Deal v. PennDOT - Cmwtlh. Court - November 5, 2009 - unpublished memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/344CD09_11-5-09.pdf
silence - In Broadbelt v. DOT, 903 A.2d 636 (Pa. Cmwlth. 2006), our court determined that the licensee’s silence when asked to submit to chemical testing after having been read the DL-26 form, constituted a refusal in violation of Section 1547 of the Vehicle Code. This court has consistently held that “police officers are not required to spend effort either cajoling the [licensee] or spend time waiting to see if the [licensee] will ultimately change his mind.” King v. DOT, 828 A.2d 1, 5, n.8 (Pa. Cmwlth.), appeal denied, 577 Pa. 738, 848 A.2d 931 (2002)
location of request/refusal - Our Supreme Court in DOT v. Scott, 546 Pa. 241, 253, 684 A.2d 539, 545 (1996), stated that: the police must advise the motorist that in making this decision, he does not have the right to speak with counsel, or anyone else, before submitting to chemical testing, and further, if the motorist exercises his right to remain silent as a basis for refusing to submit to testing, it will be considered a refusal and he will suffer the loss of his driving privileges.
[I]t would be absurd for an officer to drive a licensee to the situs of the breath, blood or urine testing equipment, which could be miles away from the scene of arrest, in order to allow the licensee to look at the equipment prior to the licensee’s silence being considered a refusal. Requiring a police officer to drive the licensee to the situs of testing when the licensee has already been properly warned but has refused chemical testing, either explicitly or through his silence, would fail to serve the purposes of the current Implied Consent Law and would be a waste of valuable and limited police, and State Trooper, resources.
As police officers are now required to give licensees warnings prior to asking them to consent to chemical testing, and such warnings state that “remaining silent when asked to submit to chemical testing will constitute a refusal,” remaining silent will constitute a refusal, irrespective of where the licensee is at the time the warnings are given.
Thursday, November 05, 2009
Thursday, October 29, 2009
drivers license - refusal to take chemical test - knowing refusal - influence of prescr. drug and head injury
Sitoski v. PennDOT - Cmwlth. Court - October 29, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/431CD09_10-29-09.pdf
If a licensee takes a prescription drug, knowing its side effects, and then sustains a head injury in an accident, the licensee can establish an inability to make a knowing and conscious refusal by presenting expert medical testimony that the head injury played a greater role in the refusal than the prescription drug.
Here, the licensee presented medical testimony, but not about whether licensee’s closed-head injury played a greater role than the prescription sleep medication in his inability to make a knowing and conscious refusal. The doctor testified only that the sleep medication in combination with the closed-head injury made licensee unable to make a knowing and conscious refusal. The suspension, therfore, was proper.
__._,_.___
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/431CD09_10-29-09.pdf
If a licensee takes a prescription drug, knowing its side effects, and then sustains a head injury in an accident, the licensee can establish an inability to make a knowing and conscious refusal by presenting expert medical testimony that the head injury played a greater role in the refusal than the prescription drug.
Here, the licensee presented medical testimony, but not about whether licensee’s closed-head injury played a greater role than the prescription sleep medication in his inability to make a knowing and conscious refusal. The doctor testified only that the sleep medication in combination with the closed-head injury made licensee unable to make a knowing and conscious refusal. The suspension, therfore, was proper.
__._,_.___
child abuse - expungement - founded report - finality of appeal
LC v. DPW - Cmwlth. Court - October 29, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/189CD09_10-29-09.pdf
DPW was not required to wait until appellant's criminal appeals were finally resolved to list him as an abuser in a "founded" report. Section 6303 of the Child Protective Services Law defines “founded report” as a child abuse report made pursuant to “any judicial adjudication” of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse. 23 Pa. C.S. §6303. Thus, DPW was not required to wait until L.C. exhausted his appeals to list him as an abuser in a “founded report.”
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/189CD09_10-29-09.pdf
DPW was not required to wait until appellant's criminal appeals were finally resolved to list him as an abuser in a "founded" report. Section 6303 of the Child Protective Services Law defines “founded report” as a child abuse report made pursuant to “any judicial adjudication” of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse. 23 Pa. C.S. §6303. Thus, DPW was not required to wait until L.C. exhausted his appeals to list him as an abuser in a “founded report.”
RESPA - anti-kickback provision - private right of action - no overcharge allegation requiredd
Alston et al. v. Countrywide Financial Corp. - 3d Cir. - October 28, 2009
http://www.ca3.uscourts.gov/opinarch/084334p.pdf
This is a class action brought by homebuyers who sought to recover statutory treble damages pursuant to §8(d)(2) of the Real Estate Settlement Procedures Act of 1974 (“RESPA”), 12 U.S.C. § 2607(d)(2).
Plaintiffs alleged that their private mortgage insurance premiums were channeled into an unlawful “captive reinsurance arrangement”—essentially, a kickback scheme—operated by their mortgage lender and its affiliated reinsurer, in violation of RESPA §8(a) and §8(b), 12 U.S.C. § 2607(a)-(b).*
The thrust of the complaint is that, in enacting and amending section 8, Congress bestowed upon the consumer the right to a real estate settlement free from unlawful kickbacks and unearned fees, and Countrywide’s invasion of that statutory right, even without a resultant overcharge, was an injury-in-fact for purposes of Article III standing. The District Court disagreed and dismissed the complaint without prejudice for lack of jurisdiction.
What is before us for decision turns on a question of statutory interpretation—does or does not the plain language of RESPA section 8(d)** indicate that Congress created a private right of action without requiring an overcharge allegation? We conclude that it does. Accordingly, we will reverse the Order of the District Court.
The plain language of RESPA section 8 does not require plaintiffs to allege an overcharge. The best indication of Congress’s intent in this regard is the method it prescribed for the calculation of statutory damages in [other sections of RESPA]....Critically, none of these provisions contains the word “overcharge” or otherwise implies that the plaintiff must allege that he or she paid more than he or she otherwise would have paid. See id. § 2607(a), (b), (d)(2). Instead, damages are fixed at three times the total charge paid by the consumer in exchange for a settlement service, and not merely any overcharge.
We agree with plaintiffs and the United States, intervening on plaintiffs’ behalf, that the provision of statutory damages based on the entire payment, not on an overcharge, is a certain indication that Congress did not intend to require an overcharge to recover under section 8 of RESPA.
______________
* Section 8(a) prohibits “any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.” 12 U.S.C. § 2607(a). Section 8(b) prohibits unearned fees: “No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service . . . other than for services actually performed.” Id. § 2607(b).
** Congress authorized private actions against a person who violates section 8. As amended in 1983, section 8(d)(2) provides that “[a]ny person or persons who violate the prohibition or limitations of this section shall be jointly and severally liable to the person or persons charged for the settlement service involved in the violation in an amount equal to three times the amount of any charge paid for such settlement service.” Id.
http://www.ca3.uscourts.gov/opinarch/084334p.pdf
This is a class action brought by homebuyers who sought to recover statutory treble damages pursuant to §8(d)(2) of the Real Estate Settlement Procedures Act of 1974 (“RESPA”), 12 U.S.C. § 2607(d)(2).
Plaintiffs alleged that their private mortgage insurance premiums were channeled into an unlawful “captive reinsurance arrangement”—essentially, a kickback scheme—operated by their mortgage lender and its affiliated reinsurer, in violation of RESPA §8(a) and §8(b), 12 U.S.C. § 2607(a)-(b).*
The thrust of the complaint is that, in enacting and amending section 8, Congress bestowed upon the consumer the right to a real estate settlement free from unlawful kickbacks and unearned fees, and Countrywide’s invasion of that statutory right, even without a resultant overcharge, was an injury-in-fact for purposes of Article III standing. The District Court disagreed and dismissed the complaint without prejudice for lack of jurisdiction.
What is before us for decision turns on a question of statutory interpretation—does or does not the plain language of RESPA section 8(d)** indicate that Congress created a private right of action without requiring an overcharge allegation? We conclude that it does. Accordingly, we will reverse the Order of the District Court.
The plain language of RESPA section 8 does not require plaintiffs to allege an overcharge. The best indication of Congress’s intent in this regard is the method it prescribed for the calculation of statutory damages in [other sections of RESPA]....Critically, none of these provisions contains the word “overcharge” or otherwise implies that the plaintiff must allege that he or she paid more than he or she otherwise would have paid. See id. § 2607(a), (b), (d)(2). Instead, damages are fixed at three times the total charge paid by the consumer in exchange for a settlement service, and not merely any overcharge.
We agree with plaintiffs and the United States, intervening on plaintiffs’ behalf, that the provision of statutory damages based on the entire payment, not on an overcharge, is a certain indication that Congress did not intend to require an overcharge to recover under section 8 of RESPA.
______________
* Section 8(a) prohibits “any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.” 12 U.S.C. § 2607(a). Section 8(b) prohibits unearned fees: “No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service . . . other than for services actually performed.” Id. § 2607(b).
** Congress authorized private actions against a person who violates section 8. As amended in 1983, section 8(d)(2) provides that “[a]ny person or persons who violate the prohibition or limitations of this section shall be jointly and severally liable to the person or persons charged for the settlement service involved in the violation in an amount equal to three times the amount of any charge paid for such settlement service.” Id.
Wednesday, October 28, 2009
UC - appeal - statement of objections - PRAP 1513(d) - Deal, et al.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1170CD08_10-28-09.pdf - unreported
Another appeal quashed because the claimant's "general statement of objections to the Board's order in the petition for review fails to fairly embrace the issues raised in his brief filed by his attorney," following Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005) and Maher v. UCBR (Pa. Cmwlth., No. 1843 C.D. 2008, filed October 27, 2009) and rejecting Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008).
Another appeal quashed because the claimant's "general statement of objections to the Board's order in the petition for review fails to fairly embrace the issues raised in his brief filed by his attorney," following Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005) and Maher v. UCBR (Pa. Cmwlth., No. 1843 C.D. 2008, filed October 27, 2009) and rejecting Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008).
UC- vol. quit - follow-the-spouse - necessity
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/652CD09_10-28-09.pdf - unreported
Benefits denied in follow-the-spouse case where spouse took new job in South Carolina to improve his career, and not as a matter of necessity. "It wasn't relocate or else."
“[I]n a following the spouse case the reason for the spouse’s relocation must be beyond the spouse’s control and not a matter of personal preference.” Procito v. UCBR, 945 A.2d 261, 266 (Pa. Cmwlth. 2008). Further, “[w]here a claimant terminates employment to join a relocating spouse, the claimant must demonstrate an economic hardship in maintaining two residences or that the move has posed an insurmountable commuting problem.” Sturpe v. UCBR, 823 A.2d 239, 242 (Pa. Cmwlth. 2003).
Benefits denied in follow-the-spouse case where spouse took new job in South Carolina to improve his career, and not as a matter of necessity. "It wasn't relocate or else."
“[I]n a following the spouse case the reason for the spouse’s relocation must be beyond the spouse’s control and not a matter of personal preference.” Procito v. UCBR, 945 A.2d 261, 266 (Pa. Cmwlth. 2008). Further, “[w]here a claimant terminates employment to join a relocating spouse, the claimant must demonstrate an economic hardship in maintaining two residences or that the move has posed an insurmountable commuting problem.” Sturpe v. UCBR, 823 A.2d 239, 242 (Pa. Cmwlth. 2003).
Social Security Number - prohibition against disclosure - F.R. Civ. Pa. 5.2(a)
Federal Rules of Civil Procedure 5.2(a) (Privacy Protections for Filings Made with the Court) states that any court filing "may include only" the last 4 digits of a person's social security number and just the year of a person's birth.
A federal district court in Minnesota (Engeseth v. County of Isanti) recently sanctioned an attorney $5,000 for including the full social security numbers of 179 people in an affidavit filed with the court and discussed the serious threat of identity theft.
A federal district court in Minnesota (Engeseth v. County of Isanti) recently sanctioned an attorney $5,000 for including the full social security numbers of 179 people in an affidavit filed with the court and discussed the serious threat of identity theft.
Tuesday, October 27, 2009
UC - appeal - statement of objections - PRAP 1513(d) - Deal v. UCBR
Maher v. UCBR - Cmwlth. Court -
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1843CD08_10-27-09.pdf
Pro se attorney claimant appealed an adverse UCBR decision to Commonwealth Court by a Petition for Review which listed the following “Objections to the Determination: 6. The determination of the Unemployment Compensation Board of Review is not supported by substantial evidence. 7. The determination of the Unemployment Compensation Board of Review is based on errors of law."
Majority
The Court granted the UCBR's Motion to Strike the Petition for failing to preserve any issue for the court’s review, relying on Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005), Patla v. UCBR, 962 A.2d 724 (Pa. Cmwlth. 2008) and Jimoh v. UCBR, 902 A.2d 608 (Pa. Cmwlth. 2006), holding that a petition that merely reiterates the court's standard of review and fails to articulate specific objections to the Board’s decision does not satisty Pa. R.A.P. 1513(d), rejecting Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008).
Rule 1513(d) requires “'a general statement of the objections to the order or other determination.' This general statement will be deemed to include every subsidiary question fairly comprised therein. Id. However, more than a restatement of our standard of review is required. Deal. We will not consider issues raised in a party’s brief when they are not sufficiently addressed in the petition for review."
Even though the appellate rules state that “[t]he statement of objections will be deemed to include every subsidiary question fairly comprised therein,” the court held, as it did in Deal, that "a petition for review under Pa. R.A.P. 1513(d) must state its objections with “sufficient specificity to permit the conversion of an appellate document to an original jurisdiction pleading and vice versa should such action be necessary to assure proper judicial disposition.” Pa. R.A.P. 1513, Note." [emphasis in opinion].
Dissent
Judge Leavitt dissented, stating that the "premise to the majority’s decision is that a petition for review must articulate specific objections to the underlying agency decision or face dismissal. That premise, however, is directly contrary to the plain language of the applicable rule of appellate procedure, PA. R.A.P. 1513, which requires only a “general statement” of a petitioner’s objections. How specific must a general statement of objections be? Because Claimant’s petition for review complied with Rule 1513, I would deny the Board’s motion to strike the petition....Rule 1513(d) could not be clearer. In an appellate petition for review, only a “general statement” of a petitioner’s objections to the order or determination is required."
"The word 'general' in this context is free from any ambiguity, and this Court may not disregard the letter of the rule. 1 Pa. C.S. §1921(b). Quite simply, 'general' does not mean 'specific;' it means the opposite of 'specific.'”
The dissent prefered the reasoning in Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008), where the court "offered a better approach for evaluating whether a petition for review contains a “general statement” of issues. In that case, the claimant raised two issues in his petition for review: (1) “the Board failed to ‘review all the facts;’” and (2) “‘this case is not strong enough’ to withhold unemployment compensation benefits.” Pearson, 954 A.2d at 1263. Applying the proviso that “[t]he statement of objections will be deemed to include every subsidiary question fairly comprised therein,” PA. R.A.P. 1513(d), we construed the claimant’s “general statement” of issues to challenge the sufficiency of the evidence and whether the employer had sustained its burden of proof. In doing so, we looked beyond the four corners of the petition for review and noted that “[c]laimant sufficiently addresses these arguments in his handwritten appellate brief.” Pearson, 954 A.2d at 1263."
"Pearson recognizes that a petition for review should not be considered in a vacuum. Indeed, Rule 1513 requires the petitioner to attach a copy of the challenged order or determination, i.e., the adjudication, to the petition for review. By putting the 'general statement' together with the attached adjudication, 'every subsidiary question fairly comprised' can be discussed. The Pearson approach is preferable to the drastic measure of striking a petition for review on a technicality and effectively putting a litigant out of court."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1843CD08_10-27-09.pdf
Pro se attorney claimant appealed an adverse UCBR decision to Commonwealth Court by a Petition for Review which listed the following “Objections to the Determination: 6. The determination of the Unemployment Compensation Board of Review is not supported by substantial evidence. 7. The determination of the Unemployment Compensation Board of Review is based on errors of law."
Majority
The Court granted the UCBR's Motion to Strike the Petition for failing to preserve any issue for the court’s review, relying on Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005), Patla v. UCBR, 962 A.2d 724 (Pa. Cmwlth. 2008) and Jimoh v. UCBR, 902 A.2d 608 (Pa. Cmwlth. 2006), holding that a petition that merely reiterates the court's standard of review and fails to articulate specific objections to the Board’s decision does not satisty Pa. R.A.P. 1513(d), rejecting Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008).
Rule 1513(d) requires “'a general statement of the objections to the order or other determination.' This general statement will be deemed to include every subsidiary question fairly comprised therein. Id. However, more than a restatement of our standard of review is required. Deal. We will not consider issues raised in a party’s brief when they are not sufficiently addressed in the petition for review."
Even though the appellate rules state that “[t]he statement of objections will be deemed to include every subsidiary question fairly comprised therein,” the court held, as it did in Deal, that "a petition for review under Pa. R.A.P. 1513(d) must state its objections with “sufficient specificity to permit the conversion of an appellate document to an original jurisdiction pleading and vice versa should such action be necessary to assure proper judicial disposition.” Pa. R.A.P. 1513, Note." [emphasis in opinion].
