UC - appellate brief - no case citations; willful misconduct

Miracle v. UCBR - Cmwlth. Court - October 20, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/250CD08_10-20-08.pdf

appellate brief - Rule 2101 - no case citations -The court refused to quash claimant's brief, even though it did not contain any case citations. The court found that the "argument articulated are sufficient to allow the court to engage in appellate review.

willful misconduct - Claimant's failure to comply with the employer's reasonable work request (entering an incident in a master log) was reasonable, and that claimant's failure to do so, without good cause, constituted willful misconduct.

disability - mental impairment - severity

Velazquez v. Astrue - ED Pa. - October 2008

http://www.paed.uscourts.gov/documents/opinions/08D1220P.pdf

Finding of non-severity of mental impairment not supported by substantial evidence. Case remanded.

" In order to meet the step two severity test, an impairment need only cause a slight abnormality that has no more than a minimal effect on the ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921; S.S.R. 96-3p, 85-28. The Third Circuit Court of Appeals has held that the step two severity inquiry is a “de minimus screening device to dispose of groundless claims.” McCrea v. Comm. of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004); Newell v. Comm. of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003). “Any doubt as to whether this showing has been made is to be resolved in favor of the applicant.” Id.

The medical records from 2000 and 2001 show serious symptoms and limitations arising from Velazquez’s mental impairment including GAF scores between 45 and 58....Although the ALJ listed most of the evidence, she did not mention the GAF scores or sufficiently explain why the state medical consultant’s conclusion of non-severity was most consistent with the evidence, especially in light of the many serious findings from Velazquez’s treating and examining mental health professionals.

While the evidence may not establish disabling depression, the evidence also does not appear to establish that Velazquez’s depression was groundless. As a result, on remand, the ALJ shall re-assess her determination regarding Velazquez’s depression and support her decision with substantial evidence. Likewise, the ALJ shall conform her RFC assessment and any hypothetical questions to reflect her properly supported conclusions.

evidence - clear and convincing evidence

Kistler v. State Ethics Commission - Cmwlth. Court - October 17, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1352CD07_10-17-08.pdf

" Clear and convincing proof is evidence that is so clear, direct, weighty and convincing that it enables the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue. In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88 (1998)."

UC- willful misconduct

Keystone Central School District v. UCBR - Cmwlth./ Court - October 15, 2008 - unreported en banc memorandum opinion (5-2)

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1864CD07_10-15-08.pdf

Learning support teacher was not guilty of willful misconduct for her conduct during testing of learning disabled students. The UCBR's findings that her actions were consistent with state exam testing accommodations, each child's IEP, and instructions from her superiors were supported by substantial evidence.

paternity by estoppel

Ellison v. Lopez - Superior Court - October 15, 2008

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a18031_08.pdf

Defendant estopped from denying paternity of child born out of wedlock where

- there was no fraud or misrepresentation by mother

- defendant was always aware that there was a question about paternity

- defendant held child out as his own and assumed parental role for at least two years, despite paternity questions

- defendant did not ask for paternity testing for two years, despite child's lack of resemblance to him

UC - appeal - notice of issues - timeliness of appeal

Plut v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2283CD07_10-14-08.pdf

Issue of timeliness of claimant's appeal was properly considered, even though not listed on the notice of hearing.

The referee gave claimant the option of continuing the hearing because the issue was not listed, but not the "chance to refused to decide the timeliness issue" under 34 Pa. Code101.87. http://www.pacode.com/secure/data/034/chapter101/s101.87.html.

Nonetheless, following Dilenno v. UCBR, 429 A.2d 1288 (Pa. Cmwlth 1288, 1289 (Pa. Cmwlth. 1981), the court said the timeliness of an appeal is a jurisdictional prerequisite that is always at issue, cannot be waived by the referee by the failure to list it on the notice of hearing, and can be raised by the court on its own motion at any time.

UC- vol. quit - good cause - change in work schedule

Philadelphia Park Casino v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/726CD08_10-14-08.pdf

Claimant had good cause to quit his job where he has negotiated a work shedule with the employer, for religious and health reasons, and employer unilaterally changed the schedule.

UC - hearing - continuance - good cause - new job

Ammon v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/795CD08_10-14-08.pdf

Refusal to grant claimant's last minute request for a continuance was an abuse of discretion, where it resulted from an unexpected, last-minute opportunity to begin employment on the day of the hearing.

Normally, last-minute requests are disfavored. However, in this case the request was supported by "proper cause" under 34 Pa. Code § 101.23 http://www.pacode.com/secure/data/034/chapter101/s101.23.html.

The refusal to grant it would penalize a person who actually found work and would be "contrary to the goal of stabilizing employment." Shegan v. UCBR, 564 A.2d 1022, 1025 n. 5 (Pa. Cmwlth. 1989).

pre-emption - state/local

Hoffman Mining Company v. Zoning Hearing Board - Cmwlth. Court - October 15, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2122CD07_10-15-08.pdf

Whether a state statute preempts local regulation is determined by the intent of the General Assembly. The General Assembly can specifically express its intent by either providing that municipalities may enact ordinances not inconsistent with state law, limiting what subjects of regulation that may be enacted, or by expressly forbidding municipal regulation altogether.

However, the General Assembly is often silent and is not presumed to have preempted the field by legislating in it; therefore, it must clearly be shown that it was the General Assembly’s intent to preempt the field by legislation. Retail Master Bakers Association v. Allegheny County, 400 Pa. 1, 161 A.2d 36 (1960); Baird v. Township of New Britain, 633 A.2d 225 (Pa. Cmwlth. 1993).

The presumption against preemption is based on the understanding that what is being preempted is the ability of the municipality, through its elected local officials, to address the needs of its citizens.

UC - willful misconduct - lateness

Turner v. UCBR - Cmwlth. Court - October 8, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/519CD08_10-8-08.pdf

Claimant was guilty of willful misconduct when she stopped on her way to work to get shoes (because her feet hurt), without telling the employer that she was doing so and would be late. Claimant had a history of lateness and had been given a final warning.

child abuse - "imminent risk" - OCYF Bulletin

Montgomery Co. CYS v. DPW - Cmwlth. Court - Octobwer 8, 2008 - unreported memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/376CD08_10-8-08.pdf

No risk of imminent serious injury by momentary inattention of daycare worker, especially considering the definition of "imminent risk" in proposed regs.

disability - treating physician opinion; credibility

Wilson v. Astrue - ED Pa. November 28, 2007

http://www.paed.uscourts.gov/documents/opinions/07D1402P.pdf

Benefits granted in this case, with good discussions of standards for evaluating opinion of treating physician and judging claimant credibility.

appellate rules - petitioner for allowance of appeal - PRAP 1115

order - http://www.courts.state.pa.us/OpPosting/Supreme/out/196aplt.1.pdf

rule - http://www.courts.state.pa.us/OpPosting/Supreme/out/196aplt.1attach.pdf

evidence - offers to compromise - Pa. R. Evid. 408

http://www.courts.state.pa.us/OpPosting/Supreme/out/451spct.1attach.pdf

http://www.courts.state.pa.us/OpPosting/Supreme/out/451spct.1rpt.pdf

http://www.courts.state.pa.us/OpPosting/Supreme/out/451spct.1.pdf

UC - vol. quit - intolerable conditions - unjust accusations

First Federal Savings Bank v. UCBR - Commonwealth Court - October 2, 2008

http://www.courts.state.pa.us/OpPosting/Cwealth/out/427CD08_10-2-08.pdf

Held that claimant had good cause/necessitour & compelling reason to quit her job, where

- she was a valued management employeee

- a fellow employee “engaged in outbursts, was talking, defiant and argumentative, and was quite disrespectful to the claimant personally.”

- claimant expressed her concerns about this to senior management, who did not do anything about it

- claimant established that “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.”

- She had ‘good cause’ for voluntarily leaving (i.e. that cause which is necessitous and compelling) resulting from circumstances which produced pressure to terminate employment that was both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.”

- "Perhaps most important to the present case, it is well established that “a claimant need not indefinitely subject herself to unjust accusations and abusive conduct.” However, “[r]esentmentof a reprimand, absent unjust accusations, profane language or abusive conduct …mere disappointment with wages … and personality conflicts, absent intolerable working atmosphere … do not amount to necessitous and compelling causes.”

- Claimant demonstrated more than a mere belief of unjust accusations, as the Board concluded that Claimant was, in fact, unjustly reprimanded with abusive language and that Claimant was subjected to intolerable working conditions.

- Claimant made attempts on various occasions to preserve her employment relationship with Employer without success. Claimant took her concerns to senior management officials and was reasonable in doing so

consumer - UTPCPL - fraud in the inducement - parol evidence

Devine v. America's Whole Lender, et al. - ED Pa. - September 25, 2008

http://www.paed.uscourts.gov/documents/opinions/08D1132P.pdf

Plaintiff's evidence about defendant's preliminary, fraudulent misrepresentations is barred by the Pennsylvania application of the parol evidence rule barring evidence about fraud in the inducement.

