 1396a(a)(43)(C). Title XIX, Section 1396a(a)(10)(A) requires a state plan for medical assistance to “provide for making medical assistance available” to a list of enumerated eligible individuals. Section 1396a(a)(43) 5 requires the state plan to “provide for informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance . . . of the availability of early and periodic screening, diagnostic, and treatment services.” Section 1396a(a)(43)(C) requires the plan to provide for arranging those Early and Periodic Screening, Diagnosis and Treatment (“EPSDT”) services.

In Count II, Plaintiffs allege that Defendants have violated Title XIX, Section 1396a(a)(8), which requires a state plan for medical assistance to “provide that all individuals wishing to make application for medical assistance under the plan shall have the opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.”

Americans with Disabilities Act

In Count III, Plaintiffs allege that Defendants have violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131(2), Section 504 of the Rehabilitation Act (“Section 504” or “RA”), 29 U.S.C. § 794, and their respective implementing regulations. Plaintiffs allege that the Defendants’ policies and practices fail to provide them with mental health services in the most integrated setting appropriate, and fail to afford equal access to other services to achieve stability and permanency based on their disabilities or the severity of their disabilities.

LT - MDJ court - jurisdiction - tax sale - no LT relationship

Assouline v. Reynolds – Pa. Superior – March 9, 2018

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Affirmed%20%2010345953333693798.pdf?cb=1

Held:  Judgment for possession in LT action before magisterial district justice (MDJ) upheld in favor of purchaser (P) at a tax sale, in spite of lack of landlord-tenant relationship between the parties.    The court rejected homeowner’s argument that P should have brought action in ejectment rather than LT action before MDJ.

++++++++++++++++++++++++

Editor’s note:  This is an awful decision, just wrong on the law, I think.

debt collection - FDCPA - SOL - date of violation v. date of discovery of violation

Roskiske v. Klemm – 3d Cir. – May 15, 2018

http://www2.ca3.uscourts.gov/opinarch/161668p.pdf

This appeal requires us to determine when the statute of limitations begins to run under the Fair Debt Collection Practices Act (FDCPA or Act), 91 Stat. 874, 15 U.S.C. § 1692 et seq.

The Act states that “[a]n action to enforce any liability created by this subchapter may be brought in any appropriate United States district court . . . within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d).

The United States Courts of Appeals for the Fourth and Ninth Circuits have held that the time begins to run not when the violation occurs, but when it is discovered. See Lembach v. Bierman, 528 F. App’x 297 (4th Cir. 2013) (per curiam); Mangum v. Action Collection Serv., Inc., 575 F.3d 935 (9th Cir. 2009).

We respectfully disagree. In our view, the Act says what it means and means what it says: the statute of limitations runs from “the date on which the violation occurs.” 15 U.S.C. § 1692k(d).

employment - prof. license - suspension - evidence in mitigation - ex parte evidence

Abruzzese v. State Board of Cosmetology – Cmwlth. Court – reported decision – April 156, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/1121CD17_4-16-18.pdf?cb=1

Held:  Indefinite suspension of cosmetologist’s license because of a single-count felony conviction was improper, under the following circumstances:

            - prior to the suspension, claimant applied for and was granted a license,

            - claimant’s application included information about her criminal conviction

            - the Board’s only evidence was three documents relating to the criminal case – no testimony

            - claimant presented substantial evidence in mitigation to a hearing examiner

            - hearing examiner recommended suspension of license, but immediate stay of suspension, along with 2-years probation

            - Board reversed hearing examiner, ordered indefinite suspension, without consideration of mitigating evidence or hearing examiner’s decision

            - Board abused its discretion in rejecting recommendation of hearing examiner.

Improper consideration of ex parte evidence

Board improperly found that patrons of cosmetology salon were in a “vulnerable state while receiving services” – during which time they were separated from their personal belongings, including possible controlled substances prescribed by their treating physician.  There was “zero evidence” of this in the case record.   “Board members may not fill the gaps in the evidentiary record by using their personal knowledge. Yi v. State Board of Veterinary Medicine, 960 A.2d 864, 869 (Pa. Cmwlth. 2008) (holding that the personal knowledge of board members is not a substitute for record evidence). Board members must rely only upon the evidence of record in rendering an adjudication. It is a requirement of due process that an agency base “its adjudication on evidence admitted at the hearing and not on matters that are not in evidence.” Campbell v. Bureau of Professional and Occupational Affairs, State Board of Medicine (Pa. Cmwlth., No. 44 C.D. 2014, filed July 8, 2014), slip op. at 7 (unreported). We hold that the Board erred as a matter of law and abused its discretion by assuming facts not in evidence when it rejected the recommendation of both the Bureau and the hearing examiner.”

Mitigation evidence – abuse of discretion in failing to consider – improper to require written evidence to support testimony

            -The Board erred failing to consider that it had granted applicant a limited license, with the knowledge that she had a criminal conviction.  Limited license requires “good moral character.”