Dissent
Judge Leavitt dissented, stating that the "premise to the majority’s decision is that a petition for review must articulate specific objections to the underlying agency decision or face dismissal. That premise, however, is directly contrary to the plain language of the applicable rule of appellate procedure, PA. R.A.P. 1513, which requires only a “general statement” of a petitioner’s objections. How specific must a general statement of objections be? Because Claimant’s petition for review complied with Rule 1513, I would deny the Board’s motion to strike the petition....Rule 1513(d) could not be clearer. In an appellate petition for review, only a “general statement” of a petitioner’s objections to the order or determination is required."
"The word 'general' in this context is free from any ambiguity, and this Court may not disregard the letter of the rule. 1 Pa. C.S. §1921(b). Quite simply, 'general' does not mean 'specific;' it means the opposite of 'specific.'”
The dissent prefered the reasoning in Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008), where the court "offered a better approach for evaluating whether a petition for review contains a “general statement” of issues. In that case, the claimant raised two issues in his petition for review: (1) “the Board failed to ‘review all the facts;’” and (2) “‘this case is not strong enough’ to withhold unemployment compensation benefits.” Pearson, 954 A.2d at 1263. Applying the proviso that “[t]he statement of objections will be deemed to include every subsidiary question fairly comprised therein,” PA. R.A.P. 1513(d), we construed the claimant’s “general statement” of issues to challenge the sufficiency of the evidence and whether the employer had sustained its burden of proof. In doing so, we looked beyond the four corners of the petition for review and noted that “[c]laimant sufficiently addresses these arguments in his handwritten appellate brief.” Pearson, 954 A.2d at 1263."
"Pearson recognizes that a petition for review should not be considered in a vacuum. Indeed, Rule 1513 requires the petitioner to attach a copy of the challenged order or determination, i.e., the adjudication, to the petition for review. By putting the 'general statement' together with the attached adjudication, 'every subsidiary question fairly comprised' can be discussed. The Pearson approach is preferable to the drastic measure of striking a petition for review on a technicality and effectively putting a litigant out of court."
Friday, October 23, 2009
debt collection - "communications" - automated telephone calls
Inman v. NCO Financial Systems - ED Pa. - October 21, 2009
http://www.paed.uscourts.gov/documents/opinions/09D1288P.pdf
Defendant debt collector's automated messages left on Plaintiff's answering machine consituted "communications" under the Fair Debt Collection Pracctices Act, 15 USC sec. 1692a(2). The court relied heavily on the decison in Foti v. NCO Financial Systems, 424 F.Supp. 2d 643 (SDNY 2006)
NCO’s records reflect that automated telephone calls were placed on the dates and times alleged, and that the content of the recordings on Plaintiff’s voicemail system accurately reflects a portion of NCO’s automated interactive “script.” Such portions of the script went as follows:
This message is for - Thomas Inman. Please call us back today at toll-free, 1-800-350-2457. When calling back, the Reference ID is EL9170. Once again, this number is toll-free 1-800-350-2457. Thank you. Goodbye.
or
This message is for - Thomas Inman. Please call us back today at toll-free, 1-800-350-2457. When calling back, the Reference ID is EL9170. Once again, the number is toll-free 1-800-350-2457. Thank you. Goodbye.
There were about 20 such calls over a one-month period.
http://www.paed.uscourts.gov/documents/opinions/09D1288P.pdf
Defendant debt collector's automated messages left on Plaintiff's answering machine consituted "communications" under the Fair Debt Collection Pracctices Act, 15 USC sec. 1692a(2). The court relied heavily on the decison in Foti v. NCO Financial Systems, 424 F.Supp. 2d 643 (SDNY 2006)
NCO’s records reflect that automated telephone calls were placed on the dates and times alleged, and that the content of the recordings on Plaintiff’s voicemail system accurately reflects a portion of NCO’s automated interactive “script.” Such portions of the script went as follows:
This message is for - Thomas Inman. Please call us back today at toll-free, 1-800-350-2457. When calling back, the Reference ID is EL9170. Once again, this number is toll-free 1-800-350-2457. Thank you. Goodbye.
or
This message is for - Thomas Inman. Please call us back today at toll-free, 1-800-350-2457. When calling back, the Reference ID is EL9170. Once again, the number is toll-free 1-800-350-2457. Thank you. Goodbye.
There were about 20 such calls over a one-month period.
IFP - CCP Rules - SSN not required
In Re: Order Amending Rule 240 of the Pennsylvania Rules of Civil Procedure,
No. 515 Civil Procedural Rules Docket
Opinion By: per curiam, Posted By: W.D. Prothonotary
Date Rendered: 10/22/2009
Date Posted: 10/22/2009
Opinion Type: Rules
515civ.pdf
Date Rendered: 10/22/2009
Date Posted: 10/22/2009
Opinion Type: Rules
515civ.attach.pdf
Explanatory Comment - There has been an increase in the concern about the use of social security numbers in court paper records. Consequently, the Supreme Court of Pennsylvania has amended Rule 240(h) governing the form for the petition to proceed in forma pauperis by deleting the requirement for a petitioner to supply his or her social security number.
No. 515 Civil Procedural Rules Docket
Opinion By: per curiam, Posted By: W.D. Prothonotary
Date Rendered: 10/22/2009
Date Posted: 10/22/2009
Opinion Type: Rules
515civ.pdf
Date Rendered: 10/22/2009
Date Posted: 10/22/2009
Opinion Type: Rules
515civ.attach.pdf
Explanatory Comment - There has been an increase in the concern about the use of social security numbers in court paper records. Consequently, the Supreme Court of Pennsylvania has amended Rule 240(h) governing the form for the petition to proceed in forma pauperis by deleting the requirement for a petitioner to supply his or her social security number.
IFP - MDJ Rule 206 - SSN not required
In RE: Order Amending Rule 206 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges, No. 262 Magisterial Docket
Opinion By: per curiam
Posted By: W.D. Prothonotary
Opinion Type: Rules 262mag.pdf
Opinion Type: Rules 262mag.rpt.pdf
Opinion Type: Rules 262mag.attach.pdf
FINAL REPORT
Opinion By: per curiam
Posted By: W.D. Prothonotary
Opinion Type: Rules 262mag.pdf
Opinion Type: Rules 262mag.rpt.pdf
Opinion Type: Rules 262mag.attach.pdf
FINAL REPORT
Amendment to Rule 206 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges
REMOVAL OF SOCIAL SECURITY NUMBER IN IFP PETITION
On October 22, 2009, effective immediately, upon recommendation of the Minor Court Rules Committee, the Supreme Court of Pennsylvania approved an amendment to Rule 206 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges.
I. Background and Discussion
In the spring of 2007, the Court Administrator of Pennsylvania convened a working group to formulate a statewide public access policy for official case records of the magisterial district courts. The working group was asked to specifically address release of sensitive information, such as social security numbers (“SSNs”). Staff Counsel for the Minor Court Rules Committee (“Committee”) was a member of the working group. The working group concluded that SSNs should not be included on forms filed with magisterial district courts if that information is unnecessary for the court’s adjudication of the case or collection of the information is not otherwise required by law.
In light of that conclusion, the working group asked Staff Counsel if the Committee would consider removing the SSN requirement from the in forma pauperis (“IFP") petition described in Rule 206E(vi).
The Committee members discussed the working group’s request and agreed that the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges should be consistent with any procedures adopted by the Court governing access to information in the official case records of the magisterial district courts. In addition, the Committee unanimously concurred that there was no judicial rationale for requesting SSNs. Therefore, the Committee recommended removal of the SSN requirement from the IFP petition.
II. Approved Rule Changes
Accordingly, the Committee proposed the deletion of the line in the IFP petition that requires entry of a petitioner’s SSN. The Committee believes this amendment to be of a perfunctory nature. Therefore, the Committee respectfully recommended that the Court adopt this recommendation in accordance with Pa.R.J.A. No. 103(a)(3), without prior publication for public comment.
Thursday, October 22, 2009
custody - fast-track appeals - concise statement of errors - PRAP 905, 1925
In re K.T.E.L. - Superior Court - October 21, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/S53016_09.pdf
In this case, we address an issue of first impression: the disposition of an appeal in which an appellant in a case involving termination of parental rights fails to comply with Pennsylvania Rules of Appellate Procedure 905(a)(2) and 1925(a)(2), both adopted January 13, 2009.
We hold that henceforth, in all children’s fast track cases, the failure to file a concise statement of errors complained of on appeal with the notice of appeal will result in a defective notice of appeal, to be disposed of on a case by case basis.
The amendments to Rule 905 and 1925, adopted January 13, 2009....included new sub-sections applicable only to children’s fast track cases. Rule 905(a)(2) provides in pertinent part: “If the appeal is a children’s fast track appeal, the concise statement of errors complained of on appeal as described in Rule 1925(a)(2) shall be filed with the notice of appeal and served in accordance with Rule 1925(b)(1).” Pa.R.A.P. 905(a)(2) (emphasis added).
Rule 1925(a)(2)(i) states: “The concise statement of errors complained of on appeal shall be filed and served with the notice of appeal as required by Rule 905. See Pa.R.A.P. 905(a)(2).” Pa.R.A.P. 1925(a)(2)(i) (emphasis added).
While both rules require the contemporaneous filing of a notice of appeal and concise statement, there are no provisions defining the effect on the appellant’s appeal of the failure to comply. We find however, that rule 905(a)(2) is procedural, not jurisdictional; therefore, we are not divested of our jurisdiction by non-compliance. Instead, we find that failure to comply with Rule 905(a)(2) will result in a defective notice of appeal.
“The extreme action of dismissal should be imposed by an appellate court sparingly, and clearly would be inappropriate when there has been substantial compliance with the rules and when the party [moving for quashal of the appeal] has suffered no prejudice.” Stout v. Universal Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980).
Accordingly, as there is no per se rule requiring quashal or dismissal of a defective notice of appeal, we hold that in the instant case and henceforth, the failure of an appellant in a children’s fast track case to file contemporaneously a concise statement with the notice of appeal pursuant to rules 905(a)(2) and 1925(a)(2), will result in a defective notice of appeal. The disposition of the defective notice of appeal will then be decided on a case by case basis under the guidelines set forth in Stout.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/S53016_09.pdf
In this case, we address an issue of first impression: the disposition of an appeal in which an appellant in a case involving termination of parental rights fails to comply with Pennsylvania Rules of Appellate Procedure 905(a)(2) and 1925(a)(2), both adopted January 13, 2009.
We hold that henceforth, in all children’s fast track cases, the failure to file a concise statement of errors complained of on appeal with the notice of appeal will result in a defective notice of appeal, to be disposed of on a case by case basis.
The amendments to Rule 905 and 1925, adopted January 13, 2009....included new sub-sections applicable only to children’s fast track cases. Rule 905(a)(2) provides in pertinent part: “If the appeal is a children’s fast track appeal, the concise statement of errors complained of on appeal as described in Rule 1925(a)(2) shall be filed with the notice of appeal and served in accordance with Rule 1925(b)(1).” Pa.R.A.P. 905(a)(2) (emphasis added).
Rule 1925(a)(2)(i) states: “The concise statement of errors complained of on appeal shall be filed and served with the notice of appeal as required by Rule 905. See Pa.R.A.P. 905(a)(2).” Pa.R.A.P. 1925(a)(2)(i) (emphasis added).
While both rules require the contemporaneous filing of a notice of appeal and concise statement, there are no provisions defining the effect on the appellant’s appeal of the failure to comply. We find however, that rule 905(a)(2) is procedural, not jurisdictional; therefore, we are not divested of our jurisdiction by non-compliance. Instead, we find that failure to comply with Rule 905(a)(2) will result in a defective notice of appeal.
“The extreme action of dismissal should be imposed by an appellate court sparingly, and clearly would be inappropriate when there has been substantial compliance with the rules and when the party [moving for quashal of the appeal] has suffered no prejudice.” Stout v. Universal Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980).
Accordingly, as there is no per se rule requiring quashal or dismissal of a defective notice of appeal, we hold that in the instant case and henceforth, the failure of an appellant in a children’s fast track case to file contemporaneously a concise statement with the notice of appeal pursuant to rules 905(a)(2) and 1925(a)(2), will result in a defective notice of appeal. The disposition of the defective notice of appeal will then be decided on a case by case basis under the guidelines set forth in Stout.
Wednesday, October 21, 2009
criminal records - expungement - divulging of expunged record not a due process violation
Nuñez v. Pachman - 3d Circuit - August 26, 2009
http://www.ca3.uscourts.gov/opinarch/083314p.pdf
Disclosure of an expunged criminal record held not to violate the federal due process clause.
The fact that a New Jersey statute law mandates removal of an expunged record from all public documents does not create a reasonable expectation of privacy in this information.
Because expungement is available only after a minimum statutory period of ten years has elapsed, and because references to a defendant’s criminal conduct may persist in public news sources after expungement, the information expunged is never truly “private.”
Even if the state recognizes a privacy interest in an expunged criminal record, the court decided that "such an interest is not cognizable under the federal constitution," whose protection of privacy is "significantly narrow that the right of privacy protected by state tort law." (emphasis in original) The state statute does not "harden the right of privacy into a constitutional right."
Query: Does Pennsylvania constitution offer greater protection of privacy that New Jersey's? See, Seth Kreimer, "The Right to Privacy in the Pennsylvania Constitution," in The Pennsylvania Constitution: A Treatise on Rights and Liberties at 785-819.
http://www.ca3.uscourts.gov/opinarch/083314p.pdf
Disclosure of an expunged criminal record held not to violate the federal due process clause.
The fact that a New Jersey statute law mandates removal of an expunged record from all public documents does not create a reasonable expectation of privacy in this information.
Because expungement is available only after a minimum statutory period of ten years has elapsed, and because references to a defendant’s criminal conduct may persist in public news sources after expungement, the information expunged is never truly “private.”
Even if the state recognizes a privacy interest in an expunged criminal record, the court decided that "such an interest is not cognizable under the federal constitution," whose protection of privacy is "significantly narrow that the right of privacy protected by state tort law." (emphasis in original) The state statute does not "harden the right of privacy into a constitutional right."
Query: Does Pennsylvania constitution offer greater protection of privacy that New Jersey's? See, Seth Kreimer, "The Right to Privacy in the Pennsylvania Constitution," in The Pennsylvania Constitution: A Treatise on Rights and Liberties at 785-819.
UC - subpoena duces tecum - enforcement, cost of producing records
Hahn v. UCBR - Cmwlth. Court - October 21, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2262CD08_10-21-09.pdf
Subpoena duces tecum
The UCBR did not err in failing to enforce a subpoena duces tecum against the employer, where the phone company and not the employer was in possession of the relevant records.
Cost of producing records - 43 P.S. 826
The employer raised the excessive cost of producing records as an issue in the case. The decision did not involve this issue, but the court noted that "neither party in this case cites to or relies upon...43 P.S. § 826 [sec. 506 of the UC Law] to argue that the fee to be paid to [phone company] for production of the phone records should have been set by the Board and paid out of the Board’s Administration Fund.
Section 506 states, in relevant part: The department and the board shall have power to issue summons or subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this act. . . . Witnesses subpoenaed pursuant to this act shall be allowed reasonable fees and expenses at a rate fixed by the department. Such fees and all expenses of proceedings involving disputed claims shall be deemed a part of the expense of administering this act and shall be paid from the Administration Fund. 43 P.S. § 826 (emphasis added). As neither party has argued that the Board should have fixed a fee for the production of the records, and paid such fee, we shall not address the issue sua sponte.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2262CD08_10-21-09.pdf
Subpoena duces tecum
The UCBR did not err in failing to enforce a subpoena duces tecum against the employer, where the phone company and not the employer was in possession of the relevant records.
Cost of producing records - 43 P.S. 826
The employer raised the excessive cost of producing records as an issue in the case. The decision did not involve this issue, but the court noted that "neither party in this case cites to or relies upon...43 P.S. § 826 [sec. 506 of the UC Law] to argue that the fee to be paid to [phone company] for production of the phone records should have been set by the Board and paid out of the Board’s Administration Fund.
Section 506 states, in relevant part: The department and the board shall have power to issue summons or subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this act. . . . Witnesses subpoenaed pursuant to this act shall be allowed reasonable fees and expenses at a rate fixed by the department. Such fees and all expenses of proceedings involving disputed claims shall be deemed a part of the expense of administering this act and shall be paid from the Administration Fund. 43 P.S. § 826 (emphasis added). As neither party has argued that the Board should have fixed a fee for the production of the records, and paid such fee, we shall not address the issue sua sponte.
Tuesday, October 20, 2009
mootness - case or controversy
Harris, et al. v. Rendell, et al. - Cmwlth. Court -
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/504MD08_10-19-09.pdf
This case has to do with the parole board, but there is interesting language in it about mootness, case/controversy. Interesting and important in itself. Some of it may also have relevance to the standing question in foreclosure cases.
_______________________
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 County v. Venango County Court of Common Pleas, 586 Pa. 317, 325, 893 A.2d 1275, 1279 (2006) [quoting Pap's A.M. v. City of Erie, 571 Pa. 375, 389, 812 A.2d 591, 599-600 (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 Philadelphia v. SEPTA, 937 A.2d 1176, 1179 (Pa. Cmwlth. 2007).