From the opinion (read it and weep)

Under Pennsylvania law, evidence of prior or contemporaneous oral or written negotiations or agreements is generally inadmissible to explain or vary the terms of a contract that covers or purports to cover the entire agreement of the parties. Yocca v. The Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004); Bardwell v. Willis Co., Inc., 100 A.2d 102, 104 (Pa. 1953). In Yocca, the Pennsylvania Supreme Court explained the fraud exception to the parol evidence rule as follows:

"Notably, while parol evidence may be introduced based on a party's claim that there was fraud in the execution of the contract, i.e., that a term was fraudulently omitted from the contract, parol evidence may not be admitted based on a claim that there was fraud in the inducement of the contract, i.e., that an opposing party made false representations that induced the complaining party to agree to the contract. Yocca, 854 A.2d at fn. 26; see also HCB Contractors v. Liberty Place Hotel Assocs., 652 A.2d 1278, 1279 (Pa. 1995)."

The plaintiffs claim they signed the loan documents based on defendant's assurances that the payment option they desired would be added to the package after execution of the documents. This is fraud in the inducement. The parol evidence rule bars the introduction of this evidence because plaintiffs seek to vary the terms of the written loan documents, which purported to cover the parties' entire agreement. There is no evidence that a term was fraudulently omitted from the contract. Thus, what happened here does not fall within the fraud exception under Yocca.

Given Pennsylvania's adoption of the parol evidence rule, the plaintiffs cannot be said to have justifiably relied on the defendants' representations regarding the amount of the monthly payments due under the loans because these representations are in direct conflict with the parties' contract. Yocca, 854 A.2d at 502. Thus, plaintiffs' claim under the UTPCPL fails.

Accordingly, the court will grant summary judgment on plaintiffs' claims under the catch-all provision of the UTPCPL which are based on defendants' alleged misrepresentations.6

n. 6 - The plaintiffs' brief in opposition to the defendants' motion for summary judgment for the first time asserts that their claims "are based in part on the ground that a violation of any portion of the UTPCPL, notably here the violations of 73 P.S. section 201-7 and the violation of any other consumer protection laws, such as the TILA, constitute per se violations of section 201-4(2) of the TPCPL." However, paragraph 32 of the plaintiffs' complaint premises their per se violations of the UTPCPL on the defendants' alleged violations of the Pa. Credit Services Act and the Pa. Loan Broker Trade Practices Regulations ("LBTP") only. To the extent the plaintiffs have premised their claims under the UTPCPL on the alleged violations of TILA and § 201-7 of the UTPCPL, such claims come too late.

child abuse - founded report - right to hearing

G.M. v. DPW - Commonwealth Court - September 26, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/765CD08_9-26-08.pdf

There is no right to a civil expungment hearing on a "founded" report of abuse--i.e., one based on a court decision-- where the defendant has previously pleaded nolo contendere in a separate criminal case, if the same underlying factual circumstances are involved in both matters.

The court contrasted its decision in R.F. v. DPW, 845 A.2d 214 (Pa. Cmwlth. 2004), where the generic criminal charges did not correspond to the allegations of abuse in the civil case.

Where “there is an entry of a guilty plea or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstance involved in the allegation of child abuse, an appeal would ‘in most instances, constitute a collateral attack of the adjudication itself, which is not allowed.’” J.G. v. DPW, 795 A.2d 1089, 1093 (Pa. Cmwlth. 2002).

contracts - insurance - interpretation - reasonable expectation of insured

Betz v. Erie Insurance Exchange - Superior Court - September 22, 2008

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a23045_08.pdf

Trial court judgment in favor of the insured affirmed on appeal. The case involved a "sinkhole endorsement" to a homeowner's policy, which the court found ambiguous as a matter of law and "insufficiently clear to put the policyholder on notice of what the endorsement actually covered...."

Although the interpretation of insurance policies, like all contracts, depends on the intention of the parties, courts also consider all the circumstances, including the object to be accomplished. Contract principes have only limited application in insurance cases. Our courts have often observed that “‘normal’ contract principles do not apply to insurance transactions.”

The "proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured.” This rule of "reasonable expectations" is "not limited only to situations in which the insurance contract might be deemed ambiguous. Regardless of ambiguity or lack thereof, our courts have reviewed the totality of the underlying circumstances.

UC - independent contractor - barber

Glatfelter Barber Shop v. UCBR- September 24, 2008 - Commonwealth Court (2-1)

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1736CD07_9-24-08.pdf

The court affirmed the Board decision that the claimant was an employee rather than an independent contractor, and thus was not disqualified under sec. 402(h) of the UC Law, 43 P.S. § 802(h).

The court said that there is a presumption that the claimant was an employee (without citing cases), and that the employer had not overcome that with contrary evidence. The court also held that the claimant was not engaged In an independently established trade, occupation, profession or business, citing Viktor v. DOLI, 586 Pa. 196, 892 A.2d 781 (2006).

Finally, the court held that claimant's refusal to sign a non-compete agreement was not willful misconduct, citing Zimmerman v. UCBR, 836 A.2d 1074, 1080-81 (Pa. Cmwlth. 2003) (the refusal to sign an agreement presented to a claimant more as an ultimatum than a matter to be negotiated does not constitute willful misconduct.)

There was a lengthy dissent, arguing that the Board decision was arbitrary and capricious.

disability - failure to consider evidence - remand

Magid v. Astrue - ED Pa. - September 18, 2008

http://www.paed.uscourts.gov/documents/opinions/08D1109P.pdf

The ALJ failed to mention--and presumably consider--the opinion of an examining state agency psychologist, Dr. Gensemer.

"In coming to the determination that Magid did not have any mental limitations that would prevent him from performing “at least semi-skilled work,” it is unclear whether or not the ALJ completely ignored Dr. Gensemer’s opinion. Thus, the case must be remanded for the ALJ to reconsider the medical evidence in the record regarding Magid’s mental limitations and explain his reasoning for accepting and rejecting the various opinions. See Burnett v. Comm’r of Social Sec. Admin., 220 F.3d 112, 121-22 (3d Cir. 2000).

"The above analysis demonstrates that the ALJ failed to fully consider the record before him, and thus, the court will not make a ruling on Magid’s remaining arguments regarding whether or not the ALJ erred in determining that Magid could perform medium work and return to his past relevant work. "

UC - willful misconduct - conscious disregard

Patterson v. UCBR - Commonwealth Court - September 12, 2008 - unreported memorandum opinion

http://www.courts.state.pa.us/OpPosting/CWealth/out/1741CD07_9-12-08.pdf

Housekeeper not guilty of willful misconduct because employer did not show willful/intentional violation of his job duties, only that his performance fell below employer standards.

The court relied on Rung v. UCBR, 689 A.2d 999 (Pa. Cmwlth. 1997), holding that there must be any intentional disregard of the employer's interests, and BK Foods v. UCBR, 547 A.2d 873 (Pa. Cmwlth. 1988), holding that there is a differenence between "mere incompetence, inexperience or inability" and a "conscious disregard of the employer's interest." McCrea v. UCBR, 487 A.2d 69 (Pa. Cmwlth 1986).

There was no showing here of conscious disregard or unwillingness to to work to the best of his ability. Even under the Board's own findings, the most that was shown was a possible mistake about work assignments.

There was a dissent, stating the evidence showed that claimant knew what was he was supposed to do but didn't do it.

UC- willful misconduct - mental illness - evidence

Seneca Valley School District v. UCBR - Commonwealth Court - September 9, 2008 - UNREPORTED MEMORANDUM OPINION

http://www.courts.state.pa.us/OpPosting/CWealth/out/267CD08_9-9-08.pdf

Teacher established good cause for her conduct. There was substantial evidence--the required expert medical evidence, Dept. of Navy v. UCBR, 632 A.2d 622 (Pa. Cmwlth. 1993), from the employer's own witness--to support its finding that claimant's behavior was excused because it was caused by mental illness.

That evidence showed that claimant's conduct was caused by a brief psychotic episode from which she had recovered, and that she was presently able to work.

The employer's claim that its own witness's testimony about its own psychiatrist's findings was hearsay was rejected. The court held that it came under the "admission against interest" exception, a voluntary acknowledgment by a party of the truth of facts which are inconsistent with the party's claim in an action. Such evidence has a "high evidentiary value" and is accepted on the assumption that a witness would not say anything against his interest unless it were true.

UC - voluntary quit - conscious intention

Subway List, Inc. v. UCBR - Commonwealth Court - September 5, 2008 - unreported memorandum opinion

http://www.courts.state.pa.us/OpPosting/CWealth/out/2258CD07_9-5-08.pdf

Held that totality of circumstances, the claimant did not show the required "conscious intention to voluntarily quit her job," even when she failed to complete a questionnaire by the time specified by her employer, June 30th.

She was out on a medical leave and did send the employer a letter, received on July 1st, saying that she would respond more precisely after an upcoming checkup. Her "inability to predict the circumstances regarding her return to work did not demonstrate an intention to quit"

Nor were her actions willful misconduct. "The letters that Claimant sent served the same purpose of advising employer of her intentions....Claimant reasonably attempted to comply with employer's request and...her actions did not constitute willful misconduct."

UC - reconsideration - new evidence - second bite at the apple

Rose v. UCBR - September 9, 2008 - unreported memorandum decision

http://www.courts.state.pa.us/OpPosting/CWealth/out/145CD08_9-9-08.pdf

The regulation at 34 Pa. Code §101.1116 provides that an aggrieved party may request the Board to reconsider its decision. The Board’s “decision to grant or deny a request for reconsideration is a matter of administrative discretion, this Court’s scope of review of that decision is limited to determining whether the agency abused its discretion.”