            - The Board improperly discounted testimony of claimant and her relatives, which it found, without evidentiary support, was biased.

            - There is no requirement that testimony be supported by documents, which are not preferable to oral statements.  “Written documents are not preferable to oral statements, as the Board mistakenly believes. There is no such evidentiary principle. See Commonwealth ex rel. Park v. Joyce, 175 A. 422, 424 (Pa. 1934) (“[T]here is no rule preferring written to oral statements.”). A document needs to be produced only where the contents of the writing are at issue. . . .The best evidence rule does not apply where the matter to be proved exists independently of the writing. . . . Whether Licensee assisted law enforcement and participates in ongoing therapy are facts that exist independent of written documentation that might also be probative. The Board incorrectly invoked the best evidence rule, which requires the submission of documents only where the contents of those documents are at issue. This was palpable error on the part of the Board.”

consumer - contracts - exculpatory clauses - public policy

Vinson v. Fitness and Sports Clubs, Inc. – Pa. Superior – May 4, 2018

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Affirmed%20%2010353230736534220.pdf?cb=1

The Pennsylvania Supreme Court has held that exculpatory provisions in contracts are valid where three conditions are met: “First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010) (holding exculpatory provision contained in contract regarding season pass at ski resort was valid and did not contravene public policy).

When embarking on a public policy analysis, we recognize that exculpatory provisions “violate public policy only when they involve a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 582 A.2d 1380, 1382 (Pa.Super. 1990).

Our Supreme Court has set a high bar that a party must clear before a court may invalidate a contract on public policy grounds: 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 [that the contract is against public policy]. Williams v. GEICO Gov’t Employees Ins. Co., 32 A.3d 1195, 1200 (Pa. 2011) (citation omitted). “[P]ublic policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest.” Id.

UC - late appeal - pressure of life event not sufficient

Carney v. UCBR – Cmwlth. Court – January 19, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/623CD17_4-3-18.pdf?cb=2

Held:  Pressure of the particular life events in this case (birth of child, demands of starting a business) are not sufficient to excuse an untimely appeal.

Timely appeal is jurisdictional -- Failure to file a timely appeal as required by Section 501(e) of the Law is a jurisdictional defect. Russo v. UCBR, 13 A.3d 1000 (Pa. Cmwlth. 2010). The time limit for a statutory appeal is mandatory; it may not be extended as a matter of grace or indulgence. Id.

Exceptions - To justify an exception to the appeal deadline, Claimant must demonstrate that his delay resulted from extraordinary circumstances involving fraud, a breakdown in the administrative process, or non-negligent circumstances relating to Claimant himself. See id. This is an extremely heavy burden. Blast Intermediate Unit No. 17 v. UCBR, 645 A.2d 447 (Pa. Cmwlth. 1994); Reed v. UCBR, 406 A.2d 852 (Pa. Cmwlth. 1979).

Failure to notice appeal deadline - A claimant’s failure to notice the appeal deadline in a UC determination does not constitute a non-negligent circumstance justifying an untimely appeal. Reed; Delaney v. UCBR, 368 A.2d 1351 (Pa. Cmwlth. 1977). Thus, Claimant’s explanation that he failed to notice the appeal deadline in the determination he received from the Department is legally insufficient to excuse his failure to file a timely appeal.

Pressure of claimant’s particular life events not sufficient - The pressure of many life events is likewise insufficient to excuse an untimely appeal. This Court consistently rejects such excuses. See, e.g., Constantini v. UCBR, 173 A.3d 838 (Pa. Cmwlth. 2017), (ongoing legal issues, home computer network issues, and medical emergency appointments); Maloy v. UCBR (Pa. Cmwlth., No. 1009 C.D. 2015, filed April 13, 2016), 2016 Pa. Commw. Unpub. LEXIS 271 (unreported) (dealing with brother’s death, moving, and caring for daughter and sick mother); Burgher v. UCBR (Pa. Cmwlth., No. 1929 C.D. 2014, filed July 7, 2015), 2015 Pa. Commw. Unpub. LEXIS 461 (unreported) (anxiety and stress from layoff); Rabe v. UCBR (Pa. Cmwlth., No. 1785 C.D. 2013, filed February 24, 2014), 2014 Pa. Commw. Unpub. LEXIS 115 (unreported) (financial stress and multiple pending court cases); Menges v. UCBR (Pa. Cmwlth., No. 2230 C.D. 2009, filed April 22, 2010), 2010 Pa. Commw. Unpub. LEXIS 254 (unreported) (death in the family and lingering effects of a medical condition). We cite these decisions as persuasive. See 210 Pa. Code §69.414(a).

Major life events may excuse late appeal – “We do not suggest that a major life event can never furnish a sufficient non-negligent reason to allow an untimely appeal. See, e.g., Cook v. UCBR, 671 A.2d 1130 (Pa. Cmwlth. 1996) (en banc) (claimant showed non-negligent extraordinary circumstances justifying a late appeal, where he filed four days late because on the deadline for the appeal, he was hospitalized in a cardiac care unit after a collapse).”