As the Pennsylvania Supreme Court explained: The cases presenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. 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. Pap's A.M., 571 Pa. at 389, 812 A.2d at 599-600 (2002) [quoting In re Cain, 527 Pa. 260, 263, 590 A.2d 291, 292 (1991)].
It is well settled that the courts "do not render decisions in the abstract or offer purely advisory opinions." Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 203, 888 A.2d 655, 659 (2005). Judicial intervention "is appropriate only where the underlying controversy is real and concrete, rather than abstract." City of Philadelphia v. Commonwealth, 575 Pa. 542, 559, 838 A.2d 566, 577 (2003)....
Under the exceptions to the mootness doctrine, the court may consider technically moot issues "where the conduct complained of is capable of repetition yet likely to evade review, where the case involves issues important to the public interest or where a party will suffer some detriment without the court's decision." Sierra Club v. Pa. Public Utility Comm'n, 702 A.2d 1131, 1134 (Pa. Cmwlth. 1997), aff'd, 557 Pa. 11, 731 A.2d 133 (1999). It is within the court's "discretion to decide substantial questions, otherwise moot, that are capable of repetition unless settled." In re Bishop, 717 A.2d 1114, 1116 (Pa. Cmwlth. 1998).
[There are] cases in which the courts decided to review technically moot issues. See, e.g., Jersey Shore Area Sch. Dist. v. Jersey Shore Educ. Ass'n, 519 Pa. 398, 548 A.2d 1202 (1988) (the legality of teachers' strike was one of important public interest and capable of repetition yet apt to evade review); Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa. 56, 373 A.2d 748 (1977) (the trial court's issuance of preliminary injunction would escape appellate review because the effect of the injunction would terminate before review); Lutz v. Tanglwood Lakes Cmty. Ass'n, 866 A.2d 471 (Pa. Cmwlth. 2005), appeal granted in part, 583 Pa. 508, 880 A.2d 502 (2005) (the issue concerning dismissal of a nonprofit corporation's directors was of great public importance to the governance of nonprofit corporations and likely to reoccur because directors' terms would likely expire before final resolution of any legal challenge to their removal); Coady v. Pa. Bd. of Prob. & Parole, 804 A.2d 121 (Pa. Cmwlth. 2002) (the constitutionality of the 1996 amendment to the Parole Act, as applied to inmates who had been convicted prior to the amendment, was a matter of great public importance; the court noted the federal district court's earlier ruling that the amendment, as applied, violated the ex post facto clause).
[T]he great public importance exception to the mootness doctrine "is generally confined to a narrow category of cases." Bottomer v. Progressive Cas. Ins. Co., 580 Pa. 114, 120, 859 A.2d 1282, 1285 (2004). As our Supreme Court stated in Wortex Mills, Inc. v. Textile Workers Union of America, 369 Pa. 359, 370, 85 A.2d 851, 857 (1952): It is only in very rare cases where exceptional circumstances exist or where matters or questions of great public importance are involved, that this court ever decides moot questions or erects guideposts for future conduct or actions. … [The issues] will not be anticipated but will be dealt with only as they are appropriately raised upon a record before us.
A controlling factor in determining whether the moot questions may be appropriately reviewed under the great public importance exception is whether "the legislature obviously recognized the significance of [such] questions." In re Gross, 476 Pa. at 215, 382 A.2d at 123. If the statute "deals squarely with the issues," the case does not fall within the great public importance exception.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/504MD08_10-19-09.pdf
This case has to do with the parole board, but there is interesting language in it about mootness, case/controversy. Interesting and important in itself. Some of it may also have relevance to the standing question in foreclosure cases.
_______________________
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 County v. Venango County Court of Common Pleas, 586 Pa. 317, 325, 893 A.2d 1275, 1279 (2006) [quoting Pap's A.M. v. City of Erie, 571 Pa. 375, 389, 812 A.2d 591, 599-600 (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 Philadelphia v. SEPTA, 937 A.2d 1176, 1179 (Pa. Cmwlth. 2007).
As the Pennsylvania Supreme Court explained: The cases presenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. 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. Pap's A.M., 571 Pa. at 389, 812 A.2d at 599-600 (2002) [quoting In re Cain, 527 Pa. 260, 263, 590 A.2d 291, 292 (1991)].
It is well settled that the courts "do not render decisions in the abstract or offer purely advisory opinions." Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 203, 888 A.2d 655, 659 (2005). Judicial intervention "is appropriate only where the underlying controversy is real and concrete, rather than abstract." City of Philadelphia v. Commonwealth, 575 Pa. 542, 559, 838 A.2d 566, 577 (2003)....
Under the exceptions to the mootness doctrine, the court may consider technically moot issues "where the conduct complained of is capable of repetition yet likely to evade review, where the case involves issues important to the public interest or where a party will suffer some detriment without the court's decision." Sierra Club v. Pa. Public Utility Comm'n, 702 A.2d 1131, 1134 (Pa. Cmwlth. 1997), aff'd, 557 Pa. 11, 731 A.2d 133 (1999). It is within the court's "discretion to decide substantial questions, otherwise moot, that are capable of repetition unless settled." In re Bishop, 717 A.2d 1114, 1116 (Pa. Cmwlth. 1998).
[There are] cases in which the courts decided to review technically moot issues. See, e.g., Jersey Shore Area Sch. Dist. v. Jersey Shore Educ. Ass'n, 519 Pa. 398, 548 A.2d 1202 (1988) (the legality of teachers' strike was one of important public interest and capable of repetition yet apt to evade review); Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa. 56, 373 A.2d 748 (1977) (the trial court's issuance of preliminary injunction would escape appellate review because the effect of the injunction would terminate before review); Lutz v. Tanglwood Lakes Cmty. Ass'n, 866 A.2d 471 (Pa. Cmwlth. 2005), appeal granted in part, 583 Pa. 508, 880 A.2d 502 (2005) (the issue concerning dismissal of a nonprofit corporation's directors was of great public importance to the governance of nonprofit corporations and likely to reoccur because directors' terms would likely expire before final resolution of any legal challenge to their removal); Coady v. Pa. Bd. of Prob. & Parole, 804 A.2d 121 (Pa. Cmwlth. 2002) (the constitutionality of the 1996 amendment to the Parole Act, as applied to inmates who had been convicted prior to the amendment, was a matter of great public importance; the court noted the federal district court's earlier ruling that the amendment, as applied, violated the ex post facto clause).
[T]he great public importance exception to the mootness doctrine "is generally confined to a narrow category of cases." Bottomer v. Progressive Cas. Ins. Co., 580 Pa. 114, 120, 859 A.2d 1282, 1285 (2004). As our Supreme Court stated in Wortex Mills, Inc. v. Textile Workers Union of America, 369 Pa. 359, 370, 85 A.2d 851, 857 (1952): It is only in very rare cases where exceptional circumstances exist or where matters or questions of great public importance are involved, that this court ever decides moot questions or erects guideposts for future conduct or actions. … [The issues] will not be anticipated but will be dealt with only as they are appropriately raised upon a record before us.
A controlling factor in determining whether the moot questions may be appropriately reviewed under the great public importance exception is whether "the legislature obviously recognized the significance of [such] questions." In re Gross, 476 Pa. at 215, 382 A.2d at 123. If the statute "deals squarely with the issues," the case does not fall within the great public importance exception.
Monday, October 19, 2009
UC - referee duty to unrepresented claimant - sexual harassment
Murray v. UCBR - Cmwlth. Court - October 19, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/820CD09_10-19-09.pdf
This case was not reported, but it has some useful things in it, nonetheless.
Referee duty to unrepresented claimant -
When a party is unaccompanied by counsel at a hearing before the referee, the referee is charged with a heightened responsibility of supervising the presentation of evidence. Drs. Katsur & Associates v. UCBR, 509 A.2d 926 (Pa. Cmwlth. 1986). The referee must act reasonably in assisting an unrepresented party’s development of necessary facts but need not advise a party on evidentiary questions or specific points of law. Bennett. The referee must advise a claimant of his right to be represented by counsel, to offer witnesses and to cross-examine adverse witnesses. Catanese v. UCBR, 452 A.2d 929 (Pa. Cmwlth. 1982). However, it is true that a referee need not advise a claimant with respect to the conduct of the hearing at every stage. Rohrbach v. UCBR, 450 A.2d 323 (Pa. Cmwlth. 1982). Any failure to develop an adequate record must be shown to be prejudicial to the claimant; mere harmless error will not support a reversal. Snow v. UCBR, 433 A.2d 922 (Pa. Cmwlth. 1981).
In Bennett v. UCBR, 445 A.2d 258 (Pa. Cmwlth. 1982), the claimant alleged that she was not afforded a full and fair hearing as the referee failed to assist her in developing relevant testimony, inter alia, “alleged sexual harassment by patrons of which her employer was aware but did not remedy.” This Court concluded that the “very sparse record” and the “two-page hearing transcript . . . of which only less than half of a page is germane to" the issues "revealed that the referee did not ask sufficient questions to aid the claimant in establishing a necessitous and compelling cause for leaving her job. Bennett, 445 A.2d at 459. We also noted, that the referee did not inform claimant of her right to counsel or to cross-examine witnesses, and, thus, the hearing was less than “full and fair.” Thus, we concluded that the referee should have more “thoroughly and reasonably extracted testimony” on these issues. Id.
Here, however, although claimant correctly recited the law, her allegation that the referee failed to properly help her develop the record and establish facts that were supportive of her claim is unsupported by evidence of record. Moroever, the referee told claimant of her right to counsel and other rights, explained the hearing procedures, asked questions of her and attempted to elicit relevant testimony.
Sexual harassment
Sexual harassment can be a necessitous and compelling reason for separating from employment, provided the employee has taken reasonable and prudent steps to alleviate the problem. Weissman v. Unemployment Compensation Board of Review, 502 A.2d 782 (Pa. Cmwlth. 1986). Thus, a claimant must establish that she took “common sense action” such that the employer was aware of the nature of the objection. Colduvell v. Unemployment Compensation Board of Review, 408 A.2d 1207 (Pa. Cmwlth. 1979). See Homan v. Unemployment Compensation Board of Review, 527 A.2d 1109 (Pa. Cmwlth. 1987) and Collier Stone Company v. Unemployment Compensation Board of Review, 876 A.2d 481 (Pa. Cmwlth. 2005); Comitalo v. UCBR, 737 A.2d 342 (Pa. Cmwlth. 1999).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/820CD09_10-19-09.pdf
This case was not reported, but it has some useful things in it, nonetheless.
Referee duty to unrepresented claimant -
When a party is unaccompanied by counsel at a hearing before the referee, the referee is charged with a heightened responsibility of supervising the presentation of evidence. Drs. Katsur & Associates v. UCBR, 509 A.2d 926 (Pa. Cmwlth. 1986). The referee must act reasonably in assisting an unrepresented party’s development of necessary facts but need not advise a party on evidentiary questions or specific points of law. Bennett. The referee must advise a claimant of his right to be represented by counsel, to offer witnesses and to cross-examine adverse witnesses. Catanese v. UCBR, 452 A.2d 929 (Pa. Cmwlth. 1982). However, it is true that a referee need not advise a claimant with respect to the conduct of the hearing at every stage. Rohrbach v. UCBR, 450 A.2d 323 (Pa. Cmwlth. 1982). Any failure to develop an adequate record must be shown to be prejudicial to the claimant; mere harmless error will not support a reversal. Snow v. UCBR, 433 A.2d 922 (Pa. Cmwlth. 1981).
In Bennett v. UCBR, 445 A.2d 258 (Pa. Cmwlth. 1982), the claimant alleged that she was not afforded a full and fair hearing as the referee failed to assist her in developing relevant testimony, inter alia, “alleged sexual harassment by patrons of which her employer was aware but did not remedy.” This Court concluded that the “very sparse record” and the “two-page hearing transcript . . . of which only less than half of a page is germane to" the issues "revealed that the referee did not ask sufficient questions to aid the claimant in establishing a necessitous and compelling cause for leaving her job. Bennett, 445 A.2d at 459. We also noted, that the referee did not inform claimant of her right to counsel or to cross-examine witnesses, and, thus, the hearing was less than “full and fair.” Thus, we concluded that the referee should have more “thoroughly and reasonably extracted testimony” on these issues. Id.
Here, however, although claimant correctly recited the law, her allegation that the referee failed to properly help her develop the record and establish facts that were supportive of her claim is unsupported by evidence of record. Moroever, the referee told claimant of her right to counsel and other rights, explained the hearing procedures, asked questions of her and attempted to elicit relevant testimony.
Sexual harassment
Sexual harassment can be a necessitous and compelling reason for separating from employment, provided the employee has taken reasonable and prudent steps to alleviate the problem. Weissman v. Unemployment Compensation Board of Review, 502 A.2d 782 (Pa. Cmwlth. 1986). Thus, a claimant must establish that she took “common sense action” such that the employer was aware of the nature of the objection. Colduvell v. Unemployment Compensation Board of Review, 408 A.2d 1207 (Pa. Cmwlth. 1979). See Homan v. Unemployment Compensation Board of Review, 527 A.2d 1109 (Pa. Cmwlth. 1987) and Collier Stone Company v. Unemployment Compensation Board of Review, 876 A.2d 481 (Pa. Cmwlth. 2005); Comitalo v. UCBR, 737 A.2d 342 (Pa. Cmwlth. 1999).
UC - voluntary quit - length of commute
Blazowich v. UCBR - Cmwlth. Court - October 19, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/754CD09_10-19-09.pdf
Transportation inconveniences constitute a necessitous and compelling reason for voluntary termination “only where they are ‘so serious and unreasonable as to present a virtually insurmountable problem and the claimant must demonstrate that he or she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship.’” Musguire v. UCBR, 415 A.2d 708, 709 (Pa. Cmwlth. 1980) (quoting Lee v. UCBR, 401 A.2d 12, 13 (Pa. Cmwlth. 1979).
A fifty-mile one-way commute, without more, does not constitute a necessitous and compelling reason to quit. Kieley v. UCBR, 471 A.2d 1345 (Pa. Cmwlth. 1984). Furthermore, a claimant who has not tried a sixty-mile commute, even for a single day, before severing the employment relationship, has not taken reasonable steps to overcome transportation problems. Musguire. Here, Claimant would have had to travel a distance of only twenty-five miles, and Claimant did not attempt commuting to the new assignment, not even once, before refusing Employer’s offer. Thus, Claimant has failed to establish a necessitous and compelling reason for terminating employment.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/754CD09_10-19-09.pdf
Transportation inconveniences constitute a necessitous and compelling reason for voluntary termination “only where they are ‘so serious and unreasonable as to present a virtually insurmountable problem and the claimant must demonstrate that he or she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship.’” Musguire v. UCBR, 415 A.2d 708, 709 (Pa. Cmwlth. 1980) (quoting Lee v. UCBR, 401 A.2d 12, 13 (Pa. Cmwlth. 1979).
A fifty-mile one-way commute, without more, does not constitute a necessitous and compelling reason to quit. Kieley v. UCBR, 471 A.2d 1345 (Pa. Cmwlth. 1984). Furthermore, a claimant who has not tried a sixty-mile commute, even for a single day, before severing the employment relationship, has not taken reasonable steps to overcome transportation problems. Musguire. Here, Claimant would have had to travel a distance of only twenty-five miles, and Claimant did not attempt commuting to the new assignment, not even once, before refusing Employer’s offer. Thus, Claimant has failed to establish a necessitous and compelling reason for terminating employment.
UC - vol. quit - safety of claimant v. safety of others
Green Tree School v. UCBR - Cmwlth. Court - October 19, 2009 (2-1)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/7CD09_10-19-09.pdf
Majority
The court reversed the UCBR and held that Claimant’s stated safety concerns and Employer’s refusal to allow her to participate in a staffing decision gave her necessitous and compelling reasons to resign. Concluding that they did not, we reverse the Board.
Employer is a private school for children with autism and emotional disturbances, where Claimant worked for seven years as the Director of Education. She quit her job when another job position, behavior health coordinator -- which was occupied by her life partner -- was eliminated, without any consultation with the claimant.
Claimant submitted a resignation letter to the school’s board of directors that its “decision to cut the position of Behavior Coordinator for the coming year … has resulted in my resignation.” The board accepted the resignation.
The court agreed with the Employer contention that claimant’s concerns regarding the “physical and emotional safety” of the persons at the school was speculative and that claimant did not take reasonable steps to preserve her employment.
The court rejected claimant's argument that the elimination of the position made the school unsafe for the children, citing only cases about a claimant's own personal safety. "There is simply a disconnect between the harm posited by claimant and her personal safety....The test is not whether a claimant’s belief is a genuine one. Rather, the test is whether the claimant has demonstrated that the workplace environment has placed “real,” i.e., actual and extreme, pressure on the claimant....Claimant’s self-serving testimony did not demonstrate that she was unsafe or that the workplace was unsafe with the kind of objective evidence presented" in other cases.