Section 101.111(b) provides that the Board will grant a request for reconsideration for “good cause.” In determining whether “good cause” exists, the agency must consider whether the party requesting reconsideration has identified new circumstances or whether the agency failed to consider relevant law.

An offer to provide additional evidence does not constitute good cause unless it can be shown that this “new” evidence was not available at the time of the Referee’s hearing.

Save exceptional circumstances, this Court simply does not allow a party “the proverbial second bite at the apple.” Primecare Medical, Inc. v. Unemployment Compensation Board of Review, 760 A.2d 483, 488 (Pa. Cmwlth. 2000)

due process - emergency - post-deprivation hearing

Elsmere Park Club v. Town of Elsmere - 3d Circuit - September 9, 2008

http://www.ca3.uscourts.gov/opinarch/071821p.pdf

Town condemned apartment complex because of mold and sewage problems.

Held: No pre-deprivation hearing was required because of "exception circumstances" and need for prompt government action, e.g. threat to public health of safety.

The post-deprivation process that was offered--and which owner abandoned--was held to be adequate.

federal courts - pleading

Umland v. Planco Financial Services - Third Circuit - Septembe 9, 2008

http://www.ca3.uscourts.gov/opinarch/064688p.pdf

In light of the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955 (2007), we have cautioned that the factual allegations in the complaint must not be “so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).

In addition, “it is no longer sufficient to allege mere elements of a cause of action; instead ‘a complaint must allege facts suggestive of [the proscribed] conduct.’ ” Id. (alteration in original) (quoting Twombly, 127 S. Ct. at 1969 n.8).

We have interpreted Twombly’s emphasis on “plausibility” to mean that the complaint’s “ ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ ” Id. at 234 (quoting Twombly, 127 S. Ct. at 1965).
__._,_.___

employment - state min. wage act - domestic workers

Bayada Nurses, Inc. v. Dept. of Labor & Industry - Commonwealth Court - September 4, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/477MD07_9-4-08.pdf

Home health aides held entitled to state minimum wage and overtime protections under state Minimum Wage Act (MWA), 43 P.S. 333.105(a)(2), (4), and regulations, 34 Pa. Code 231.1(b), which mandated coverage where the work was done as an employee of a third party, such as petitioner, and not the householder her/himself.

These state laws provide coverage where federal law does not, 29 CFR 552.3, 552.109(a). The law is clear, however, that the FLSA does not pre-empt state regulations of wages and overtime if the state's standards are more beneficial to workers, FLSA sec. 218(a).

The dissent felt that the case was not ripe, because DLI had not taken action against the employer, which had failed to exhaust administrative remedies.

PFA - jurisdiction - sufficiency of evidence

BTW v. PJL - Superior Court - August 27, 2008

http://www.courts.state.pa.us/OpPosting/Superior/out/S11044_08.pdf

The trial court had jurisdiction over PFA involving abuse of a child even though defendants lived and abuse took place outside of Pennsylvania, since a Pennsylvania court had previously entered a custody order concerning the child and had "exclusive, continuing jurisdiction" over custody and related matters under 23 Pa. C.S. 5422(a) and 5402 (definition of "child custody proceeding" includes PFA action."

In addition, the evidence was sufficient to establish abuse, where it included hitting with a belt, pulling hair, bruising, marks on back.

PFA - reasonable fear - course of conduct

Mescanti v. Mescanti - Superior Court - August 29, 2008

http://www.courts.state.pa.us/OpPosting/Superior/out/a17028_08.pdf

Husband's course of conduct held sufficient to cause reasonable fear of bodily injury in wife. That conduct included

- threats that she'd better not to sleep or even close her eyes
- fact that husband had guns in the house, and wife heard sounds of gun cocking
- husband interrupting wife's sleep, hacking into her email, following her around, disconnecting phone lines, etc.

It was held that "the record amply supports the trial courts's conclusion that wife established, by a preponderance of the evidence, that husband engaged in a course of conduct that place wife in reasonable fear of bodily injury.

employment - nursing - good moral character

Sellers v. State Board of Nursing - Commonwealth Court - August 28, 2008 - unreported memorandum decision

http://www.courts.state.pa.us/OpPosting/CWealth/out/297CD08_8-28-08.pdf

Petition for reinstatement of license of former R.N. denied because of her failure to accept responsibility for her wrongdoing, which related to abuse of alcohol. She was not honest and forthright and truthful with the state licensing authorities. The Board acted properly in conditioning reinstatement, in part, on an actual acknowledgment of wrongdoing, which is an important initial step in preventing recurrence of wrongful conduct and restoring the licensee's credibility. This applies to any wrongful conduct, not just fraudulent conduct. The licensing act "requires good moral character as a qualification for a license to practice nursing."

UC - willful misconduct - working to the best of one's ability

Thompson v. UCBR - Commonwealth Court - September 5, 22008 - unreported memorandum decision

http://www.courts.state.pa.us/OpPosting/CWealth/out/294CD08_9-5-08.pdf
Unsatisfactory job performance does not necessarily disqualify a claimant for benefits because incompetence, inexperience or inability to do the job does not amount to willful misconduct. Geslao v. UCBR, 519 A.2d 1096, 1097 (Pa. Cmwlth. 1987). In this regard, “a finding that a claimant has worked to the best of his ability negates a conclusion of willful misconduct.” Norman Ashton Klinger & Associates, P.C. v. UCBR, 561 A.2d 841, 843 (Pa. Cmwlth. 1989).

However, contrary to Claimant’s assertion, a claimant’s failure to work to the best of his ability can constitute willful misconduct. Specifically, this Court has explained:

When...an employee’s on the job performance is below the level of his or her ability and this conduct continues over a period of time despite the employee being aware of it as such, it is considered a conscious or careless disregard of the employer’s interest and constitutes willful misconduct. Younes v. UCBR, 467 A.2d 1227, 1228 (Pa. Cmwlth. 1983).

Further, “a showing of actual intent to wrong the Employer is not required. Claimant’s conscious indifference to his employment duties is enough to support a finding of willful misconduct.” Cullison v. UCBR, 444 A.2d 1330, 1331 (Pa. Cmwlth. 1982).

We reject Claimant’s assertion that the Board incorrectly focused on whether Claimant worked to the best of his ability. This standard has a foundation in our precedent. Not working to the best of a person’s ability contains the element of intentionality that rises to willful misconduct if the person is capable of performing the job properly but does not do so.

UC - willful misconduct - sleeping on the job

Dolan v. UCBR - Commonwealth Court - Septeem ger 5, 2008 - unreported memorandum decision

http://www.courts.state.pa.us/OpPosting/CWealth/out/718CD08_9-5-08.pdf
The Court has repeatedly held that sleeping on the job is “prima facie an act of willful misconduct.” Biggs v. UCBR, 443 A.2d 1204, 1205 (Pa. Cmwlth. 1982). Accord Kelley v. UCBR, 429 A.2d 1227 (Pa. Cmwlth. 1981); Ragland v. UCBR, 428 A.2d 1019 (Pa. Cmwlth. 1981); Johnson v. UCBR, 420 A.2d 794 (Pa. Cmwlth. 1980); Markley v. UCBR, 407 A.2d 144 (Pa. Cmwlth. 1979); UCBR v. Simone, 355 A.2d 614 (Pa. Cmwlth. 1976).

Thus, where an employer proves a claimant slept on the job, or a claimant admits he slept on the job, a prima facie case of willful misconduct is proven....As noted above, the record supports the Board’s finding Claimant fell asleep while driving. We agree

Claimant actions constituted willful misconduct, irrespective of whether an ensuing accident and damage to the employer's truck was intentional under Myers v. UCBR, 533 Pa. 373, 625 A.2d 622 (1993) (an employee’s involvement in three accidents in six-month period was, at most, the result of negligence rather than intentional or deliberate conduct; negligent conduct does not equate to willful misconduct for unemployment compensation purposes) and Finch v. UCBR, 692 A.2d 619 (Pa. Cmwlth. 1997)

UC- voluntary retirement - pre-retirement termination

Port Authority v. UCBR - Commonwealth Court - September 4, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/193CD08_9-4-08.pdf

Claimants' employment was terminated; they did not quit their jobs - Following the decisions in Amado v. UCBR, 110 A.2d 807 (Pa. Super. 1955) and PECO Energy Co. v. UCBR, 682 A.2d 40 (Pa. Cmwlth. 1996, and distinguishing that in Davila v. UCBR, 926 A.2d 1287 (Pa. Cmwlth. 2007), the court held that where the employer discharged claimants before their designated retirement dates in a deferred retirement option plan (DROP), the claimants "are considered to have been discharged until such time as those periods expire, and after which time they are considered to have voluntarily quit."

Under the DROP program, the claimants submitted their resignations but continued to work, by agreement with the employer, which had the right to discharge the claimants at any time. However, "such resignations and participation were not sufficient to waive their right to unemployment compensation.....[U]nder Section 701 of the Law, 43 P.S. § 861, employees cannot agree to waive their unemployment compensation benefits. Were we to accept employer’s argument, well-counseled employers would simply ask each new hire to resign effective his first day of work and select a period during which he requested to continue work. Employer could then keep the employee at its leisure, until it unilaterally decided it no longer wished to employ him, at which point it would “retire” him, and such “retirement” would be considered a voluntary quit. Such a scheme subverts the intention of the Law."

"Although Claimants tendered resignations, which purported to be effective as of February 2003, employer invited them to request a period during which they would continue to work, and employer then continued to employ Claimants during this selected period, after the purported effective date of Claimants’ resignations. Under these facts, it is clear that Claimants’ resignations were to be effective at the end of their DROP periods. Therefore, pursuant to Amado and PECO, the Board did not err in determining that, during the time prior to the expiration of their DROP periods, Claimants’ unemployment should be considered involuntary, and analyzed under Section 402(e)"

Claimants are not at fault for the unemployment under Sec. 3 - The court also rejected the employer argument that claimants should be disqualified under Sec. 3 of the UC Law. Claimants were clearly willing and available to continue working had employer not required them to stop. We do not view such participation [in the DROP program] as the sort of culpability upon which this Court has relied in the cases employer cited dealing with Section 3. Employment in Pennsylvania is usually considered to be at-will. Even assuming that claimants had a right to continued employment, which they somehow relinquished by entering into the DROP program, such relinquishment would not be fault of their own sufficient to deny benefits when employer subsequently discharged them.

UC is not a means-tested program - The court rejected the employer's argument that benefits should not be awarded because claimants are not "subject to econonic hardship. Even though the UC law is meant to relieve the "economic hardship of sudden unemployment and provide temporary assistance for the resulting economic burden,” there is "no authority for the proposition that unemployment compensation benefits are, or should be, means-tested, or that only claimants who will be impoverished may receive benefits."

UC - late appeal - low IQ, illiteracy

Dull v. UCBR - Commonwealth Court - September 3, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/679CD08_9-4-08.pdf

The claimant appealed in October from a referee decision issued in April. The court rejected the appeal, holding against the claimant on her arguments that a) there was no proof of mailing; b) she is incompetent and has an IQ of 76; c) the failure of the UCBR to make a provision for her mental deficiency/illiteracy constitutes an administrative breakdown that warrants allowing an appeal nunc pro tunc.

The court said the the mailbox rule did not apply, since there was evidence in the administrative record that the decision was, indeed, mailed to her. "Thus neither the employer nor administrative officials bear the burden of presenting additional affirmative evidence, but the burden falls on Claimant to prove her allegations." She did not prove that the referee decision was not delivered to her. She "could have have someone read her mail had she chosen to do so." It was her "own negligence" in this regard and not her low IQ that resulted in the late appeal.

The court distinguished Lewis v. UCBR, 814 A.2d 829 (Pa. Cmwlth. 2003), where the court allowed a late appeal for a claimant who, despite an IQ similar to the claimant's here, made a "diligent effort to file her appeal in a timely manner, soliciting help where needed and communicating with the UCSC throughout the process. Here the Claimant exercised no diligence at all....We will not hold the UCBR or related agencies responsible for accommodating illiteracy where claimants fail to disclose their illiteracy and fail to make reasonable efforets to obtain appropriate assistance."

social security - disability - duty to consider all evidence - inconsistent findings

Stover v. Astrue - ED Pa. - August 28, 2008

http://www.paed.uscourts.gov/documents/opinions/08D1025P.pdf

The court remanded the case after finding that the ALJ failed to consider all of the medical evidence of record and that his findings with respect to certain medical evidence pertaining to Plaintiff’s mood disorder are irreconcilably inconsistent.

Specifically, the ALJ (a) failed to consider the entire medical opinion of the state agency psychologist, (b) the ALJ appears to have made two different credibility findings as to the consultative physician’s medical opinions concerning plaintiff’s mental impairments, and (c) the ALJ mistakenly represents that certain nonexertional limitations were posed to the VE in a hypothetical question.

These omissions and errors concern medical evidence that is probative of the question before the ALJ at Step Four: whether Plaintiff could return to her past relevant work as a parking lot cashier. Due to these omissions and errors, the court finds that the ALJ’s decision is not supported by substantial evidence.

contracts - arbitration clause - mutual assent

Morales v. Sun Constructors, Inc. - Third Circuit - August 28, 2008 (2-1 decision)

http://www.ca3.uscourts.gov/opinarch/073806p.pdf

Held: An arbitration clause in an employment contract is enforceable even where one party does not understand the contract because he "is ignorant of the language in which the agreement is written," where there is no claim is fraud or other misleading conduct. The employer undertook to have a bilingual applicant who was also present translate the agreement to plaintiff, but "he did not specifically explain the arbitration clause" and the employer representative only explained it in English, even though he was aware that the plaintiff did not understand English.

The court purported to apply general Pennsylvania contract principles, which require only an outward expression of mutual assent, and not the parties' subjective intent - an objective theory of contract formation, which applies even when one party is illiterate or ignorant of the language in which the document is written. Every contracting party has the duty “to learn and know the contents of a contract before he signs and delivers it”). Arbitration agreements in the employment context are not exempt from this principle. In the absence of fraud or misrepresentation, which are not alleged here, a contract is enforceable even where one party cannot read, write, speak or under the language of the contract. "It was [the plaintiff's] obligation to ensure he understood the Agreement before signing."

The court held that a "heightened 'knowing and voluntary' standard to arbitration agreements would be inconsistent with the Federal Arbitration Act," 9 USC sec. 1 et seq., rejecting a claim that such a standard should apply because of the relinquishment of a valuable right - a court hearing.

dissenting opinion
The dissent agreed about the heightened standard but disagreed on the contractual issues of mutual assent, which it said should be considered separately and independently of any question of fraud. The dissent believed that the "gravamen of this case is that [the employer] took upon itself the task of translating the agreement for plaintiff and, in doing so, failed to convey the entire contents of the agreement," resulting in a "lack of mutual assent."

It was undisputed that (1) The plaintiff was unable to read the contract; (2) The employer assigned a coworker who himself was not fluent in English to translate the document for plaintiff; (3) the co-worker, in translating the document, neglected to translate the arbitration clauses; and (4) as a result of the incomplete translation, plaintiff was not aware that the agreement contained an arbitration clause.

The dissent found that the applicant's lack of understanding of the contract terms was not the result of his negligence, but rather the employer's failure to properly translate the terms, a task which the employer voluntarily assumed. The employer "made the decision to insert itself" between the applicant and the contract, thus creating a situation where the lack of consent could and did occur. The employer's translation of the contact terms was incorrect and incomplete, thus negating the applicant's assent.

child abuse - expungement - failure to get mental health treatment

W.C. v. DPW - Commonwealth Court - August 29, 2008 - UNREPORTED

http://www.courts.state.pa.us/OpPosting/CWealth/out/1918CD07_8-29-08.pdf

Failure to get mental health treatment for child justified agency's refusal to expunge indicated report of abuse.

consumer - FDCPA - letter from "legal department" with no attorneys

Rosenau et al. v. Unifund Corp. - Third Circuit - August 21, 2008

http://www.ca3.uscourts.gov/opinarch/073019p.pdf

1. Sec. 1692e(3) - Where there are no attorneys in a debt collector's "Legal Department," a collection letter signed by the "Legal Department" violates FCCPA sec. 1692e(3), which prohibits the "false representation or implication that...any communcation is from an attorney," even where the letter was not on law firm letterhead or signed by an attorney.

A "least sophisticated debtor" could have reasonably inferred that the Legal Department has "attorneys who played a role in writing or sending the letter." The fact that the letter says that it comes from a "debt collector" doesn't change this result. The terms "attorney" and "debt collector" are not mutually exclusive. Nor does it matter that the letter talks about a possible referral "to an attorney in your area"; lawyers commonly refer cases to other lawyers who practice in the geographical area where a debtor is located.

2. Sec. 1692e(10) - The court rejected plaintiff's argument that the use of Legal Department violated the catchall provision of the FDCAP, sec. 1692e(10), which prohibits the use of "any false representations or deceptive means to collect...any debt." It rejected an FTC advisory letter on the issue, holding that it was not entitled to deference except to the extent that its logic was persuasive. The court found that there is no clear objective standard that could be applied on this issue, since different legal departments have difference functions and emphases. However, the court remanded the case for further factual development, since the lower court's ruling was the result of a judgment on the pleadings, which is "inappropriate" for the resolution of a factual issue.

consumer - credit card case - standing, pleading, etc.