The exclusion of the claimant from the staffing decision did not give her good cause to quit either. "Employees do not enjoy a general right to participate in management decisions, such as how many staff are needed in another department. In addition, [the school director] explained that claimant should not have been involved in this particular personnel decision precisely because of her relationship with" the employee whose position was eliminated -- her life partner.
Claimant also "failed in her duty to preserve employment." It was "not her prerogative" to make a demand to be involved in the staffing position. She quit before waiting to seehow the staffing change would affect her or the school before announcing her resignation. "Claimant simply issued an ultimatum to Employer that it yield to her views, but the ultimatum did not satisfy her duty to preserve employment."
Dissent
Without addressing the issue head-on, the dissent said that danger to the children, and just claimant, would constitute good cause, and that the claimant had established such a danger. The dissent felt that claimant notified the employer of the problem in advance of quitting and left the job only when the employer did not address the problem.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/7CD09_10-19-09.pdf
Majority
The court reversed the UCBR and held that Claimant’s stated safety concerns and Employer’s refusal to allow her to participate in a staffing decision gave her necessitous and compelling reasons to resign. Concluding that they did not, we reverse the Board.
Employer is a private school for children with autism and emotional disturbances, where Claimant worked for seven years as the Director of Education. She quit her job when another job position, behavior health coordinator -- which was occupied by her life partner -- was eliminated, without any consultation with the claimant.
Claimant submitted a resignation letter to the school’s board of directors that its “decision to cut the position of Behavior Coordinator for the coming year … has resulted in my resignation.” The board accepted the resignation.
The court agreed with the Employer contention that claimant’s concerns regarding the “physical and emotional safety” of the persons at the school was speculative and that claimant did not take reasonable steps to preserve her employment.
The court rejected claimant's argument that the elimination of the position made the school unsafe for the children, citing only cases about a claimant's own personal safety. "There is simply a disconnect between the harm posited by claimant and her personal safety....The test is not whether a claimant’s belief is a genuine one. Rather, the test is whether the claimant has demonstrated that the workplace environment has placed “real,” i.e., actual and extreme, pressure on the claimant....Claimant’s self-serving testimony did not demonstrate that she was unsafe or that the workplace was unsafe with the kind of objective evidence presented" in other cases.
The exclusion of the claimant from the staffing decision did not give her good cause to quit either. "Employees do not enjoy a general right to participate in management decisions, such as how many staff are needed in another department. In addition, [the school director] explained that claimant should not have been involved in this particular personnel decision precisely because of her relationship with" the employee whose position was eliminated -- her life partner.
Claimant also "failed in her duty to preserve employment." It was "not her prerogative" to make a demand to be involved in the staffing position. She quit before waiting to seehow the staffing change would affect her or the school before announcing her resignation. "Claimant simply issued an ultimatum to Employer that it yield to her views, but the ultimatum did not satisfy her duty to preserve employment."
Dissent
Without addressing the issue head-on, the dissent said that danger to the children, and just claimant, would constitute good cause, and that the claimant had established such a danger. The dissent felt that claimant notified the employer of the problem in advance of quitting and left the job only when the employer did not address the problem.
Thursday, October 15, 2009
tax sale - notice
Lerza-Keubler v. Monroe County Tax Claim Bureau - Cmwlth. Court - October 15, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/174CD09_10-15-09.pdf
The court set aside a tax sale because, after the post office returned the tax sale notices unclaimed, the Bureau failed to make a reasonable effort to notify the owner of the tax sale by calling the telephone number the tax claim bureau had for the deceased owner, which was the same telephone number of the executrix, who was living at the property. Such a failure can be cured by showing actual notice, but proof of that was lacking here.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/174CD09_10-15-09.pdf
The court set aside a tax sale because, after the post office returned the tax sale notices unclaimed, the Bureau failed to make a reasonable effort to notify the owner of the tax sale by calling the telephone number the tax claim bureau had for the deceased owner, which was the same telephone number of the executrix, who was living at the property. Such a failure can be cured by showing actual notice, but proof of that was lacking here.
UC - willful misconduct - prior incidents v. final incident
Philadelphia Parking Authority v. UCBR - Cmwlth. Court - October 15, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2335CD08_10-15-09.pdf
"Notwithstanding a history of job-related misconduct, an employer must still prove that the final incident of misconduct for which a claimant was purportedly terminated contained an element of willfulness; should the employer fail to establish that the final incident constituted willful conduct, the employer has also failed to prove the required causal connection between the claimant’s purported culpable behavior, and the termination. See SEPTA v. UCBR, 525 A.2d 458 (Pa. Cmwlth. 1987); Crib Diaper Service v. UCBR, 98 A.2d 490 (Pa. Super. 1953). As such, Employer’s arguments regarding Claimant’s prior alleged instances of misconduct are of no moment to the issue on appeal sub judice."
__._,_.___
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2335CD08_10-15-09.pdf
"Notwithstanding a history of job-related misconduct, an employer must still prove that the final incident of misconduct for which a claimant was purportedly terminated contained an element of willfulness; should the employer fail to establish that the final incident constituted willful conduct, the employer has also failed to prove the required causal connection between the claimant’s purported culpable behavior, and the termination. See SEPTA v. UCBR, 525 A.2d 458 (Pa. Cmwlth. 1987); Crib Diaper Service v. UCBR, 98 A.2d 490 (Pa. Super. 1953). As such, Employer’s arguments regarding Claimant’s prior alleged instances of misconduct are of no moment to the issue on appeal sub judice."
__._,_.___
Tuesday, October 06, 2009
municipal ordinances - adoption - void ab initio doctrine
Hawk v. Eldred Twp. Board of Supervisors - Cmwlth. Court - October 6, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/218CD09_10-6-09.pdf
Township zoning ordinance held to be not void ab initio, despite some defects in adoption under the Municipal Planning Code, 53 P.S. §§10101-11202, because, inter alia, the appellant did not challenge the ordinance until 4 years after its adoption. Moreover, "the public was repeatedly informed of every meeting concerning the creation and enactment of the Ordinance in a newspaper of general circulation, a reasonable forum for providing such notice which is tantamount to the notice that it would have received if the statutory requirements would have been followed. [The appellant] had every opportunity for years to attend a meeting and for months to view the Ordinance and could have challenged it from its inception. But he did not. Because he waited for four years and had not been deprived of any constitutional right, he is time barred from challenging the validity of the Ordinance."
The doctrine of void ab initio is a legal theory stating that a statute held unconstitutional is void in its entirety and is treated as if it had never existed. For a thorough discussion of the history of the void ab initio doctrine, see Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 143-45, 907 A.2d 1033, 1037-38 (2006). See also Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board, 972 A.2d 136, 142-43 (Pa. Cmwlth. 2009), where the court counseled against "an overly aggressive application of the doctrine could result in excessive uncertainty...."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/218CD09_10-6-09.pdf
Township zoning ordinance held to be not void ab initio, despite some defects in adoption under the Municipal Planning Code, 53 P.S. §§10101-11202, because, inter alia, the appellant did not challenge the ordinance until 4 years after its adoption. Moreover, "the public was repeatedly informed of every meeting concerning the creation and enactment of the Ordinance in a newspaper of general circulation, a reasonable forum for providing such notice which is tantamount to the notice that it would have received if the statutory requirements would have been followed. [The appellant] had every opportunity for years to attend a meeting and for months to view the Ordinance and could have challenged it from its inception. But he did not. Because he waited for four years and had not been deprived of any constitutional right, he is time barred from challenging the validity of the Ordinance."
The doctrine of void ab initio is a legal theory stating that a statute held unconstitutional is void in its entirety and is treated as if it had never existed. For a thorough discussion of the history of the void ab initio doctrine, see Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 143-45, 907 A.2d 1033, 1037-38 (2006). See also Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board, 972 A.2d 136, 142-43 (Pa. Cmwlth. 2009), where the court counseled against "an overly aggressive application of the doctrine could result in excessive uncertainty...."
handicapped - negligent placement of wheelchair ramp on bus - sovereign immunity
Mannella v. Port Authority of Allegheny County - Cmwlth. Court - October 6, 2009 (2-1 decision)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/5CD09_10-6-09.pdf
The court held that a bus driver’s alleged negligent placement of a bus wheelchair ramp does not fall within the vehicle exception to sovereign immunity under Section 8522(b)(1) of the Judicial Code, 42 Pa. C.S. §8522(b)(1), because it was undisputed that neither the bus nor the wheelchair ramp was in operation at the time of the accident.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/5CD09_10-6-09.pdf
The court held that a bus driver’s alleged negligent placement of a bus wheelchair ramp does not fall within the vehicle exception to sovereign immunity under Section 8522(b)(1) of the Judicial Code, 42 Pa. C.S. §8522(b)(1), because it was undisputed that neither the bus nor the wheelchair ramp was in operation at the time of the accident.
Monday, October 05, 2009
insurance - rates - Consumer Protection Law - exhaustion of remedies under insurance statutes not required
White v. Conestoga Title Insurance Company - Superior Court - October 2, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/S24030_09.pdf
Plaintiff need not exhaust admininistrative remedies under the Title Insurance Companies Act (TICA), 40 P.S. sec. 910-1 et seq. or the Unfair Insurance Practices Act (UIPA), 40 P.S. 1171.1 et seq., , before bringing an action against an insurance company under the Consumer Protection Law, 73 P.S. sec. 201-1 et seq., based on a claim that the company systematically failed to give plaintiff (and the class) the discounted insurance rates for refinancing transactions, as mandated by the approved rate structure, and thus "engaged in deceptive business practices and pervasively overcharged poilicy holders...by charging the highest approved rate, regardless of consumers' qualification for a discounted rate."
The Court relied on its decision in In Pekular v. Eich, 513 A.2d 427 (Pa. Super. 1986), appeal denied, 516 Pa. 635, 533 A.2d 93 (1987), where it held that the UIPA was not an exclusive administrative remedy, even though the alleged actions may fall within its definitional language. The Court ruled that a plaintiff, when not directly or indirectly claiming a violation of the UIPA, could bring a private action under the CPL for statutorily defined wrongs, because “the limited penalties of the [UIPA] do not represent the sole and exclusive deterrent to alleged unfair or deceptive acts of insurers and their agents.” The Court noted that the Pekular decision has been followed by subsequent panels in Wright v. North American Life Assurance Company, 539 A.2d 434 (Pa. Super. 1988) and Hardy v. Pennock Insurance Agency, Inc., 529 A.2d 471 (Pa. Super. 1987).
The Court said that it was "incongruous" for the insurance company "to suggest that the Legislature intended the TICA to control and be the exclusive administrative remedy for claims of unfair and deceptive insurance practices that only tangentially relate to insurance rates, " and that neither the UIPA nor the TICA provided a proper remedy for the wrongs the plaintiff had alleged here. It characterized the defendant's argument as an "attempt to sidestep the consumer protection laws truly at issue here..."
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/S24030_09.pdf
Plaintiff need not exhaust admininistrative remedies under the Title Insurance Companies Act (TICA), 40 P.S. sec. 910-1 et seq. or the Unfair Insurance Practices Act (UIPA), 40 P.S. 1171.1 et seq., , before bringing an action against an insurance company under the Consumer Protection Law, 73 P.S. sec. 201-1 et seq., based on a claim that the company systematically failed to give plaintiff (and the class) the discounted insurance rates for refinancing transactions, as mandated by the approved rate structure, and thus "engaged in deceptive business practices and pervasively overcharged poilicy holders...by charging the highest approved rate, regardless of consumers' qualification for a discounted rate."
The Court relied on its decision in In Pekular v. Eich, 513 A.2d 427 (Pa. Super. 1986), appeal denied, 516 Pa. 635, 533 A.2d 93 (1987), where it held that the UIPA was not an exclusive administrative remedy, even though the alleged actions may fall within its definitional language. The Court ruled that a plaintiff, when not directly or indirectly claiming a violation of the UIPA, could bring a private action under the CPL for statutorily defined wrongs, because “the limited penalties of the [UIPA] do not represent the sole and exclusive deterrent to alleged unfair or deceptive acts of insurers and their agents.” The Court noted that the Pekular decision has been followed by subsequent panels in Wright v. North American Life Assurance Company, 539 A.2d 434 (Pa. Super. 1988) and Hardy v. Pennock Insurance Agency, Inc., 529 A.2d 471 (Pa. Super. 1987).
The Court said that it was "incongruous" for the insurance company "to suggest that the Legislature intended the TICA to control and be the exclusive administrative remedy for claims of unfair and deceptive insurance practices that only tangentially relate to insurance rates, " and that neither the UIPA nor the TICA provided a proper remedy for the wrongs the plaintiff had alleged here. It characterized the defendant's argument as an "attempt to sidestep the consumer protection laws truly at issue here..."
Tuesday, September 29, 2009
UC - EUC - financial eligibility - wages - allocation - earned v. paid
McKenna v. UCBR - Cmwlth. Court - September 29, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/797CD09_9-29-09.pdf
The court held that the claimant did not satisfy the requirement of state and federal law -- 26 U.S.C. §3304 Note, and 43 P.S. §813 -- that his base-year earnings be equal to or greater than 1.5 times his high-quarter earnings.
Claimant's high quarter earnings included some that he earned in the previous quarter. They also included a bonus payment. Had these not been included in his high quarter, he would have been eligible for EUC benefits.
The court rejected his argument that these wages be allocated to the quarter in which they were earned rather than paid.
"This Court is unable to agree with Claimant’s desired allocation of his wages. The Act provides that eligibility for EUC benefits must be determined by state law which implements Section 202(a)(5) of the Federal-State Extended Unemployment Compensation Act of 1970. That section of the Law is Section 403-A which states a claimant must have wages equal to or greater than one and one–half times the highest quarterly wage. Section 4(x) of the Law, 43 P.S. §753(x), defines “wages” as “remuneration paid.”
In Pollard v. Unemployment Compensation Board of Review, 454 A.2d 1166 (Pa. Cmwlth. 1983), this Court explained when wages are considered paid. The Board ruled that William J. Pollard (Pollard) was ineligible for benefits because his wages during the base year were at least $439.00 less than the qualifying amount. Pollard reported that he received $889.53 in additional wages which were not received until after the base year but were attributed to work performed in the fourth quarter of the base year. Pollard argued that the $889.53 should be allocated to the fourth quarter when it was earned. This Court did not agree on the basis that wages must be included in the quarter in which the employee received them not when they were earned. Pollard, 454 A.2d at 1167.
Here, even though Claimant may have earned the $3,200 in the third quarter, it was not paid to him until the fourth quarter. Consequently, this amount must be allocated to fourth quarter wages. Congress has set forth the framework under which EUC benefits are administered and has given states some authority with respect to eligibility. Our General Assembly established the one and one-half times the highest quarter for total wages and has defined “wages.” This Court has determined that wages count when they are paid not when they are earned. The Board did not err."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/797CD09_9-29-09.pdf
The court held that the claimant did not satisfy the requirement of state and federal law -- 26 U.S.C. §3304 Note, and 43 P.S. §813 -- that his base-year earnings be equal to or greater than 1.5 times his high-quarter earnings.
Claimant's high quarter earnings included some that he earned in the previous quarter. They also included a bonus payment. Had these not been included in his high quarter, he would have been eligible for EUC benefits.
The court rejected his argument that these wages be allocated to the quarter in which they were earned rather than paid.
"This Court is unable to agree with Claimant’s desired allocation of his wages. The Act provides that eligibility for EUC benefits must be determined by state law which implements Section 202(a)(5) of the Federal-State Extended Unemployment Compensation Act of 1970. That section of the Law is Section 403-A which states a claimant must have wages equal to or greater than one and one–half times the highest quarterly wage. Section 4(x) of the Law, 43 P.S. §753(x), defines “wages” as “remuneration paid.”
In Pollard v. Unemployment Compensation Board of Review, 454 A.2d 1166 (Pa. Cmwlth. 1983), this Court explained when wages are considered paid. The Board ruled that William J. Pollard (Pollard) was ineligible for benefits because his wages during the base year were at least $439.00 less than the qualifying amount. Pollard reported that he received $889.53 in additional wages which were not received until after the base year but were attributed to work performed in the fourth quarter of the base year. Pollard argued that the $889.53 should be allocated to the fourth quarter when it was earned. This Court did not agree on the basis that wages must be included in the quarter in which the employee received them not when they were earned. Pollard, 454 A.2d at 1167.
Here, even though Claimant may have earned the $3,200 in the third quarter, it was not paid to him until the fourth quarter. Consequently, this amount must be allocated to fourth quarter wages. Congress has set forth the framework under which EUC benefits are administered and has given states some authority with respect to eligibility. Our General Assembly established the one and one-half times the highest quarter for total wages and has defined “wages.” This Court has determined that wages count when they are paid not when they are earned. The Board did not err."
admin. law - findings - sufficiency - conclusions follow from facts
Pennsylvania Bankers Assn. v. Dept. of Banking - September 28, 2009 - Cmwlth. Court
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/42MD05_9-28-09.pdf
“A reviewing court has the discretion to determine whether the findings that accompany an administrative agency adjudication are sufficient” and the “findings need only be enough to enable the Court to determine the questions and ensure that the conclusions follow from the facts.” Krebs Chrysler-Plymouth, Inc. v. State Bd. of Vehicle Mfrs., Dealers & Salespersons, 655 A.2d 190, 193 (Pa. Cmwlth. 1995).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/42MD05_9-28-09.pdf
“A reviewing court has the discretion to determine whether the findings that accompany an administrative agency adjudication are sufficient” and the “findings need only be enough to enable the Court to determine the questions and ensure that the conclusions follow from the facts.” Krebs Chrysler-Plymouth, Inc. v. State Bd. of Vehicle Mfrs., Dealers & Salespersons, 655 A.2d 190, 193 (Pa. Cmwlth. 1995).