Remit v. Miller - C.P. Centre County - August 15, 2008

The court upheld the POs of the defendant (represented by Carl Mollica of MidPenn) in a credit card case.

attachment of writing
The court upheld defendant's objection that plaintiff violated Pa. RCP 1019(i) by failing to attach a copy of the writing on which its claim was based, stating that in "credit card suit, a creditor must 'attach the writings which assertedly establish [the creditor’s] right to a judgment.' " Atlantic Credit and Finance, Inc. v. Giuliani, 829 A.2d 340, 345 (Pa. Super. 2003).

standing - chain of ownership must be attached to complaint
Plaintiff claimed that it had standing to pursue the claim against plaintiff by virtue of an assignment, but it did not attach any writing assignment to the complaint. The court said that several Common Pleas cases hold that an assignment must be attached to the Complaint. The Centre County case of Flanagan v. Hill, Fitzgerald and Erie Insurance Group, 2006 PA.D.&.C. 263 (Kistler, J.) holds that Pa.R.C.P. 1019 requires that an assignment be attached to a complaint. This holding is in accord with Worldwide Asset Purchasing, LLC v. Stern, 153 Pittsburgh Legal J. 111, 112 (C.P. Allegheny 2004), which specifically addressed assignments in credit card cases. This Court concurs with these holdings and determines Pa.R.C.P. 1019 requires that, in a credit card case based upon an assignment, the relevant assignments showing the chain of ownership for the account from originator to current holder must be attached to the Complaint."

lack of specificity of pleading amount owed
A bare conclusory affidavit claiming an amount owed is insufficient in a credit card case. The court followed the holding in Marine Bank v. Orlando, 25 D.&.C.3d 264 (C.P. Erie 1982), which sustained POs for failure to comply with Pa.R.C.P. 1019(f), holding that “[a] defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what he must contest.” Id. at 268. This information must be included in the pleading for it to comply with Pa.R.C.P. 1019(f)."

The court also held that plaintiff was entitled to know specific charges and a specific accounting information to allow the defendant to calculate what she owes and how that amount was reached. Plaintiff must provide a breakdown of charges, payments, items purchased, and interest such that defendant can formulate a response or assert a counterclaim or a defense.

The court cited with approval the holding in Premium Assignment Corp. v. City Cab Company, Inc., 2005 WL 1706976, 2005 LEXIS 311 (C.P. Philadelphia 2005), for the proposition that “[t]he specific calculations are necessary pieces of information that are known by the plaintiff and are relatively simple to aver. The addition of those specific calculations will enable the defendant to prepare its defense and address the issues without forcing the defendant to engage in unnecessary discovery.” Defendant needs this information both to be able to fully and accurately answer the Complaint, to make any necessary counterclaims or defenses, and to avoid unnecessary discovery.

Pennsylvania Constitution - limitation on Edmunds analysis

Jubilirer v. Rendell - Pa. Supreme Court - August 19, 2008

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2008mo.pdf

This case involves interpreting Article IV, Section 16 of the Pennsylvania Constitution, which permits the Governor, when presented with an appropriation bill, to delete portions of the language defining a specific appropriation without disapproving the funds with which the language is associated.

It provides that the "Governor shall have power to disapprove of any item or items of any bill, making appropriations of money, embracing distinct items, and the part or parts of the bill approved shall be the law, and the item or items of appropriation disapproved shall be void, unless re-passed according to the rules and limitations prescribed for the passage of other bills over the Executive veto." PA. CONST. art. IV, § 16.

In Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 1991), the court directed litigants to brief and analyze: (1) the relevant text of the provision of the Pennsylvania Constitution; (2) the history of the provision, including Pennsylvania caselaw; (3) relevant caselaw from other jurisdictions; and (4) policy considerations). The court said that “it is both important and necessary that we undertake an independent analysis of the Pennsylvania Constitution, each time a provision of that fundamental document is implicated.” Id. at 894-95.

The court limited that analytical model in the instant case, holding that only where a matter calls for "comparative constitutional analysis" of similar state and federal constitutional provisions is Edmunds analysis appropriate.

In cases involving an interpretation of a provision of the Pennsylvania Constitution that lacks a counterpart in the U.S. Constitution , the court has "not engaged in the four-factor analysis set forth in Edmunds....because there is no federal constitutional text or federal caselaw to consider."

mortgage foreclosure - pleading - lack of knowledge

LaSalle Bank v. Youngberg - CP Centre County - August 12, 2008

The court denied plaintiff/mortgagee's motion for summary judgment on its complaint and defendant's answer, which claimed "lack of knowledge" about a) the assignment of the mortgage note, b) the amount due on the mortgage, and c) plaintiff's request for attorney fees.

The court adopted the reasong in Cercone v. Cercone, 386 A.2d 1 (1978), which held that the court must examine the entire pleading in determining whether the responding party must have had knowledge of certain information that was generally denied. While it is well settled that an inadequate denial is unacceptable and may if fact be an admission, that is only the case where it is clear that the defendants have adequate knowledge or that the means of obtaining information are within the defendants’ control.

assignment - The court held that it would not "require the debtor to consult public records records to verify the transfer of a mortgage note from one party to another, particularly when such information is much more readily available to the creditor and the creditor has not provided the verification until much later in the course of the litigation."

amount due - The actual amount due on a mortgage varies over time due to fees assessed and the interest rate. "The Court will not require Defendants, who have incomplete information, to conduct pre-answer discovery to avoid having their otherwise legitimate denials deemed answers by the Court. This shifting of the burden from Plaintiff to Defendant is unacceptable and without basis in the Pennsylvania Rules of Civil Procedure or in case law. Furthermore, Defendants cannot be required to accept the assertion of what costs have been incurred by the Plaintiff without conducting discovery relating to costs. Defendants’ denial of this information, to the extent it was denied in their Answer, was not an admission."

attorney fees - The "assessment of attorney’s fees, is similar to Defendants’ denial...that Defendant cannot be required to accept the assertion that Plaintiff has incurred attorney’s fees amounting to the amount listed in the Complaint. Defendants may challenge the reasonableness of attorney’s fees, including the legal enforceability of attorney’s fees clauses in Mortgage agreements. The Court will analyze attorney’s fees claims under the analysis set forth in Federal Land Bank of Baltimore v. Fetner, 410 A.2d 344 (Pa.Super. 1979), applying a reasonableness test in examining the complexity of the litigation and the relation between the amount requested in attorney’s fees and the amount of the principal due."

In sum, applying the Cercone analysis to the present case, the Court finds that Defendants admitted the allegations to which they had knowledge and denied those in which they did not have knowledge.The Court determines the record does not clearly show that no genuine issues of material fact exist and that Plaintiff is entitled to judgment as a matter of law."

disability - hearing loss - medical criteria - proposed regulations

http://edocket.access.gpo.gov/2008/pdf/E8-18718.pdf

SUMMARY: We propose to revise the criteria in the Listing of Impairments (the listings) that we use to evaluate claims involving hearing loss. We apply these criteria when you claim benefits based on disability under title II and title XVI of the Social Security Act (the Act). The proposed revisions reflect current medical knowledge, treatment, and methods of evaluating hearing loss, as well as our adjudicative experience since the publication of the current rules.

DATES: To be sure that your comments are considered, we must receive them by October 14, 2008.

admin. law - appeal - frivolous appeal - attorney fees

Reinhart v. Bureau of Driver Licensing - Commonwealth Court - August 12, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/2351CD07_8-12-08.pdf

The court upheld the trial court's decision in favor of the driver, whose license DOT wanted to suspend for his alleged refusal to submit to chemical testing by failing provide adequate breath samples, after being arrested for DUI.

The court also awarded attorney fees under Pa. RAP 2744, because DOT's appeal was found to be frivolous. It was based entirely on its own version of the facts, which were contrary those found by the trial court - including an express determination that the licensee provided two sufficient breath samples, rejecting contradictory testimony from DOT. The lower court findings, including about credibility, were held to be well supported by substantial evidence.

On appeal, DOT argued that it was "undisputed" that the licensee did not provide sufficient breath for a proper test, in spite of the express lower court findings to the contrary. "The court must determine the issues under the facts properly found by the trial court and not under the testimony that DOT prefers."

Pa. RAP 2744 states that an appellate court may award as further costs and damages as may be just a reasonable counsel fee "if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule." Pa. R.A.P. 2744.

A frivolous appeal is one in which “no justifiable question has been presented and ... [that] is readily recognizable as devoid of merit in that there is little prospect of success”....A frivolous appeal is one lacking any basis in law or fact. Basing an appeal solely upon facts which are contrary to the factual findings of the trial court, the sole arbiter of credibility, has been held to be frivolous.

An award of attorney’s fees against a government entity for pursuing a frivolous appeal is not without precedent and is not barred by any kind of immunity.

UC - voluntary quit - resentment of reprimand

Dunlap v. UCBR - Commonwealth Court - August 12, 2008 - unreported memorandum opinion

http://www.courts.state.pa.us/OpPosting/CWealth/out/320CD08_8-12-08.pdf

Mere disagreement with an employer’s management style or dissatisfaction and resentment of a reprimand does not constitute a necessitous and compelling reason to quit employment. Gioia v. UCBR, 661 A.2d 34 (Pa. Cmwlth. 1995).

UC - appeal - filing by fax - date of receipt

Mountain Home Beagle Media v. UCBR - Commonealth Court - August 12, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/255CD08_8-12-08.pdf

Employer appeal to UCBR had to be filed on or before August 28th. It was properly held to be late where the employer faxed the appeal and UCBR records showed receipt of the appeal ten (10) days after appeal deadline, despite employer's claim that it had faxed the appeal within the time limits.