Saturday, September 19, 2009
drivers license - seizure disorder - conclusive v. rebuttable presumption
Peachey v. PennDOT - Cmwlth. Court - August 13, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2251CD08_8-13-09.pdf
Following DOT v. Clayton, 684 A.2d 1060 (Pa. 1996), the court rejected the irrebutable presumption created by 75 Pa. C.S. 1519(c) and 67 Pa. Code 83.4 that a person who has had a seizure is not competent to drive until s/he has been free from seizures for a least 6 months.
In this case, a doctor wrote and testified that the driver had not been diagnosed with episodes of loss of consciousness that would interfere with the safe operation of a car, and that he did not think it was appropriate to apply the 6-month rule to this particular driver.
As the court had done in Clayton, the court here rejected DOT's arguments that driving in a right and not a privilege and rejected the irrebuttable presumption created by the regulation, noting that procedural due process required a "meaningful hearing" which included consideration of all evidence essential to a decision about a licensee's ability to drive safely. " '[S]ince the competency to drive is the paramount factor behind the instant regulations, any hearing which eliminates consideration of that very factor is violative of procedural due process.' "
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2251CD08_8-13-09.pdf
Following DOT v. Clayton, 684 A.2d 1060 (Pa. 1996), the court rejected the irrebutable presumption created by 75 Pa. C.S. 1519(c) and 67 Pa. Code 83.4 that a person who has had a seizure is not competent to drive until s/he has been free from seizures for a least 6 months.
In this case, a doctor wrote and testified that the driver had not been diagnosed with episodes of loss of consciousness that would interfere with the safe operation of a car, and that he did not think it was appropriate to apply the 6-month rule to this particular driver.
As the court had done in Clayton, the court here rejected DOT's arguments that driving in a right and not a privilege and rejected the irrebuttable presumption created by the regulation, noting that procedural due process required a "meaningful hearing" which included consideration of all evidence essential to a decision about a licensee's ability to drive safely. " '[S]ince the competency to drive is the paramount factor behind the instant regulations, any hearing which eliminates consideration of that very factor is violative of procedural due process.' "
Friday, September 18, 2009
child abuse - expungement - credibility - burden/standard of proof
Dauphin Co. CYS v. DPW - September 18, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/184CD09_9-18-09.pdf
The court affirmed the DPW order directing expungement of an indicated report of abuse. The case involved the alleged sexual abuse of a 16 year-old female student by her male driver education teacher. The case was decided (both by the ALJ and the Secretary, on appeal) based on the transcript in the related criminal case, in which the alleged abuser was found to be not guilty.
Credibility
The ALJ found the alleged victim to be credible. The DPW Secretary reversed that finding. The court rejected CYS's argument on this issue, noting the the "Supreme Court has held that the Secretary of Public Welfare or her designee is the ultimate fact finder in expungement proceedings, with the authority to make credibility determinations. C.K. v. DPW, 869 A.2d 48, 57 n.9 (Pa. Cmwlth. 2005) (citing R. v. DPW, 535 Pa. 440, 446, 636 A.2d 142, 154 (1994)). Accordingly, the County’s argument that the Secretary lacked authority to reverse the ALJ’s credibility determinations lacks merit. Further, the parties agreed to have the Bureau decide J.F.’s appeal based exclusively on the transcript of the related criminal trial. The remand hearing requested by the County would give it the proverbial second bite at the apple."
Burden/Standard of proof
The court also affirmed the finding that CYS failed to meet its burden of proof, noting that "the numerous inconsistencies in [alleged victim's] testimony and the evidence presented by [the alleged abuser] support the Secretary’s conclusion that [the alleged victim's] testimony was not credible. In an expungement case, the County bears the burden of proving that the actions of the perpetrator constitute child abuse within the meaning of the statute. C.F. v. DPW, 804 A.2d 755, 757 (Pa. Cmwlth. 2002).
"For the County to succeed, it was required to present “evidence which so preponderates in favor of a conclusion that it outweighs, in the mind of the factfinder, any inconsistent evidence and reasonable inferences drawn therefrom.” C.K., 869 A.2d at 52 n.6." The court noted that the alleged victim's testimony at the preliminary hearing and trial was "laced with inconsistencies involving, inter alia, the identity of the perpetrator, the location and timing of the alleged assault and whether her attacker ejaculated."
"In sum, the Secretary’s conclusion that [the alleged victim's] testimony lacked credibility supported her conclusion that the County failed to meet its burden of proof."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/184CD09_9-18-09.pdf
The court affirmed the DPW order directing expungement of an indicated report of abuse. The case involved the alleged sexual abuse of a 16 year-old female student by her male driver education teacher. The case was decided (both by the ALJ and the Secretary, on appeal) based on the transcript in the related criminal case, in which the alleged abuser was found to be not guilty.
Credibility
The ALJ found the alleged victim to be credible. The DPW Secretary reversed that finding. The court rejected CYS's argument on this issue, noting the the "Supreme Court has held that the Secretary of Public Welfare or her designee is the ultimate fact finder in expungement proceedings, with the authority to make credibility determinations. C.K. v. DPW, 869 A.2d 48, 57 n.9 (Pa. Cmwlth. 2005) (citing R. v. DPW, 535 Pa. 440, 446, 636 A.2d 142, 154 (1994)). Accordingly, the County’s argument that the Secretary lacked authority to reverse the ALJ’s credibility determinations lacks merit. Further, the parties agreed to have the Bureau decide J.F.’s appeal based exclusively on the transcript of the related criminal trial. The remand hearing requested by the County would give it the proverbial second bite at the apple."
Burden/Standard of proof
The court also affirmed the finding that CYS failed to meet its burden of proof, noting that "the numerous inconsistencies in [alleged victim's] testimony and the evidence presented by [the alleged abuser] support the Secretary’s conclusion that [the alleged victim's] testimony was not credible. In an expungement case, the County bears the burden of proving that the actions of the perpetrator constitute child abuse within the meaning of the statute. C.F. v. DPW, 804 A.2d 755, 757 (Pa. Cmwlth. 2002).
"For the County to succeed, it was required to present “evidence which so preponderates in favor of a conclusion that it outweighs, in the mind of the factfinder, any inconsistent evidence and reasonable inferences drawn therefrom.” C.K., 869 A.2d at 52 n.6." The court noted that the alleged victim's testimony at the preliminary hearing and trial was "laced with inconsistencies involving, inter alia, the identity of the perpetrator, the location and timing of the alleged assault and whether her attacker ejaculated."
"In sum, the Secretary’s conclusion that [the alleged victim's] testimony lacked credibility supported her conclusion that the County failed to meet its burden of proof."
Thursday, September 17, 2009
MR waiver services - proof of MR before age 21 - post-21 evidence
Heraty v. DPW - Cmwlth. Court - September 16, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/326CD09_9-16-09.pdf
The court remanded this case, in which the Petitioner requested mental retardation (MR) waiver-funded services. Petitioner is a 53 year old woman who has been registered with and receiving services from the county MR office for over 20 years. She sought additional funding, known as waiver funding due to the alleged severity of her mental retardation1 because her elderly mother, with whom she lives, will be unable to provide for her long-term care. Petitioner suffers from autism, is non-verbal and deaf, can use only rudimentary sign language and, aside from simple matters such as dressing and feeding herself, is completely dependent upon her mother for her care.
In order to qualify for the waiver services, Petitioner had to show that she was mentally retarded before her 22nd birthday, 55 Pa. Code §6210.63(3), which requires that "It has been certified that documentation to substantiate that the applicant’s or recipient’s conditions were manifest before the applicant’s or recipient’s 22nd birthday.
The ALJ rejected Petitioners application based solely on an evaluation in 1976 when she was 21, which showed that she had a partial IQ score of 98, making her not mentally retarded under the standards contained in 55 Pa. Code §4210.101a, a policy statement that lists IQ as one of various factors to consider when making a diagnosis of mental retardation.
By contrast, a 2008 psychological evaluation showed that she could not be adequately assessed due to her disabilities and, instead used adaptive functioning tests that could be substituted for IQ tests. On these tests, Petitioner scored at a one year, nine month level for communication, a six year, six month level for daily living, and a one year, nine month level for socialization. According to these tests, her composite age equivalent is three years, four months, which supports a classification of severe mental retardation, and that her disabilities have been present since childhood. The clinician’s report also stated that Petitioner’s developmental delay was present before 22 years of age.
Based on its opinion in Lycoming-Clinton County MH/MR Program v. DPW, 884 A.2d 382 (Pa. Cmwlth. 2005), the court held that it was error for the ALJ to rely solely on the 1976 IQ test, noting that "55 Pa. Code §4210.101(a) states that while an IQ score can be used, it is not always a reliable indicator of mental retardation, and other factors must also be considered where it does not accurately reflect the person’s real-life functioning abilities. Lycoming-Clinton County, 884 A.2d at 384-85...." [T]o rely solely on a full scale IQ score of 70 or below to diagnose MR [mental retardation] would be inconsistent with the statutory definition of MR....Notably, the statutory definition of MR does not require a base IQ score to diagnose an individual as mentally retarded and, in fact, does not mention IQ.... To determine if Petitioner is eligible for mental retardation waiver funded services, it is necessary for DPW to consider whether she is impaired in her maturation, learning and social adjustment, not to take an IQ score, let alone a partial IQ score, and automatically categorize her based upon that score."
All that the relevant regulation, 55 Pa. Code §6210.63(3), "requires is that 'documentation' is presented that “substantiates” that Petitioner’s mental retardation was manifest” before her 22nd birthday, not that the evaluation that resulted in the documentation occurred before her 22nd birthday."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/326CD09_9-16-09.pdf
The court remanded this case, in which the Petitioner requested mental retardation (MR) waiver-funded services. Petitioner is a 53 year old woman who has been registered with and receiving services from the county MR office for over 20 years. She sought additional funding, known as waiver funding due to the alleged severity of her mental retardation1 because her elderly mother, with whom she lives, will be unable to provide for her long-term care. Petitioner suffers from autism, is non-verbal and deaf, can use only rudimentary sign language and, aside from simple matters such as dressing and feeding herself, is completely dependent upon her mother for her care.
In order to qualify for the waiver services, Petitioner had to show that she was mentally retarded before her 22nd birthday, 55 Pa. Code §6210.63(3), which requires that "It has been certified that documentation to substantiate that the applicant’s or recipient’s conditions were manifest before the applicant’s or recipient’s 22nd birthday.
The ALJ rejected Petitioners application based solely on an evaluation in 1976 when she was 21, which showed that she had a partial IQ score of 98, making her not mentally retarded under the standards contained in 55 Pa. Code §4210.101a, a policy statement that lists IQ as one of various factors to consider when making a diagnosis of mental retardation.
By contrast, a 2008 psychological evaluation showed that she could not be adequately assessed due to her disabilities and, instead used adaptive functioning tests that could be substituted for IQ tests. On these tests, Petitioner scored at a one year, nine month level for communication, a six year, six month level for daily living, and a one year, nine month level for socialization. According to these tests, her composite age equivalent is three years, four months, which supports a classification of severe mental retardation, and that her disabilities have been present since childhood. The clinician’s report also stated that Petitioner’s developmental delay was present before 22 years of age.
Based on its opinion in Lycoming-Clinton County MH/MR Program v. DPW, 884 A.2d 382 (Pa. Cmwlth. 2005), the court held that it was error for the ALJ to rely solely on the 1976 IQ test, noting that "55 Pa. Code §4210.101(a) states that while an IQ score can be used, it is not always a reliable indicator of mental retardation, and other factors must also be considered where it does not accurately reflect the person’s real-life functioning abilities. Lycoming-Clinton County, 884 A.2d at 384-85...." [T]o rely solely on a full scale IQ score of 70 or below to diagnose MR [mental retardation] would be inconsistent with the statutory definition of MR....Notably, the statutory definition of MR does not require a base IQ score to diagnose an individual as mentally retarded and, in fact, does not mention IQ.... To determine if Petitioner is eligible for mental retardation waiver funded services, it is necessary for DPW to consider whether she is impaired in her maturation, learning and social adjustment, not to take an IQ score, let alone a partial IQ score, and automatically categorize her based upon that score."
All that the relevant regulation, 55 Pa. Code §6210.63(3), "requires is that 'documentation' is presented that “substantiates” that Petitioner’s mental retardation was manifest” before her 22nd birthday, not that the evaluation that resulted in the documentation occurred before her 22nd birthday."
Tuesday, September 15, 2009
federal courts - civil rights - attorney fees - award to defendant
McCarthy v. Darman - ED Pa. - September 9, 2009
http://www.paed.uscourts.gov/documents/opinions/09D1126P.pdf
42 U.S.C. § 1988 allows a court to award attorneys’ fees to the prevailing party in a § 1983 case. Defendants in a § 1983 action are eligible to recover attorneys’ fees under § 1988, but a prevailing defendant must meet a more stringent standard than a prevailing plaintiff in order to do so.... A prevailing defendant should only be awarded attorneys’ fees if the plaintiff’s claim was “frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so.”
The Third Circuit has articulated several factors that should be considered when determining whether a claim was frivolous, including “whether the plaintiff established a prima facie case, the defendant offered to settle, the trial court dismissed the case prior to trial or the case continued until a trial on the merits.” In addition, the court should consider whether the issues litigated were ones of first impression, and what the real risk of the alleged injury was to the plaintiff.
Each case must be decided individually, however, and these factors are “guidelines, not strict rules.” “[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.”
In this case, the court held that plaintiff's substantive due process claims were frivolous but that his procedure due process claims were not, so the defendant's claim for fees was denied.
http://www.paed.uscourts.gov/documents/opinions/09D1126P.pdf
42 U.S.C. § 1988 allows a court to award attorneys’ fees to the prevailing party in a § 1983 case. Defendants in a § 1983 action are eligible to recover attorneys’ fees under § 1988, but a prevailing defendant must meet a more stringent standard than a prevailing plaintiff in order to do so.... A prevailing defendant should only be awarded attorneys’ fees if the plaintiff’s claim was “frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so.”
The Third Circuit has articulated several factors that should be considered when determining whether a claim was frivolous, including “whether the plaintiff established a prima facie case, the defendant offered to settle, the trial court dismissed the case prior to trial or the case continued until a trial on the merits.” In addition, the court should consider whether the issues litigated were ones of first impression, and what the real risk of the alleged injury was to the plaintiff.
Each case must be decided individually, however, and these factors are “guidelines, not strict rules.” “[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.”
In this case, the court held that plaintiff's substantive due process claims were frivolous but that his procedure due process claims were not, so the defendant's claim for fees was denied.
mortgage foreclosure - standing - post-complaint assignment
US Bank v. Mallory - Superior Court - September 14, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15045_09.pdf
The Superior Court denied the homeowner's petition to open/strike a default judgment. The Petition to Strike relied on the fact that, at the time the complaint was filed, the mortgage had not been assigned to plaintiff but rather was alleged to be in the process of being assigned. The homeowner claimed that this failure was in violation of Pa. RCP 1147(a)(1), which requires a statment of the date of assignment and the place where it is recorded, and of Pa. R.C.P. 1019(i), which requires that, where claims are based a writing, the writing must be attached.
Plaintiff filed its foreclosure complaint on November 14, 2007. The mortgage was not assigned to plaintiff untilDecember 28, 2007, and was not recorded until January 15, 2008 -- after a default judgment had already been entered against the homeowner, for failure to respond to the complaint.
Petition to Strike
The court concluded that "there was not a fatal defect apparent on the record" and that the plaintiff "sufficiently set forth the existence and date of the mortgage," the fact that plaintiff was the mortgage holder and "was now the legal owner of the mortgage, thereby indicating it had assumed all the rights and remedies related to the mortgage, and the fact [plaintiff] was seeking to formalize the assignment....Simply put, [plaintiff's] complaint sufficiently put [the homeowner] on notice of [plaintiff's] claim of interest with regard to the subject mortgage. Contrary to [the homeowner's] suggestion, we conclude that Pa.R.C.P. 1147(a)(1) does not require that a party have a recorded assignment as a prerequisite to filing a complaint in mortgage foreclosure."
Concerning the failure to attach the assignment to the complaint, as required by Pa. R.C.P. 1019(i), the court said that the "averment that [plaintiff] was in the process of formalizing the assignment sufficiently explained why, under Pa.R.C.P. 1019, a copy of the written assignment was not attached to the complaint. Thereafter, as [plaintiff] explained in the complaint that it was in the process of doing, the written assignment was executed on December 28, 2007, and recorded on January 15, 2008. We are convinced that [plaintiff] adequately met the requirements of Pa.R.C.P. 1147 and 1019, and we note that, to the extent [the homeowner] believes [plaintiff] was not the legal owner of the mortgage, who was in the process of formalizing the assignment, then the proper recourse would have been to go beyond the face of the record and seek to open the judgment on this basis."
The court squarely rejected the argument that "the trial court should have granted [the homeowner's] to strike since it was apparent on the face of the record that [plaintiff] did not have standing to file a complaint in mortgage foreclosure against [the homeowner]. The “crux” of [homeowner's] argument is that, before [plaintiff] could file a complaint in mortgage foreclosure, [plaintiff] was required to have executed and recorded a written assignment..., thereby indicating it was the real party in interest. We reject this argument....Simply put, contrary to [the homeowner's] suggestion, the recording of an assignment of the mortgage was not a prerequisite to plaintiff/assignee having standing to seek enforcement of the mortgage via a mortgage foreclosure action."
Petition to Open
The court noted the the homeowner had "averred meritorious defenses, namely, that she lacked a security interest in the property due to her rescission of the loan, the loan should not be enforced since it is a predatory loan, the loan was void due to the broker’s violation of Pennsylvania’s Credit Services Act, and the loan violated Pennsylvania’s consumer protection statute."
However, it did not consider these defenses, holding that the homeowner's petition to open filed 82 days after the entry of judgment was not "promptly filed" and that she did not have a valid excuse for not filing earlier, rejecting her claim of lack of sophistication and belated awareness of potentially valid defenses. The court said that "this is a case where [the homeowner], despite numerous notices to secure counsel, simply did not do so until approximately three months after the complaint was filed and six weeks after the default judgment was entered against her. The fact [she]may be unsophisticated in legal and financial matters is all the more reason she should have heeded the notices to secure legal counsel at once, and her deliberate decision not to defend does not provide a reasonable explanation or excuse necessary to open the default judgment." Thus, "even assuming [she] pleaded a meritorious defense, the trial court properly denied [the homeowner's] petition to open the default judgment."
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15045_09.pdf
The Superior Court denied the homeowner's petition to open/strike a default judgment. The Petition to Strike relied on the fact that, at the time the complaint was filed, the mortgage had not been assigned to plaintiff but rather was alleged to be in the process of being assigned. The homeowner claimed that this failure was in violation of Pa. RCP 1147(a)(1), which requires a statment of the date of assignment and the place where it is recorded, and of Pa. R.C.P. 1019(i), which requires that, where claims are based a writing, the writing must be attached.
Plaintiff filed its foreclosure complaint on November 14, 2007. The mortgage was not assigned to plaintiff untilDecember 28, 2007, and was not recorded until January 15, 2008 -- after a default judgment had already been entered against the homeowner, for failure to respond to the complaint.
Petition to Strike
The court concluded that "there was not a fatal defect apparent on the record" and that the plaintiff "sufficiently set forth the existence and date of the mortgage," the fact that plaintiff was the mortgage holder and "was now the legal owner of the mortgage, thereby indicating it had assumed all the rights and remedies related to the mortgage, and the fact [plaintiff] was seeking to formalize the assignment....Simply put, [plaintiff's] complaint sufficiently put [the homeowner] on notice of [plaintiff's] claim of interest with regard to the subject mortgage. Contrary to [the homeowner's] suggestion, we conclude that Pa.R.C.P. 1147(a)(1) does not require that a party have a recorded assignment as a prerequisite to filing a complaint in mortgage foreclosure."
Concerning the failure to attach the assignment to the complaint, as required by Pa. R.C.P. 1019(i), the court said that the "averment that [plaintiff] was in the process of formalizing the assignment sufficiently explained why, under Pa.R.C.P. 1019, a copy of the written assignment was not attached to the complaint. Thereafter, as [plaintiff] explained in the complaint that it was in the process of doing, the written assignment was executed on December 28, 2007, and recorded on January 15, 2008. We are convinced that [plaintiff] adequately met the requirements of Pa.R.C.P. 1147 and 1019, and we note that, to the extent [the homeowner] believes [plaintiff] was not the legal owner of the mortgage, who was in the process of formalizing the assignment, then the proper recourse would have been to go beyond the face of the record and seek to open the judgment on this basis."
The court squarely rejected the argument that "the trial court should have granted [the homeowner's] to strike since it was apparent on the face of the record that [plaintiff] did not have standing to file a complaint in mortgage foreclosure against [the homeowner]. The “crux” of [homeowner's] argument is that, before [plaintiff] could file a complaint in mortgage foreclosure, [plaintiff] was required to have executed and recorded a written assignment..., thereby indicating it was the real party in interest. We reject this argument....Simply put, contrary to [the homeowner's] suggestion, the recording of an assignment of the mortgage was not a prerequisite to plaintiff/assignee having standing to seek enforcement of the mortgage via a mortgage foreclosure action."
Petition to Open
The court noted the the homeowner had "averred meritorious defenses, namely, that she lacked a security interest in the property due to her rescission of the loan, the loan should not be enforced since it is a predatory loan, the loan was void due to the broker’s violation of Pennsylvania’s Credit Services Act, and the loan violated Pennsylvania’s consumer protection statute."
However, it did not consider these defenses, holding that the homeowner's petition to open filed 82 days after the entry of judgment was not "promptly filed" and that she did not have a valid excuse for not filing earlier, rejecting her claim of lack of sophistication and belated awareness of potentially valid defenses. The court said that "this is a case where [the homeowner], despite numerous notices to secure counsel, simply did not do so until approximately three months after the complaint was filed and six weeks after the default judgment was entered against her. The fact [she]may be unsophisticated in legal and financial matters is all the more reason she should have heeded the notices to secure legal counsel at once, and her deliberate decision not to defend does not provide a reasonable explanation or excuse necessary to open the default judgment." Thus, "even assuming [she] pleaded a meritorious defense, the trial court properly denied [the homeowner's] petition to open the default judgment."
Friday, September 11, 2009
social security - disability - obesity - findings/reasons
Diaz v. Commissioner or Social Security - 3rd Circuit - August 12, 2009
http://www.ca3.uscourts.gov/opinarch/084067p.pdf
Claimant's case was remanded because of the failure of the ALJ to properly evaluate the effect of her morbid obesity on her ability to work.
The ALJ’s ruling is not supported by substantial evidence because, contrary to SocialSecurity Ruling (“SSR”) 00-3p, no consideration was given to Diaz’s severe obesity. The ALJ acknowledged this impairment at step two but failed to consider its impact, in combination with her other impairments, at step three, as required.
SSR 00-3p replaced an automatic designation of obesity as a Listed impairment, based on a claimant’s height and weight, with an individualized inquiry, focused on the combined effect of obesity and other severe impairments afflicting the claimant: “We will also find equivalence if an individual has multiple impairments, including obesity, no one of which meets or equals the requirements of a listing, but the combination of impairments is equivalent in severity to a listed impairment.” Although SSR 00-3p was superseded by SSR 02-1p, SSR 02-1p did not materially amend SSR 00-3p. See Rutherford v. Barnhart, 399 F.3d 546, 552 n.4 (3d Cir. 2005).
SSR 00-3p instructs that “obesity may increase the severity of coexisting or related impairments to the extent that the combination of impairments meets the requirements of a listing. This is especially true of musculoskeletal, respiratory, and cardiovascular impairments. It may also be true for other coexisting or related impairments, including mental disorders.” Hence, an ALJ must meaningfully consider the effect of a claimant’s obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step.
In Burnett, the court held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements that a condition does not constitute the medical equivalent of a listed impairment are insufficient. The ALJ must provide a “discussion of the evidence” and an “explanation of reasoning” for his conclusion sufficient to enable meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n.3 (3d Cir. 2004).
The court also remanded on the basis of the ALJ's failure to give proper wieght and consideration to the treating physician's opinion, which was well supported by the evidence.
http://www.ca3.uscourts.gov/opinarch/084067p.pdf
Claimant's case was remanded because of the failure of the ALJ to properly evaluate the effect of her morbid obesity on her ability to work.
The ALJ’s ruling is not supported by substantial evidence because, contrary to SocialSecurity Ruling (“SSR”) 00-3p, no consideration was given to Diaz’s severe obesity. The ALJ acknowledged this impairment at step two but failed to consider its impact, in combination with her other impairments, at step three, as required.
SSR 00-3p replaced an automatic designation of obesity as a Listed impairment, based on a claimant’s height and weight, with an individualized inquiry, focused on the combined effect of obesity and other severe impairments afflicting the claimant: “We will also find equivalence if an individual has multiple impairments, including obesity, no one of which meets or equals the requirements of a listing, but the combination of impairments is equivalent in severity to a listed impairment.” Although SSR 00-3p was superseded by SSR 02-1p, SSR 02-1p did not materially amend SSR 00-3p. See Rutherford v. Barnhart, 399 F.3d 546, 552 n.4 (3d Cir. 2005).
SSR 00-3p instructs that “obesity may increase the severity of coexisting or related impairments to the extent that the combination of impairments meets the requirements of a listing. This is especially true of musculoskeletal, respiratory, and cardiovascular impairments. It may also be true for other coexisting or related impairments, including mental disorders.” Hence, an ALJ must meaningfully consider the effect of a claimant’s obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step.
In Burnett, the court held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements that a condition does not constitute the medical equivalent of a listed impairment are insufficient. The ALJ must provide a “discussion of the evidence” and an “explanation of reasoning” for his conclusion sufficient to enable meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n.3 (3d Cir. 2004).
The court also remanded on the basis of the ALJ's failure to give proper wieght and consideration to the treating physician's opinion, which was well supported by the evidence.
Friday, September 04, 2009
mortgages - HEMAP - reasonable prospect - speculative income
Smeal v. PHFA - Cmwlth. Court - August 5, 2009 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2216CD08_8-5-09.pdf
The court upheld PHFA's decision that the applicant for HEMAP assistance from PHFA did not have a reasonable prospect of resuming full mortgage payments within the statutorily specified time -- in that case, 24 months.
The agency found that the applicant was "financially overextended" and that her expenses had exceeded her income for some time. Most pertinent, it found that her claims of future income from a personal business were "purely speculative" and did not establish the required "reasonable prospect" . The court thus approved of the agency's consideration of the applicant's "actual income history without considering...speculative income" that she claimed she would receive.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2216CD08_8-5-09.pdf
The court upheld PHFA's decision that the applicant for HEMAP assistance from PHFA did not have a reasonable prospect of resuming full mortgage payments within the statutorily specified time -- in that case, 24 months.
The agency found that the applicant was "financially overextended" and that her expenses had exceeded her income for some time. Most pertinent, it found that her claims of future income from a personal business were "purely speculative" and did not establish the required "reasonable prospect" . The court thus approved of the agency's consideration of the applicant's "actual income history without considering...speculative income" that she claimed she would receive.
consumer - gist-of-the-action doctrine - contract v. tort
DeFebo v. Anderson Windows Inc. - ED Pa. - September 3, 2009
http://www.paed.uscourts.gov/documents/opinions/09D1082P.pdf
Consumer's tort claims against window manufacturer and seller dismissed under the gist-of-the-action doctrine. The court characterized this as follows: "Something like a gathering storm, this is one in an increasing number of cases where the plaintiff attempts to turn straightforward breach of contract and warranty claims into tort claims. Pennsylvania law is not hospitable to such attempts. " The court dismissed plaintiff's tort claims in a complaint which alleged breach of contract, misrepresentation, breach of express warranty, breach of implied warranties, and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law
"Under Pennsylvania law, the gist of the action doctrine “precludes a plaintiff from recasting a breach of contract claim into a tort claim.” (citations omitted) For the tort action to survive, “‘the wrong ascribed to [the] defendant must be the gist of the action, the contract being collateral.’”...The doctrine specifically bars claims on extra-contractual statements regarding duties or obligations of parties that are later outlined in the contract....
Notably, fraud-in-the-inducement claims are not always barred by the gist of the action doctrine....(“[F]raud in the inducement of a contract would not necessarily be covered by [the gist of the action] doctrine because fraud to induce a person to enter into a contract is generally collateral to (i.e., not ‘interwoven’ with) the terms of the contract itself.”). However, the type of fraud is not necessarily dispositive, , and courts have applied the doctrine to claims for fraud-in-the-inducement.
Rather, a tort claim is generally barred by the doctrine if (1) it arises solely from a contract between the parties; (2) the duties allegedly breached were created and grounded in contract itself; (3) the liability stems from a contract; or (4) the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract.”
http://www.paed.uscourts.gov/documents/opinions/09D1082P.pdf
Consumer's tort claims against window manufacturer and seller dismissed under the gist-of-the-action doctrine. The court characterized this as follows: "Something like a gathering storm, this is one in an increasing number of cases where the plaintiff attempts to turn straightforward breach of contract and warranty claims into tort claims. Pennsylvania law is not hospitable to such attempts. " The court dismissed plaintiff's tort claims in a complaint which alleged breach of contract, misrepresentation, breach of express warranty, breach of implied warranties, and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law
"Under Pennsylvania law, the gist of the action doctrine “precludes a plaintiff from recasting a breach of contract claim into a tort claim.” (citations omitted) For the tort action to survive, “‘the wrong ascribed to [the] defendant must be the gist of the action, the contract being collateral.’”...The doctrine specifically bars claims on extra-contractual statements regarding duties or obligations of parties that are later outlined in the contract....
Notably, fraud-in-the-inducement claims are not always barred by the gist of the action doctrine....(“[F]raud in the inducement of a contract would not necessarily be covered by [the gist of the action] doctrine because fraud to induce a person to enter into a contract is generally collateral to (i.e., not ‘interwoven’ with) the terms of the contract itself.”). However, the type of fraud is not necessarily dispositive, , and courts have applied the doctrine to claims for fraud-in-the-inducement.
Rather, a tort claim is generally barred by the doctrine if (1) it arises solely from a contract between the parties; (2) the duties allegedly breached were created and grounded in contract itself; (3) the liability stems from a contract; or (4) the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract.”
Thursday, September 03, 2009
UC - independent contractor - "online mentor"
Thomas Edison State College v. UCBR - August 26, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2284CD08_8-26-09.pdf
An "online mentor" of students, paid on a per-student basis, was held to be independent contractor rather than an employee and thus disqualified under Section 4(l)(2)(B) of the UC Law, 43 P.S. § 753(l)(2)(B), which creates a two-pronged test in order to determine whether a person is an employee or not: first, whether the person was free from control and direction in the performance of the work; and second, whether the business was one which is customarily engaged in as an independent trade or business. Venango Newspapers v. UCBR, 631 A.2d 1384 (Pa. Cmwlth. 1993).
The court also relied on CE Credits Online v. UCBR, 946 A.2d 1162 (Pa. Cmwlth. 2008), petition for allowance of appeal denied, 971 A.2d 493 (2009). Glatfelter Barber Shop v. UCBR, 957 A.2d 786, 789 (Pa. Cmwlth.), petition for allowance of appeal denied, 599 Pa. 712, 962 A.2d 1198 (2008); Pavalonis v. UCBR, 426 A.2d 215 (Pa. Cmwlth. 1981). Danielle Viktor, Ltd. v. DOLI, 586 Pa. 196, 892 A.2d 781 (2006).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2284CD08_8-26-09.pdf
An "online mentor" of students, paid on a per-student basis, was held to be independent contractor rather than an employee and thus disqualified under Section 4(l)(2)(B) of the UC Law, 43 P.S. § 753(l)(2)(B), which creates a two-pronged test in order to determine whether a person is an employee or not: first, whether the person was free from control and direction in the performance of the work; and second, whether the business was one which is customarily engaged in as an independent trade or business. Venango Newspapers v. UCBR, 631 A.2d 1384 (Pa. Cmwlth. 1993).
The court also relied on CE Credits Online v. UCBR, 946 A.2d 1162 (Pa. Cmwlth. 2008), petition for allowance of appeal denied, 971 A.2d 493 (2009). Glatfelter Barber Shop v. UCBR, 957 A.2d 786, 789 (Pa. Cmwlth.), petition for allowance of appeal denied, 599 Pa. 712, 962 A.2d 1198 (2008); Pavalonis v. UCBR, 426 A.2d 215 (Pa. Cmwlth. 1981). Danielle Viktor, Ltd. v. DOLI, 586 Pa. 196, 892 A.2d 781 (2006).
housing - sec. 8 - termination - admin. findings
Housing Authority of Pittsburgh v. Degelman - Cmwlth. Court - September 2, 2009 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/228CD09_9-2-09.pdf
This decision is not reported and therefore not citeable http://www.pacode.com/secure/data/210/chapter67/chap67toc.html#67.55, but it may be of some use to advocates.
The city housing authority moved to terminate the tenancy of a sec. 8 tenant for alleged drug-related criminal activity. At the admin. hearing, police testified about finding lots of used needles and other drug paraphenalia on the premises, for which the tenant said other people were responsible.