The party appealing bears the risk of loss in transmission because it chose facsimile as the method of filing. The regulation, 34 Pa. Code § 101.82 (b)(3)(i), says that "If the faxed appeal is received without a legible date of transmission, the filing date will be the date recorded by the Department appeal office, the workforce investment office or the Board when it receives the appeal." (emphasis added)

"The date and time stamp on the sender’s confirmation sheet is simply not reliable to establish the date of filing by fax with the Board of Review....There is no evidence of fraud, administrative breakdown or non-negligent conduct which would permit the appeal to be filed nunc pro tunc. Moreover, as the imprinted date of receipt on the Department’s fax machine indicates that the Department first received Employer’s appeal on September 6, 2007, and such document is legible, such date is deemed the filing date of the appeal. 34 Pa. Code § 101.82(b)(3)(i). Employer assumed the risks inherent in filing an appeal via fax transmission. The Board properly dismissed Employer’s appeal as untimely."

child abuse - expungement - lack of supervision - noaccidental serious injury

Fayette County CYS v. DPW - Cmwlth. Court - 08/11/08 - UNREPORTED MEM. DECISION

http://www.courts.state.pa.us/OpPosting/CWealth/out/310CD08_8-11-08.pdf

The court affrmed DPW's grant of an expungement petition. The case involved the mother leaving a 4-month child alone for 5 minutes, during which time the child got out of a car seat and burned its hand on a nearby heater. The parties stipulated that the mother did not act intentionally.

The court found that mother's acts did not satisfy the legal standard for child abuse. 23 Pa. C.S. sec. 6303(a) requires an "injury that is the result of an intentional act that is committed with disregard of a substantial and unjustifiable risk.” Mother's acts were not intentional, as stipulated by the parties.

Nor did mother's leaving the child alone, under the circumstances, constitute "serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision ...which endangers a child’s life or development or impairs the child’s functioning. 23 Pa. C.S. §6303(b)(1)(iv). The court agreed with DPW that the child was the not the victim of a “prolonged or repeated lack of supervision when he was only left for five minutes and there was no evidence that the child was not cared for properly.

CYS argued that it had established child abuse consisting of a “non-accidental serious physical injury” under 23 Pa. C.S. §6303(b)(1)(i). The court rejected this, appling the rule in P.R. v. DPW, 569 Pa. 123, 801 A.2d 478 (2002), where the Supreme Court held that child abuse was established “upon a showing by the agency, through substantial evidence, that the injury resulted from criminal negligence.”

It defined criminal negligence as follows: A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

"Applying the standard from P.R., Mother’s act or failure to act in this case did not rise to the level of criminal negligence. As the ALJ noted, “[l]eaving the child for a brief (and not prolonged) period of time cannot be construed as a gross deviation from the standard of care that a reasonable person would observe. The mother could not have reasonably believed the child could have extricated himself from the seat and fallen into the heater.” We agree then that Mother’s act or failure to act did not cause a “non-accidental” serious physical injury to subject child."

real property - tax sale - notice

Citimortgage, Inc. v. KDR Investments - Commonwealth Court - August 5, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/1270CD07_8-5-08.pdf

Tax sale void because tax claim bureau (TCB) did not give owner required statutory notice. The TCB had attempted to give proper notice to the prior owner, but the new owner (Citimortgage) which had purchased the property at foreclosure sale, clearly did not get proper statutory notice.

proof of three separate notices required -"With respect to tax sales, the Bureau is required to give three separate types of notice: publication at least 30 days prior to the sale; notification to the owner by certified mail at least 30 days prior to the sale; and posting of the property at least ten days prior to the sale....“If any of the three types of notice is defective, the tax sale is void” ....The Bureau bears the burden of proving strict compliance with applicable notice provisions."

due process requires proper notice - "Due process requires that an owner be given notice prior to property being sold at a tax sale. As our Supreme Court has explained: 'Somehow, over the years, taxing authorities have lost sight of the fact that it is a momentous event under the United States and the Pennsylvania Constitutions when a government subjects a citizen’s property to forfeiture for the non-payment of taxes…. The collection of taxes…may not be implemented without due process of law that is guaranteed in the Commonwealth and federal constitutions; and this due process, as we have stated here, requires at a minimum that an owner of land be actually notified by government, if reasonably possible, before his land is forfeited by the state'....Because of these due process concerns, the “[n]otice provisions of the [Tax Sale] Law are to be strictly construed, and there must be strict compliance with such provisions to guard against deprivation of property without due process of law.”

strict compliance with statutory notice provisions required - Section 602(e)(1) of the Tax Sale Law [72 P.S. §5860.692] obligated the Bureau to give notice to the current owner “[a]t least thirty (30) days before the date of the sale, by United States certified mail.” It did not do so. Strict compliance with all notice requirements contained in the Tax Sale Law is an absolute requirement. The Bureau must be able to produce evidence that it gave this notice to the one who owns the property on the day of the tax sale. If the Bureau cannot produce this proof, the tax sale is invalid.

disability - misc. issues

Burton v. Astrue - ED Pa. - July24, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0866P.pdf

ALJ decision erroneous and case remanded.

* ALJ failed to consider evidence subsequent to date last insured (DLI) - “Retrospective diagnosis of an impairment, even if uncorroborated by contemporaneous medical records, but corroborated by lay evidence relating back to the claimed period of disability can support a finding of past impairment.” Newell v. Comm’r, 347 F.3d 541, 547 (3d Cir. 2003)...As the Third Circuit wrote in another case, “[T]he lack of contemporaneous medical evidence of an objective nature is not necessarily determinative as to the onset date, and to the extent the ALJ’s decision was based on a legal determination that the onset date of an impairment had to be proved by such medical evidence, it is erroneous.” Kelley v. Barnhart, 138 Fed. App’x 505, 508 (3d Cir. 2005). The court remands this matter for the ALJ to reconsider his treatment of Plaintiff’s medical evidence subsequent to her date last insured

* ALJ used improper measure of severity - The “burden placed on an applicant at step two [of the sequential disability evaluation] is not an exacting one.” McCrea v. Comm’r of Soc. Sec. Admin., 370 F.3d 357, 360 (3d Cir. 2004). Rather, The step-two inquiry is a de minimis screening device to dispose ofgroundless claims. An impairment or combination of impairments can be found “not severe” only if the evidence establishes a slight abnormality or a combination of slight abnormalities which have no more than a minimal effect on an individual’s ability to work. . . Only those claimants with slight abnormalities that do not significantly limit any basic work activity can be denied benefits at step two. If the evidence presented by the claimant presents more than a slight abnormality, the step-two requirement of “severe” is met, and the sequential evaluation process should continue. Reasonable doubts on severity are to be resolved in favor of the claimant. Newell, 347 F.3d at 546 (internal citations and quotations omitted).

* failure to get treatment - The adjudicator must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. SSR 96-7p

* slowly progressive impairments - “Particularly in the case of slowly progressive impairments, it is not necessary for an impairment to have reached listing severity (i.e., be decided on medical grounds alone) before onset can be established.” SSR 83-20....With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available. In such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process. . . . . . . . How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred.

mortgage foreclosure - Rooker-Feldman Doctrine

Laychock v. Wells Fargo Home Mortgage - ED Pa. - July 23, 2008

http://www.paed.uscourts.gov/documents/opinions/08d0867p.pdf

The Rooker-Feldman doctrine barred borrower's predatory lending claims in federal court against lender, where lender got default judgment mortgage foreclosure in state court, and state court refused borrower's petition to open judgment.

The Rooker-Feldman Doctrine “prevents ‘inferior’ federal courts from sitting as appellate courts for state court judgments.” In re Knapper, 407 F.3d 573, 580 (3d Cir. 2005). Rooker-Feldman applies when: (1) “the federal claimwas actually litigated in state court prior to the filing of the federal action” or (2) “if the federal claim is inextricably intertwined with the state adjudication.” Id.

A federal and state case are “inextricably intertwined” when “the federal court must take an action thatwould negate the state court’s judgment” orwhen the plaintiff’s sought relief “would prevent a state court from enforcing its orders.” Id. at 581. “If the relief requested in the federal action requires determining that the state court’s decision is wrong or would void the state court’s ruling, then the issues are inextricably intertwined and the district court has no subjectmatter jurisdiction to hear the suit.”

The doctrine is implicated here, because all of plaintiff's claims would require the federal court to find that the state court decision, from which there was no appeal, was wrong.

real property - tax sale - notice

Wallace v. Tax Claim Bureau - Cmwlth. Court - 07-28-08 - UNREPORTED MEM. DECISION

http://www.courts.state.pa.us/OpPosting/CWealth/out/777CD07_7-28-08.pdf

Although decedent's survivors had actual notice of upcoming tax sale, they did not receive required statutory notice under Real Estate Tax Sale Law, 72 P.S. 5860.607(a), so tax sale was set aside.

The notice provisions of the RETSL "are to be strictly construed." "Strict compliance with the notice porvisions is essential to prevent the deprivateion of property without due process."

Here, tax claim bureau knew that there were notice problems. The official notice was returned marked "unclaimed." The sheriff's affidavit of posting noted the the property owner was "deceased." And someone other than the owner signed for a notice. All of this triggered a "statutory obligation to go beyond the notice requirements found in Section 602 of the ERTSL and conduct the additional notification efforts provided in Sectin 607.1," which the tax claim bureau failed to do. The TCB made no "additional notification efforts" that "ordinary common sense business practices would dictate" under the circumstances.

This was not a "techical defect" which could be overlooked in "very narrow circumstances. Failure to comply with the statutory notice requirement was a "substantive deficiency" since appellants "never received official, statutorily required notice of the pending tax sale....so far as the appellant was denied the information necessary and the reasonable opportunity to avoid the pending tax sale."