Apparently the hearing officer did not making findings about the tenant's credibility and, in his decision, did not refer to the testimony of the tenant or the maintenance man, which was clearly relevant to the decision. The court thus said that
(f)ederal courts that have considered the degree to which a decision has satisfied this requirement [of stating reasons for the decision] have generally not required a thorough review and evaluation of all of the evidence parties have presented. Nor have they appeared to have required the fact finder to explain the reasons why he or she apparently did not find certain evidence credible. See, e.g., Edgecomb v. Housing Authority of the Town of Vernon, 824 F. Supp. 312 (D. Conn. 1993); 49 Federal Register 12215 (describing reasons for development of 24 C.F.R. §982.555(e)(6)). Admittedly, the hearing officer satisfied the requirements of 24 C.F.R. §982.555(e)(6). She described the testimony of Officer Sisak, which indicated that he found drug paraphernalia in [the tenant's] apartment. However, our review is governed by Pennsylvania standards. While the federal regulations may reflect a more relaxed standard, our applicable law requires adjudicators acting under the authority of the Local Agency Law to render decisions that provide an adequate basis for appellate review.
Consequently, we believe that the hearing officer was required to evaluate the testimony of [the tenant and maintenance man] in order to determine [the tenant's] culpability with regard to the drug activity. The failure of the hearing officer to consider this testimony essentially precludes us from meaningful appellate review, as we are unable to discern from the hearing officer’s decision whether said testimony was considered at all or simply rejected. Moreover, we are unable to discern whether the hearing officer exercised her discretion noted above due to the lack of any findings with respect to this testimony.... Because the hearing officer never indicated in her decision whether she believed [the tenant or maintenance man], we cannot discern whether the hearing officer simply ignored this evidence or silently concluded that the testimony was not credible.
The court remanded the cases to the housing authority hearing examiner "for further findings consistent with this opinion."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/228CD09_9-2-09.pdf
This decision is not reported and therefore not citeable http://www.pacode.com/secure/data/210/chapter67/chap67toc.html#67.55, but it may be of some use to advocates.
The city housing authority moved to terminate the tenancy of a sec. 8 tenant for alleged drug-related criminal activity. At the admin. hearing, police testified about finding lots of used needles and other drug paraphenalia on the premises, for which the tenant said other people were responsible.
Apparently the hearing officer did not making findings about the tenant's credibility and, in his decision, did not refer to the testimony of the tenant or the maintenance man, which was clearly relevant to the decision. The court thus said that
(f)ederal courts that have considered the degree to which a decision has satisfied this requirement [of stating reasons for the decision] have generally not required a thorough review and evaluation of all of the evidence parties have presented. Nor have they appeared to have required the fact finder to explain the reasons why he or she apparently did not find certain evidence credible. See, e.g., Edgecomb v. Housing Authority of the Town of Vernon, 824 F. Supp. 312 (D. Conn. 1993); 49 Federal Register 12215 (describing reasons for development of 24 C.F.R. §982.555(e)(6)). Admittedly, the hearing officer satisfied the requirements of 24 C.F.R. §982.555(e)(6). She described the testimony of Officer Sisak, which indicated that he found drug paraphernalia in [the tenant's] apartment. However, our review is governed by Pennsylvania standards. While the federal regulations may reflect a more relaxed standard, our applicable law requires adjudicators acting under the authority of the Local Agency Law to render decisions that provide an adequate basis for appellate review.
Consequently, we believe that the hearing officer was required to evaluate the testimony of [the tenant and maintenance man] in order to determine [the tenant's] culpability with regard to the drug activity. The failure of the hearing officer to consider this testimony essentially precludes us from meaningful appellate review, as we are unable to discern from the hearing officer’s decision whether said testimony was considered at all or simply rejected. Moreover, we are unable to discern whether the hearing officer exercised her discretion noted above due to the lack of any findings with respect to this testimony.... Because the hearing officer never indicated in her decision whether she believed [the tenant or maintenance man], we cannot discern whether the hearing officer simply ignored this evidence or silently concluded that the testimony was not credible.
The court remanded the cases to the housing authority hearing examiner "for further findings consistent with this opinion."
Thursday, August 27, 2009
custody - jurisdiction - home state - finding
Bouzos-Reilly v. Reilly - Superior Court - August 27, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a20005_09.pdf
Because the trial judge failed to conduct a full hearing with relevant witnesses to elicit testimony regarding the underlying jurisdictional issue, there was insufficient evidence on the record to support the trial court’s findings. Thus, we reverse.
We recognize that the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S. §5401, et seq., is designed to eliminate a rush to the courthouse to determine jurisdiction. However, the UCCJEA is dependent on a proper finding that there is a home state. The judge in New York and the judge in Pennsylvania communicated by telephone, which is certainly proper. However, the determination of a home state should not be based on which judge speaks first to claim home state status. In this case, the New York court erred, and merely because that judge spoke first does not mean the Pennsylvania judge should automatically acquiesce to that determination.
A court's decision to exercise or decline jurisdiction is subject to an abuse of discretion standard of review and will not be disturbed absent an abuse of that discretion. Under Pennsylvania state law, an abuse of discretion occurs when the court has overridden or misapplied the law, when its judgment is manifestly unreasonable, or when there is insufficient evidence of record to support the court's findings. An abuse of discretion requires clear and convincing evidence that the trial court misapplied the law or failed to follow proper legal procedures. Billhime v. Billhime, 952 A.2d 1174, 1176 (Pa. Super. 2008) (citation omitted).
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a20005_09.pdf
Because the trial judge failed to conduct a full hearing with relevant witnesses to elicit testimony regarding the underlying jurisdictional issue, there was insufficient evidence on the record to support the trial court’s findings. Thus, we reverse.
We recognize that the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S. §5401, et seq., is designed to eliminate a rush to the courthouse to determine jurisdiction. However, the UCCJEA is dependent on a proper finding that there is a home state. The judge in New York and the judge in Pennsylvania communicated by telephone, which is certainly proper. However, the determination of a home state should not be based on which judge speaks first to claim home state status. In this case, the New York court erred, and merely because that judge spoke first does not mean the Pennsylvania judge should automatically acquiesce to that determination.
A court's decision to exercise or decline jurisdiction is subject to an abuse of discretion standard of review and will not be disturbed absent an abuse of that discretion. Under Pennsylvania state law, an abuse of discretion occurs when the court has overridden or misapplied the law, when its judgment is manifestly unreasonable, or when there is insufficient evidence of record to support the court's findings. An abuse of discretion requires clear and convincing evidence that the trial court misapplied the law or failed to follow proper legal procedures. Billhime v. Billhime, 952 A.2d 1174, 1176 (Pa. Super. 2008) (citation omitted).
child abuse - expungement - timely admin. decision - judicial delay
J.C. v. DPW - Cmwlth. Court - August 27, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2309CD08_8-27-09.pdf
The court affirmed the finding of abuse and rejected the argument that the "initial report of child abuse should be deemed “unfounded” by operation of law because a final determination was not made within the 60-day time limit of Section 6337(b) of the Child Protective Services Law (Law), 23 Pa. C.S. §6337(b). In this case, the determination was made more than 60 days after the appellant's plea but within 60 days of her sentencing.
The law -- 23 Pa. C.S. §6337(b), 23 Pa. C.S. §6303, and 55 Pa. Code §3490.69 -- "contemplates a suspension of the investigation/final determination period where, as here, “court action has been initiated and is responsible for the delay.” 23 Pa. C.S. §6337(b). More importantly, the regulations contemplate a suspension of the 60-day period where, as here, there is criminal court action pending and the agency reports that status to ChildLine. 55 Pa. Code §3490.67."
The court also rejected the argument that entry of a no contest plea is a judicial adjudication. Rather, the court found that "[f]or purposes of determining a report to be “founded” based on action in a pending criminal proceeding, we believe a judicial adjudication occurs at sentencing, and not earlier....[A] judicial adjudication in a criminal case occurs when an appealable judgment of sentence is imposed.
Under this interpretation, a suspension of the 60-day investigation/final determination period does not end with the entry of a plea in a criminal case; rather, the suspension may continue until a final, appealable judgment of sentence is imposed."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2309CD08_8-27-09.pdf
The court affirmed the finding of abuse and rejected the argument that the "initial report of child abuse should be deemed “unfounded” by operation of law because a final determination was not made within the 60-day time limit of Section 6337(b) of the Child Protective Services Law (Law), 23 Pa. C.S. §6337(b). In this case, the determination was made more than 60 days after the appellant's plea but within 60 days of her sentencing.
The law -- 23 Pa. C.S. §6337(b), 23 Pa. C.S. §6303, and 55 Pa. Code §3490.69 -- "contemplates a suspension of the investigation/final determination period where, as here, “court action has been initiated and is responsible for the delay.” 23 Pa. C.S. §6337(b). More importantly, the regulations contemplate a suspension of the 60-day period where, as here, there is criminal court action pending and the agency reports that status to ChildLine. 55 Pa. Code §3490.67."
The court also rejected the argument that entry of a no contest plea is a judicial adjudication. Rather, the court found that "[f]or purposes of determining a report to be “founded” based on action in a pending criminal proceeding, we believe a judicial adjudication occurs at sentencing, and not earlier....[A] judicial adjudication in a criminal case occurs when an appealable judgment of sentence is imposed.
Under this interpretation, a suspension of the 60-day investigation/final determination period does not end with the entry of a plea in a criminal case; rather, the suspension may continue until a final, appealable judgment of sentence is imposed."
Monday, August 24, 2009
LT - eviction - police involvement - civil rights action
Gerhart v. State Police - ED Pa. - August 13, 2009
http://www.paed.uscourts.gov/documents/opinions/09D1022P.pdf
The court refused to dismiss plaintiffs' sec. 1983 claims against two Pennsylvania State Police officers who forced them out of their mobile home. The real property on which the home was affixed had been sold at a sheriff's sale. However the PSP officers apparently were not acting pursuant to any specific court order, allowing them to force Plaintiff from their home, but rather only pursuant to the request of the buyer at the sheriff's sale.
The claims against the officers, the Commonwealth, and the state police, in their official capacities, were dismissed. "Section 1983 only imposes liability on “persons,” and Section 1985(3) only imposes liability on “two or more persons” who conspire together. 42 U.S.C. §§ 1983, 1985(3). For the purposes of Section 1983, state agencies and state officers in their official capacities are immune from liability because they are not considered “persons” "within the meaning of the statute.
Section 1983 - Fourth Amendment
However, the plaintiffs did allege "sufficient facts to state a claim that Defendant State Troopers violated Plaintiffs’ Fourth Amendment rights. The Fourth Amendment protects a person’s right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .”...
To establish a violation of the Fourth Amendment, Plaintiff must show that the “defendant’s actions (1) constituted a search or seizure within the meaning of the Fourth Amendment, and (2) were unreasonable in light of the surrounding circumstances.” ....A seizure occurs when there is a meaningful interference with a person’s possessory interest in his property. ...The acts of police officers in assisting an illegal eviction without an order, a writ, a warrant, or any other statutory authority can constitute an unreasonable seizure in violation of the Fourth Amendment.
Here, Plaintiffs allege that Defendant State Troopers evicted Plaintiffs from their mobile home and padlocked their door to prevent reentry without an order or legal authority. It is clear that such conduct, if true, plausibly amounts to an interference with Plaintiffs’ possessory interests. Plaintiffs also allege that the State Troopers lacked a court order and knowingly had no legal authority to evict Plaintiffs. Such behavior states a claim for an unreasonable seizure in violation of the Fourth Amendment.... See Open Inns, 24 F. Supp. 2d at 424 (holding that police officers who actively assist a private party to evict a tenant “without an order, a writ, a warrant, or any statutory authority [engage in] precisely the type of unreasonable behavior that the Fourth Amendment forbids”); accord Soldal, 506 U.S. at 68 (holding that the towing of a trailer was a seizure “subject to Fourth Amendment scrutiny even though no search within the meaning of the Amendment [took] place”); Gale v. Storti, 608 F. Supp. 2d 629, 633-34 (E.D. Pa. 2009).
Fourteenth Amendment
Plaintiffs have also sufficiently alleged that Defendant State Troopers violated Plaintiffs’ Fourteenth Amendment rights. “The fourteenth amendment prohibits state deprivations of life, liberty, or property without due process of law.” ...It is “well established that possessory interests in property invoke procedural due process protections.” At the core of procedural due process jurisprudence is the right to advance notice of significant deprivations of liberty or property and to a meaningful opportunity to be heard.”. To state a procedural due process claim, a plaintiff “must establish that the officers were acting as state actors when they deprived him of a property interest to which he had a legitimate claim of entitlement without the process he deserved.” . Here, as Plaintiffs allege that they were given no notice or opportunity to be heard prior to the State Troopers evicting them from their home, there is no question that Plaintiffs have sufficiently stated a claim that state actors deprived them of their property without due process of law.
official immunity
The Third Circuit has held that “it is not for law enforcement officers to decide who is entitled to possession of property.” See Abbott, 164 F.3d at 149. Rather, “it is the domain of the courts.” Further, the question of whether Defendant State Troopers acted reasonably is a fact-intensive inquiry.... This case is similar to Gale v. Storti, 608 F. Supp. 2d 629 (E.D. Pa. 2009), where various defendants moved for dismissal of the plaintiffs’ constitutional claims arising out an allegedly unlawful eviction. The district court noted that the relevant qualified immunity inquiry is “whether or not the officers made a reasonable mistake as to what the law requires,” and concluded that “[a]nswering this depends on a factual inquiry, particularly, exactly what documents were provided to the officers prior to going to the premises and what the contents of these documents were.”
As in Gale, there are simply too few settled facts in this case to definitively determine at this point whether the alleged constitutional violations by Defendant State Troopers were reasonable, thereby rendering the Troopers immune from liability under the doctrine of qualified immunity. There is a question as to whether Defendant State Troopers evicted Plaintiffs without legal authority and whether the State Troopers made a reasonable mistake as to what the law requires. These questions depend on a factual inquiry that has not yet been conducted. See id.; see also Open Inns, 24 F. Supp. 2d at 420 (noting on summary judgment that qualified immunity was inappropriate where the defendant officers, in repossessing the plaintiffs’ property, “went far beyond the ministerial act of serving process or doing their common law duty of keeping the peace”).
Plaintiffs’ Section 1983 claims cannot be dismissed on the ground of qualified immunity. Simply stated, at this preliminary stage, the Court finds that Plaintiffs have stated a claim that Defendant State Troopers unreasonably violated clearly established laws
http://www.paed.uscourts.gov/documents/opinions/09D1022P.pdf
The court refused to dismiss plaintiffs' sec. 1983 claims against two Pennsylvania State Police officers who forced them out of their mobile home. The real property on which the home was affixed had been sold at a sheriff's sale. However the PSP officers apparently were not acting pursuant to any specific court order, allowing them to force Plaintiff from their home, but rather only pursuant to the request of the buyer at the sheriff's sale.
The claims against the officers, the Commonwealth, and the state police, in their official capacities, were dismissed. "Section 1983 only imposes liability on “persons,” and Section 1985(3) only imposes liability on “two or more persons” who conspire together. 42 U.S.C. §§ 1983, 1985(3). For the purposes of Section 1983, state agencies and state officers in their official capacities are immune from liability because they are not considered “persons” "within the meaning of the statute.
Section 1983 - Fourth Amendment
However, the plaintiffs did allege "sufficient facts to state a claim that Defendant State Troopers violated Plaintiffs’ Fourth Amendment rights. The Fourth Amendment protects a person’s right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .”...
To establish a violation of the Fourth Amendment, Plaintiff must show that the “defendant’s actions (1) constituted a search or seizure within the meaning of the Fourth Amendment, and (2) were unreasonable in light of the surrounding circumstances.” ....A seizure occurs when there is a meaningful interference with a person’s possessory interest in his property. ...The acts of police officers in assisting an illegal eviction without an order, a writ, a warrant, or any other statutory authority can constitute an unreasonable seizure in violation of the Fourth Amendment.
Here, Plaintiffs allege that Defendant State Troopers evicted Plaintiffs from their mobile home and padlocked their door to prevent reentry without an order or legal authority. It is clear that such conduct, if true, plausibly amounts to an interference with Plaintiffs’ possessory interests. Plaintiffs also allege that the State Troopers lacked a court order and knowingly had no legal authority to evict Plaintiffs. Such behavior states a claim for an unreasonable seizure in violation of the Fourth Amendment.... See Open Inns, 24 F. Supp. 2d at 424 (holding that police officers who actively assist a private party to evict a tenant “without an order, a writ, a warrant, or any statutory authority [engage in] precisely the type of unreasonable behavior that the Fourth Amendment forbids”); accord Soldal, 506 U.S. at 68 (holding that the towing of a trailer was a seizure “subject to Fourth Amendment scrutiny even though no search within the meaning of the Amendment [took] place”); Gale v. Storti, 608 F. Supp. 2d 629, 633-34 (E.D. Pa. 2009).
Fourteenth Amendment
Plaintiffs have also sufficiently alleged that Defendant State Troopers violated Plaintiffs’ Fourteenth Amendment rights. “The fourteenth amendment prohibits state deprivations of life, liberty, or property without due process of law.” ...It is “well established that possessory interests in property invoke procedural due process protections.” At the core of procedural due process jurisprudence is the right to advance notice of significant deprivations of liberty or property and to a meaningful opportunity to be heard.”. To state a procedural due process claim, a plaintiff “must establish that the officers were acting as state actors when they deprived him of a property interest to which he had a legitimate claim of entitlement without the process he deserved.” . Here, as Plaintiffs allege that they were given no notice or opportunity to be heard prior to the State Troopers evicting them from their home, there is no question that Plaintiffs have sufficiently stated a claim that state actors deprived them of their property without due process of law.
official immunity
The Third Circuit has held that “it is not for law enforcement officers to decide who is entitled to possession of property.” See Abbott, 164 F.3d at 149. Rather, “it is the domain of the courts.” Further, the question of whether Defendant State Troopers acted reasonably is a fact-intensive inquiry.... This case is similar to Gale v. Storti, 608 F. Supp. 2d 629 (E.D. Pa. 2009), where various defendants moved for dismissal of the plaintiffs’ constitutional claims arising out an allegedly unlawful eviction. The district court noted that the relevant qualified immunity inquiry is “whether or not the officers made a reasonable mistake as to what the law requires,” and concluded that “[a]nswering this depends on a factual inquiry, particularly, exactly what documents were provided to the officers prior to going to the premises and what the contents of these documents were.”
As in Gale, there are simply too few settled facts in this case to definitively determine at this point whether the alleged constitutional violations by Defendant State Troopers were reasonable, thereby rendering the Troopers immune from liability under the doctrine of qualified immunity. There is a question as to whether Defendant State Troopers evicted Plaintiffs without legal authority and whether the State Troopers made a reasonable mistake as to what the law requires. These questions depend on a factual inquiry that has not yet been conducted. See id.; see also Open Inns, 24 F. Supp. 2d at 420 (noting on summary judgment that qualified immunity was inappropriate where the defendant officers, in repossessing the plaintiffs’ property, “went far beyond the ministerial act of serving process or doing their common law duty of keeping the peace”).
Plaintiffs’ Section 1983 claims cannot be dismissed on the ground of qualified immunity. Simply stated, at this preliminary stage, the Court finds that Plaintiffs have stated a claim that Defendant State Troopers unreasonably violated clearly established laws
Thursday, July 30, 2009
disability - reversal instead of remand
Soto v. Astrue - ED Pa. - July 28, 2009 (24 pp.)
http://www.paed.uscourts.gov/documents/opinions/09D0896P.pdf
The court reversed and granted benefits outright.
The ALJ finding that claimant can do light work is not supported by substantial evidence. The ALJ improperly gave "considerable weight" to the medical opinions of the examining physician and the over that of the treating physician, accorded only minimal weight, in spite of "voluminous evidence in the record provided by the treating physician" whose opinion was dismissed with a single sentence. The ALJ's explanation for this decision was inadequate and improper, as explained at length in the opinion.
In addition, the hypothetical question to the vocational expert was deficient.
Reversal instead of remand -- When this Court determines that the ALJ's decision is not supported by substantial evidence, it also has the power to reverse and direct an award of benefits. Allen v. Bowen, 881 F.2d 37, 43 (3d Cir. 1989) (citing Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984)). The district court should award benefits only when “the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22.
“When faced with such cases, it is unreasonable for a court to give the ALJ another opportunity to consider new evidence concerning the disability because the administrative proceeding would result only in further delay in the receipt of benefits.” Id. at 222; see also Morales, 225 F.3d at 320... In this case the record has been fully developed up to the time of the ALJ’s decision. The record contains extensive evidence from Plaintiff’s treating physicians, particularly notes for three years of treatment, and from Plaintiff’s several hospitalizations and physical therapy sessions. The ALJ held a hearing during which Plaintiff and a vocational expert testified.
Based on the analysis in the previous section, this Court has concluded that the opinion of treating physician, which concluded Plaintiff was unable to work, should be given substantial weight. Furthermore, although this Court concluded that the ALJ did not properly consider the impact Plaintiff’s necessary treatment will have on his ability to work, the vocational expert did testify on that issue, concluding that Plaintiff would be unemployable if he continued with the course of treatments he had followed for the past several years.
Given the well-developed record, no additional information is necessary to determine Plaintiff’s eligibility for benefits and thus there is no reason to remand this case to the ALJ for further consideration. Thus, this Court finds, based on the opinion of the primary treating physician, the medical evidence from other treating physicians, the responses of the vocational expert, and the credible testimony of Plaintiff, that Plaintiff is disabled. As such, this Court will award Plaintiff disability benefits.
http://www.paed.uscourts.gov/documents/opinions/09D0896P.pdf
The court reversed and granted benefits outright.
The ALJ finding that claimant can do light work is not supported by substantial evidence. The ALJ improperly gave "considerable weight" to the medical opinions of the examining physician and the over that of the treating physician, accorded only minimal weight, in spite of "voluminous evidence in the record provided by the treating physician" whose opinion was dismissed with a single sentence. The ALJ's explanation for this decision was inadequate and improper, as explained at length in the opinion.
In addition, the hypothetical question to the vocational expert was deficient.
Reversal instead of remand -- When this Court determines that the ALJ's decision is not supported by substantial evidence, it also has the power to reverse and direct an award of benefits. Allen v. Bowen, 881 F.2d 37, 43 (3d Cir. 1989) (citing Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984)). The district court should award benefits only when “the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22.
“When faced with such cases, it is unreasonable for a court to give the ALJ another opportunity to consider new evidence concerning the disability because the administrative proceeding would result only in further delay in the receipt of benefits.” Id. at 222; see also Morales, 225 F.3d at 320... In this case the record has been fully developed up to the time of the ALJ’s decision. The record contains extensive evidence from Plaintiff’s treating physicians, particularly notes for three years of treatment, and from Plaintiff’s several hospitalizations and physical therapy sessions. The ALJ held a hearing during which Plaintiff and a vocational expert testified.
Based on the analysis in the previous section, this Court has concluded that the opinion of treating physician, which concluded Plaintiff was unable to work, should be given substantial weight. Furthermore, although this Court concluded that the ALJ did not properly consider the impact Plaintiff’s necessary treatment will have on his ability to work, the vocational expert did testify on that issue, concluding that Plaintiff would be unemployable if he continued with the course of treatments he had followed for the past several years.
Given the well-developed record, no additional information is necessary to determine Plaintiff’s eligibility for benefits and thus there is no reason to remand this case to the ALJ for further consideration. Thus, this Court finds, based on the opinion of the primary treating physician, the medical evidence from other treating physicians, the responses of the vocational expert, and the credible testimony of Plaintiff, that Plaintiff is disabled. As such, this Court will award Plaintiff disability benefits.
UC - voluntary quit - conscious intention to quit
Ponce v. UCBR - July 30, 2009 - Cmwlth. Court - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2407CD08_7-30-09.pdf
The Court reversed the UCBR and held that claimant did not quit his job but rather was terminated by the employer for reasons which did not constitute willful misconduct.
Claimant was absent for several days following an alcohol overdose, brought on by a heated confrontation with the employer. Anything he might have said to the contrary to his wife while intoxicated cannot be used against him. "Statements made to one’s spouse while intoxicated do not constitute a resignation of employment. Accordingly, Claimant did not demonstrate a clear intent to resign his employment."
Moreover, the "Employer’s actions demonstrate that even if Employer believed that Claimant quit [his job] Employer did not accept his resignation but rather, continued to consider him an employee....Claimant’s testimony, also uncontroverted, established that when Lentz was able to speak to Claimant personally, his first question was when Claimant would be available to return to work. These comments are those of an employer anxious for a sick or injured employee to return to work, not those of an employer who believes a disgruntled employee has quit. Because Employer did not accept Claimant’s alleged resignation, it had no operative effect. Therefore, Claimant did not voluntarily quit."
The court found, rather, that the employer fired claimant when they told claimant that they did not want him to return to work when he was released from the hospital. This occurred three days after Claimant’s alleged resignation. During that three-day period, [employer] had consistently treated Claimant as an employee, never indicating that Employer accepted his resignation. Accordingly, it was the decision of the employer committee that caused Claimant’s separation from employment.... Employer did not contend that Claimant was ineligible by reason of his willful misconduct, and the Referee made no finding in that regard. Accordingly, the issue is not before us."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2407CD08_7-30-09.pdf
The Court reversed the UCBR and held that claimant did not quit his job but rather was terminated by the employer for reasons which did not constitute willful misconduct.
Claimant was absent for several days following an alcohol overdose, brought on by a heated confrontation with the employer. Anything he might have said to the contrary to his wife while intoxicated cannot be used against him. "Statements made to one’s spouse while intoxicated do not constitute a resignation of employment. Accordingly, Claimant did not demonstrate a clear intent to resign his employment."
Moreover, the "Employer’s actions demonstrate that even if Employer believed that Claimant quit [his job] Employer did not accept his resignation but rather, continued to consider him an employee....Claimant’s testimony, also uncontroverted, established that when Lentz was able to speak to Claimant personally, his first question was when Claimant would be available to return to work. These comments are those of an employer anxious for a sick or injured employee to return to work, not those of an employer who believes a disgruntled employee has quit. Because Employer did not accept Claimant’s alleged resignation, it had no operative effect. Therefore, Claimant did not voluntarily quit."
The court found, rather, that the employer fired claimant when they told claimant that they did not want him to return to work when he was released from the hospital. This occurred three days after Claimant’s alleged resignation. During that three-day period, [employer] had consistently treated Claimant as an employee, never indicating that Employer accepted his resignation. Accordingly, it was the decision of the employer committee that caused Claimant’s separation from employment.... Employer did not contend that Claimant was ineligible by reason of his willful misconduct, and the Referee made no finding in that regard. Accordingly, the issue is not before us."
Tuesday, July 28, 2009
federal courts - pleading - Twombly and Iqbal
Kamara v. Columbia Home Loans - 07/24/2009 - ED Pa.
http://www.paed.uscourts.gov/documents/opinions/09D0875P.pdf
The current standard for adequately pleading a claim was set out in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Under Twombly, to state a claim, a party’s factual allegations must raise a right to relief above the speculative level. Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (citing Twombly, 550 U.S. at 555).
The Supreme Court recently reaffirmed and clarified the Twombly standard in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The Iqbal Court explained that although a plaintiff is not required to make “detailed factual allegations,” Federal Rule 8 demands more than an “unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 1949.
To survive a motion to dismiss, a party cannot allege “labels and conclusions.” Twombly, 550 U.S. at 555. Rather, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is “plausible on its face.” Iqbal, 1927 S. Ct. at 1949.
A claim has facial plausibility when the plaintiff pleads sufficient factual content to allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id.
The Supreme Court has explained that “two working principles” underlie a motion to dismiss inquiry. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. at 1950.
Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. Determining whether a complaint states a plausible claim for relief is “a context specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but has not “shown,” that the pleader is entitled to relief within the meaning of Rule 8(a)(2).
http://www.paed.uscourts.gov/documents/opinions/09D0875P.pdf
The current standard for adequately pleading a claim was set out in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Under Twombly, to state a claim, a party’s factual allegations must raise a right to relief above the speculative level. Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (citing Twombly, 550 U.S. at 555).
The Supreme Court recently reaffirmed and clarified the Twombly standard in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The Iqbal Court explained that although a plaintiff is not required to make “detailed factual allegations,” Federal Rule 8 demands more than an “unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 1949.
To survive a motion to dismiss, a party cannot allege “labels and conclusions.” Twombly, 550 U.S. at 555. Rather, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is “plausible on its face.” Iqbal, 1927 S. Ct. at 1949.
A claim has facial plausibility when the plaintiff pleads sufficient factual content to allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id.
The Supreme Court has explained that “two working principles” underlie a motion to dismiss inquiry. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. at 1950.
Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. Determining whether a complaint states a plausible claim for relief is “a context specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but has not “shown,” that the pleader is entitled to relief within the meaning of Rule 8(a)(2).
Monday, July 27, 2009
housing authorities - sovereign immunity - tort suits
Rhoads v. Phila. Housing Authority - July 2009 - Cmwlth. Court (2-1)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1966CD08_7-27-09.pdf
Held: The housing authority is a "commonwealth agency" entitled to sovereign immunity under 42 Pa. C.S. sec. 8522 from a suit against PHA for intentional tort claims of wrongful use of civil proceedings and fraudulent misrepresentation, and demands for punitive damages based on allegations that the PHA filed a false claim against plaintiff, in another suit, for breach of contract.
The dissent argued that the PHA is not a "commonwealth agency" bur rather a "local authority," not entitled to immunity under the statute.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1966CD08_7-27-09.pdf
Held: The housing authority is a "commonwealth agency" entitled to sovereign immunity under 42 Pa. C.S. sec. 8522 from a suit against PHA for intentional tort claims of wrongful use of civil proceedings and fraudulent misrepresentation, and demands for punitive damages based on allegations that the PHA filed a false claim against plaintiff, in another suit, for breach of contract.
The dissent argued that the PHA is not a "commonwealth agency" bur rather a "local authority," not entitled to immunity under the statute.
Friday, July 24, 2009
subpoenas - service - minors - Pa. R.C.P. 234.2
In Re: Amendment of Rule 234.2 - Issuance and Service of Subpoenas; No. 514 Civil Procedural Rules Docket, Opinion By: per curiam, Posted By: W.D. Prothonotary
Date Rendered: 7/23/2009, Date Posted: 7/23/2009
Opinion Type: Rules 514civ.pdf
Date Rendered: 7/23/2009, Date Posted: 7/23/2009
Opinion Type: Rules 514civ.attach.pdf
Date Rendered: 7/23/2009, Date Posted: 7/23/2009
Opinion Type: Rules 514civ.rpt.pdf
Explanatory Comment
To provide greater protection to minors, Rule 234.2 has been amended to provide a separate procedure for the issuance and service of a subpoena on a witness who is a minor. The amendment provides that a subpoena must be served upon the minor and the guardian of the minor. A subpoena may be served on a minor who is a witness without also serving the guardian if a court has reviewed and given prior approval for the issuance of the subpoena upon good cause shown.
Thursday, July 23, 2009
federal courts - attorney fees - effect of negotiations
Lohman v. Duryea Borough - 3d Circuit - July 23, 2009
http://www.ca3.uscourts.gov/opinarch/083524p.pdf
"Settlement negotiations may be relevant in measuring success, and, if so, are clearly only one factor to be considered in the award of fees." (emphasis in original)
http://www.ca3.uscourts.gov/opinarch/083524p.pdf
"Settlement negotiations may be relevant in measuring success, and, if so, are clearly only one factor to be considered in the award of fees." (emphasis in original)
abuse - expungement - recanted allegations
Bucks County CYS v. DPW - Cmwlth. Court - July 23, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2193CD08_7-23-09.pdf
Court affirmed the admin. decision to expunge CYS finding of abuse, based mostly on the 14 year-old alleged victim's testimony at the hearing, at which she recanted prior statements alleging sexual abuse by her father..
The court rejected the CYS claims that it was error to credit the recantation of A.G. and ignore the testimony of other witnesses. CYS has the burden of establishing by substantial evidence that an indicated report of child abuse is accurate. Bucks County CYS v. DPW, 808 A.2d 990, 993 (Pa. Cmwlth. 2002). If CYS fails to sustain its burden, the request for expungement will be granted. Id.
When the fact finder has determined the weight and the credibility of evidence, the court will not disturb such determinations on review. S.T. v. DPW, 681 A.2d 853, 856 (Pa. Cmwlth. 1996), appeal denied, 547 Pa. 747, 690 A.2d 1165 (1997).
In this case, the ALJ determined that the testimony of A.G., in which she recanted her previous accusations, was credible. Although CYS argues that A.G. was lying when she recanted the allegations, the ALJ and BHA determined otherwise. The court is bound by such determination.
Having credited the testimony of A.G., only the hearsay testimony of the CYS investigator, the grandmother and another person remained. Hearsay evidence, even if admissible and not objected to, does not alone constitute substantial evidence. A.Y. v. DPW, 537 Pa. 116, 641 A.2d 1148 (1994).
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http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2193CD08_7-23-09.pdf
Court affirmed the admin. decision to expunge CYS finding of abuse, based mostly on the 14 year-old alleged victim's testimony at the hearing, at which she recanted prior statements alleging sexual abuse by her father..
The court rejected the CYS claims that it was error to credit the recantation of A.G. and ignore the testimony of other witnesses. CYS has the burden of establishing by substantial evidence that an indicated report of child abuse is accurate. Bucks County CYS v. DPW, 808 A.2d 990, 993 (Pa. Cmwlth. 2002). If CYS fails to sustain its burden, the request for expungement will be granted. Id.
When the fact finder has determined the weight and the credibility of evidence, the court will not disturb such determinations on review. S.T. v. DPW, 681 A.2d 853, 856 (Pa. Cmwlth. 1996), appeal denied, 547 Pa. 747, 690 A.2d 1165 (1997).
In this case, the ALJ determined that the testimony of A.G., in which she recanted her previous accusations, was credible. Although CYS argues that A.G. was lying when she recanted the allegations, the ALJ and BHA determined otherwise. The court is bound by such determination.
Having credited the testimony of A.G., only the hearsay testimony of the CYS investigator, the grandmother and another person remained. Hearsay evidence, even if admissible and not objected to, does not alone constitute substantial evidence. A.Y. v. DPW, 537 Pa. 116, 641 A.2d 1148 (1994).
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