"higher-priced mortgages" - new TILA/HOEPA regs

http://edocket.access.gpo.gov/2008/pdf/E8-16500.pdf

SUMMARY: The Board is publishing final rules amending Regulation Z, which implements the Truth in Lending Act and Home Ownership and Equity Protection Act.

The goals of the amendments are to protect consumers in the mortgage market from unfair, abusive, or deceptive lending and servicing practices while preserving responsible lending and sustainable homeownership; ensure that advertisements for mortgage loans provide accurate and balanced information and do not contain misleading or deceptive representations; and provide consumers transactionspecific disclosures early enough to use while shopping for a mortgage.

The final rule applies four protections to a newlydefined category of higher-priced mortgage loans secured by a consumer’s principal dwelling, including a prohibition on lending based on the collateral without regard to consumers’ ability to repay their obligations from income, or from other sources besides the collateral. The revisions apply two new protections to mortgage loans secured by a consumer’s principal dwelling regardless of loan price, including a prohibition on abusive servicing practices.

The Board is also finalizing rules requiring that advertisements provide accurate and balanced information, in a clear and conspicuous manner, about rates, monthly payments, and other loan features. The advertising rules ban several deceptive or misleading advertising practices, including representations that a rate or payment is ‘‘fixed’’ when it can change. Finally, the revisions require creditors to provide consumers with transaction-specific mortgage loan disclosures within three business days after application and before they pay any fee except a reasonable fee for reviewing credit history.

DATES: This final rule is effective on October 1, 2009, except for § 226.35(b)(3)) which is effective on April 1, 2010. See part XIII, below, regarding mandatory compliance with § 226.35(b)(3) on mortgages secured by manufactured housing.

SUPPLEMENTARY INFORMATION:
I. Summary of Final Rules
A. Rules To Prevent Unfairness, Deception, and Abuse
B. Revisions To Improve Mortgage Advertising
C. Requirement To Give Consumers Disclosures Early

II. Consumer Protection Concerns in the Subprime Market
A. Recent Problems in the Mortgage Market
B. Market Imperfections That Can Facilitate Abusive and Unaffordable Loans

III. The Board’s HOEPA Hearings
A. Home Ownership and Equity Protection Act (HOEPA)
B. Summary of 2006 Hearings
C. Summary of June 2007 Hearing
D. Congressional Hearings
IV. Interagency Supervisory Guidance

V. Legal Authority
A. The Board’s Authority Under TILA Section 129(l)(2)
B. The Board’s Authority Under TILA Section 105(a)

VI. The Board’s Proposal
A. Proposals To Prevent Unfairness, Deception, and Abuse
B. Proposals To Improve Mortgage Advertising
C. Proposal To Give Consumers Disclosures Early

VII. Overview of Comments Received

VIII. Definition of ‘‘Higher-Priced Mortgage Loan’’—§ 226.35(a)
A. Overview
B. Public Comment on the Proposal
C. General Approach
D. Index for Higher-Priced Mortgage Loans
E. Threshold for Higher-Priced Mortgage Loans
F. The Timing of Setting the Threshold
G. Proposal To Conform Regulation C (HMDA)
H. Types of Loans Covered Under § 226.35

IX. Final Rules for Higher-Priced Mortgage Loans and HOEPA Loans
A. Overview
B. Disregard of Consumer’s Ability To Repay—§§ 226.34(a)(4) and 226.35(b)(1)
C. Prepayment Penalties—§ 226.32(d)(6) and (7); § 226.35(b)(2)
D. Escrows for Taxes and Insurance—§ 226.35(b)(3)
E. Evasion Through Spurious Open-End Credit—§ 226.35(b)(4)

X. Final Rules for Mortgage Loans—§ 226.36
A. Creditor Payments to Mortgage Brokers—§ 226.36(a)
B. Coercion of Appraisers—§ 226.36(b)

drivers license - refusal to take breath test - clear warning

Yourick v. DOT - Commonwealth Court- July 23, 21008

http://www.courts.state.pa.us/OpPosting/CWealth/out/2280CD07_7-23-08.pdf

Alas, poor Yourick!

She was arrested for DUI and asked to take a blood alcohol test, which she refused. DOT then proposed to suspend her license because of that refusal, and she appealed. And what ho! The warning that the police gave to her about the consequences of a refusal to submit to such testing was held to be ambiguous and not "legally sufficient" to make her refusal knowing and conscious.

The warning stated that "if you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence." (emphasis added) Claimant testified that she understood this to mean that her license would not be suspended if she refused chemical testing because she never had a prior refusal and had never before been sentenced for driving under the influence. She voiced her concern about this to the officer, who told her only that she didn't have a right to speak to anyone about this.

The trial and appellate courts found Licensee's understanding to be a "reasonable interpretation. Construing the ambiguous language against the Department as the drafter of the warnings, as we must, we hold that the warning given to Licensee was not sufficient to specifically warn her that a refusal to submit to chemical testing would result in the suspension of her operating privilege. As such, the Department failed to meet its burden of proof and the trial court did not err in sustaining Licensee’s appeal."

The Department reads the above-recited first “if clause” to apply to the entire provision, meaning that any refusal will result in a 12-month suspension and, further, that suspension could be increased to 18 months if the licensee has a history of prior refusals or convictions. However, the warning can be read another way. The qualifying language at the end of the sentence, i.e., “if you have prior refusals or have been previously sentenced…,” can be read to apply to the entire warning. Read that way, the suspension penalty applies only if the licensee has previously refused a test or previously been sentenced. The resulting suspension can range between 12 and 18 months. A passage that can be read two ways is ambiguous, and it is axiomatic that any ambiguity is to be construed against the drafter of the document if the other party’s interpretation is reasonable.

The trial court correctly found that the warning was "poorly drafted and vague, since a comma was placed randomly where perhaps a period might have been” and concluded that this vague language confused the Licensee and prevented her from making a knowing and conscious refusal to submit to chemical testing and that, therefore, a suspension was not warranted. N.B. Claimant's prior employment involved extensive work at a medical center, interpreting consent and waiver forms.

To sustain a license suspension under sec. 1547 of the Vehicle Code, DOT must prove that the driver (1) was placed under arrest for driving while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his or her driver’s license. The last prong of the Department’s burden requires “a precisely enunciated warning that a driver’s license will be revoked.” If the Department meets its initial burden, the burden then shifts to the licensee to show that her refusal was not knowing or conscious or that she was physically unable to take the test. Where a licensee is not adequately informed of the consequences of a refusal, it is irrelevant whether the refusal to submit to chemical testing was knowing and conscious.

The "issue is whether the warning given to Licensee was legally sufficient The law required the Department to prove that Licensee was specifically warned that a refusal to submit to chemical testing would result in the suspension of her driving privilege. We conclude that the Department was not able to meet its burden in this regard."

real property - sales agreement - breach - consequential damages

Quinn v. Bupp - Superior Court - June 21, 2008

http://www.courts.state.pa.us/OpPosting/Superior/out/a09030_08.pdf

Seller breached sales agreement concerning commercial property. The trial court ordered specific performance, but both parties appealed concerning consequential damages. The appellate court held that

1) increased cost of borrowing - Buyer could not recover increased borrowing costs due to increase in mortgage interest. Following the rule in Rusiski v. Pribonic, 515 A.2d 507 (Pa. 1986), the court held that "under contract principles, damages must be such as would naturally and ordinarily follow from the breach, must have been reasonably foreseeable and within the contemplation of the parties at the time they made the contract and must be capable of being proved with reasonable certainty. Changes in interest rates, while foreseeable, are not capable of being proven with reasonable certainty. Drastic fluctuations in interest rates over the recent past render it speculative for a court to award interest as damages in specific performance decrees.

2) lost profits - Buyer could recover the profits he lost because of the breach, since they were foreseeable, ascertainable, and readily calculable. They would have been paid to the buyer if the seller had not wrongfully refused to comply with the sales agreement

bankruptcy - exemption - objection - 30-day limit

In re Reilly - 3rd Circuit - July 21, 2008

http://www.ca3.uscourts.gov/opinarch/064290p.pdf

A Chapter 7 trustee who does not lodge a timely objection to a debtor’s claim of exemption of personal property may not move to sell the property if he later learns that the property value exceeds the amount of the claimed exemption.

Where, as here, the debtor indicates the intent to exempt her entire interest in a given property by claiming an exemption of its full value and the trustee does not object in a timely manner, the debtor is entitled to the property in its entirety.

Debtor is a cook with a one-person catering business. In her Schedule B and Schedule C, she listed "business equipment" as personal property with a value of $10,718 and claimed an exemption for the full value under 11 U.S.C. § 522(d)(6) and 11 U.S.C. § 522(d)(5).

The trustee did not object to the exemption within the 30-day period prescribed by Fed. R. Bank. P. 4003(b). He later sought an appraisal of the business equipment and determined it to have a value of approximately $17,200. He then filed a motion before the Bankruptcy Court to sell the business equipment in order to recoup the value, less the $10,718 exemption, for the bankruptcy estate. The Bankruptcy Court rejected this motion and agreed with the debtor that the property was fully exempt from the bankruptcy estate because the trustee had not filed a timely objection to the claim of exemption.

Under Fed. R. Bankr. P. 4003(b), the trustee, as a party in interest, has 30 days from the close of the creditors’ meeting under § 341(a) (or the date of filing any supplemental schedules or amendment to the exempt-property list, whichever is later) to object to any exemptions a debtor claimed on his or her Schedule C. If no objection is made, “the property claimed as exempt on [the Schedule C] is exempt.” 11 U.S.C. § 522(l).

Recognizing a split of authority of the issue, and relying primarily on Taylor v. Freeland & Kronz, 503 U.S. 638 (1992), the court rejected the trustee's argument that Rule 4003 and § 522(l) only place a 30-day limit on the trustee’s ability to object to an exemption on the ground that it was not properly taken—that there is no statutory basis for claiming the exemption—and does not control objections to property valuation.

The court said that its holding "accords with bankruptcy’s promise of a fresh start. Once the period for objection lapses, all parties involved know what property belongs to the bankruptcy estate and what remains with the debtor. The debtor can then use that property with the knowledge that it is her own and will not be subject to later liquidation for the benefit of creditors. This is not the case where the debtor claims an exemption in an amount less than the value listed on the schedules. In that circumstance, the trustee is entitled to claim for the bankruptcy estate the value of the property in excess of the exemption sought, without the need for a timely objection....But where the debtor lists a value for the property and claims an exemption in the same amount, the trustee is on notice of the debtor’s valuation and has ample time to seek confirmation that the debtor’s claimed value represents the true worth of the asset."

The trustee’s concern that the holding today will encourage gamesmanship among crafty debtors who may seek to undervalue their property with the hope of having it bypass the bankruptcy estate is answer by the fact that "there are significant protections in place for both the trustee and the bankruptcy estate....Moreover, on the facts here, there is no reason to suspect bad behavior on the part of the debtor. Indeed, it is quite to the contrary. If the trusteee discovered bad faith by the debtor, bankruptcy and criminal law allow recourse."

consumer - used cars - proposed FTC reg

http://edocket.access.gpo.gov/2008/pdf/E8-16634.pdf

SUMMARY: The FTC requests public comments on its Used Motor Vehicle Trade Regulation Rule.

DATES: Written comments relating to the Used Car Rule must be received by September 19, 2008.

I. Background
The Commission promulgated the Used Car Rule in 1984 and the Rule became effective in 1985.2 The Used Car Rule is intended primarily to prevent oral misrepresentations and unfair omissions of material facts by used car dealers concerning warranty coverage. \
To accomplish that goal, the Rule provides a uniform method for disclosing warranty information on a window sticker called the ‘‘Buyers Guide’’ that dealers are required to display on used cars. The Rule requires used car dealers to disclose on the Buyers Guide whether they are offering a used car for sale with a dealer’s warranty and, if so, the basic terms, including the duration of coverage, the percentage of total repair costs to be paid by the dealer, and the exact systems covered by the warranty.
The Rule additionally provides that the Buyers Guide disclosures are to be incorporated by reference into the sales contract, and are to govern in the event of an inconsistency between the Buyers Guide and the sales contract. The Rule requires Spanish language versions of the Buyers Guide when dealers conduct sales in Spanish.

III. Issues for Comment
The Commission requests written comment on any or all of the following questions. The Commission requests that responses to its questions be as specific as possible, including a reference to the question being answered, and reference to empirical data or other evidence wherever available and appropriate.
A. General Issues
(1) Is there a continuing need for the Rule? Why or why not?
(2) What benefits has the Rule provided to consumers? What evidence supports the asserted benefits?
(3) What modifications, if any, should be made to the Rule to increase its benefits to consumers?
0 F(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the costs the Rule imposes on businesses, and in particular on small businesses?
(c) How would these modifications affect the benefits to consumers?
(4) What impact has the Rule had on the flow of truthful information to consumers and on the flow of deceptive information to consumers?
(5) What significant costs has the Rule imposed on consumers? What evidence supports the asserted costs?
(6) What modifications, if any, should be made to the Rule to reduce the costs imposed on consumers?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the benefits provided by the Rule?
(7) How have the 1995 amendments to the Rule affected purchasers of used motor vehicles? How have the 1995 amendments to the Rule affected used motor vehicle dealers? Please provide any evidence that has become available since 1995 concerning the costs, benefits, and effectiveness of the Rule. Does this new information indicate that the Rule should be modified? If so, why, and how? If not, why not?
(8) What benefits, if any, has the Rule provided to businesses, and in particular to small businesses? What evidence supports the asserted benefits?
(9) What modifications, if any, should be made to the Rule to increase its benefits to businesses, and in particular to small businesses?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the costs the Rule impose on businesses, and in particular on small businesses?
(c) How would these modifications affect the benefits to consumers?
(10) What significant costs, including costs of compliance, has the Rule imposed on businesses, and in particular on small businesses? What evidence supports the asserted costs?
(11) What modifications, if any, should be made to the Rule to reduce the costs imposed on businesses, and in particular on small businesses?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the benefits provided by the Rule?
(12) What evidence is available concerning the degree of industry compliance with the Rule? To what extent has there been a reduction in deceptive oral representations and unfair omissions made by used car dealers concerning warranty coverage since the Rule was issued? Please provide any supporting evidence. Does this evidence indicate that the Rule should be modified? If so, why, and how? If not, why not?
(13) What modifications, if any, should be made to the Rule to account for changes in relevant technology or economic conditions? What evidence supports the proposed modifications?
(14) Does the Rule overlap or conflict with other federal, state, or local laws or regulations? If so, how?
(a) What evidence supports the asserted conflicts?
(b) With reference to the asserted conflicts, should the Rule be modified? If so, why, and how? If not, why not?

child support enforcement - medical support - federal regs

http://edocket.access.gpo.gov/2008/pdf/E8-15771.pdf

SUMMARY: This regulation revises Federal requirements for establishing and enforcing medical support obligations in Child Support Enforcement (CSE) program cases receiving services under title IV–D of the Social Security Act (the Act).

The changes: require that all support orders in the IV–D program address medical support; redefine reasonable-cost health insurance; require health insurance to be accessible, as defined by the State; and make conforming changes to the Federal interstate, substantialcompliance audit, and State selfassessment requirements.

DATES: Effective Date: This regulation is effective July 21, 2008.

Pennsylvania Bulletin Highlights, July 19, 2008

Link: http://www.pabulletin.com/secure/data/vol38/38-29/index.html

Highlights of items of interest to the Poverty Law Community:

Recent Actions during the 2008 Regular Session of the General Assembly
http://www.pabulletin.com/secure/data/vol38/38-29/1316.html

DPW - child care - income limits - increase
http://www.pabulletin.com/secure/data/vol38/38-29/1339.html

DPW - MA - prior authorization (proposed) - radiology services
http://www.pabulletin.com/secure/data/vol38/38-29/1340.html

Sign language interpreters/transliterators - proposed final rules filed with IRRC
http://www.pabulletin.com/secure/data/vol38/38-29/1349.html

UC - willful misconduct - drug testing - right to challenge drug test

Cinram Manufacturing, LLC v. UCBR - July 18, 2008 - Commonwealth Court - unreported memorandum decision

http://www.courts.state.pa.us/OpPosting/CWealth/out/2051CD07_7-18-08.pdf

The court upheld the Board decision that the employer had not proved willful misconduct, despite having produced drug test results - to which claimant did not object - showing a positive drug test.

Claimant produced countervailing evidence, including a letter from his doctor detailing how having taken cough medicine and eaten a poppy seed roll could have produced a false positive result. The referee and Board found that claimant's evidence was “credible and more compelling and logical” than that presented by employer and established that the test result was a false positive.

Under Section 402(e.1) of the Law, an employee is ineligible for unemployment compensation in any week in which (a) his unemployment is due to discharge or temporary suspension from work due to failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy, and (b) the drug test is not requested or implemented in violation of the law or of a collective bargaining agreement. 43 P.S. § 802(e.1). The employer introduced evidence which could have satisfied all requirements of Section 402(e.1) had it been accorded different weight and persuasive value.

However, proof of the elements of sec. 402(e.1) are not, per se, dispositive. Claimant has a right to dispute the accuracy of the drug test. The court rejected as "absurd" the employer's argument that, because it established the required elements listed in sec. 402(e.1), the referee and Board should not have examined the accuracy of the drug test.

The Board found credible Claimant’s evidence that lawful items he had consumed caused his drug test to produce a false positive result. While Employer interprets this as placing an additional burden on employers, it is merely the Board serving in its capacity as fact-finder. In unemployment compensation cases, the Board serves as final fact-finder and resolves any conflicts in evidence or credibility of witnesses.

The Board did not ignore the the drug test. Rather, it was given "probative value." UGI Utilities, Inc. v. UCBR, 851 A.2d 240, 252 (Pa. Cmwlth. 2004). The Board considered the positive test result, but accorded it no credibility, instead accepting substantial evidence which impugned its reliability. The Board clearly concluded that Claimant rebutted the positive test results with credible evidence that consumption of poppy seed roll and over-the-counter medicine resulted in a false positive test. Based on that, the Board concluded that he did not violate employer’s drug policy. "We are not in a position to question the Board’s finding. Thus, there is no reason for us to reverse this decision."