UC - willful misconduct - remoteness doctrine

Rich Carbide Burs, Inc. v. UCBR - Cmwlth Court - January 22, 2010 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/520CD09_1-22-10.pdf

The employer did not violate the remoteness doctrine by waiting from Thursday to the next Tuesday to fire the claimant for misconduct, because there was no substantial delay between the alleged act and the termination.

Where “there is an unexplained substantial delay between the claimant’s misconduct and the employer’s act to terminate the claimant, the remoteness doctrine will preclude an employer from seeking a denial of benefits based on allegations of willful misconduct.” Raimondi v. Unemployment Compensation Board of Review, 863 A.2d 1242, 1247 (Pa. Cmwlth. 2004) (emphasis in original). In the case at bar, the three-day delay between the altercation and Claimant’s discharge was, by any measure, insubstantial.

custody - homosexual parents - Constant A. overruled - shared custody - school-age children

M.A.T v. G.S.T - Superior Court - January 21, 2010

http://www.pacourts.us/OpPosting/Superior/out/e03008_09.pdf

Appellant M.A.T. (“Mother”) appeals the trial court’s order dated August 11, 2008 denying her petition for modification of a custody order granting Appellee G.S.T. (“Father”) primary physical custody of their daughter K.J.T. (“Daughter”).

The trial court based its decision on (1) its application of an evidentiary presumption against a homosexual parent, see, e.g., Constant A. v. Paul C.A., 496 A.2d 1 (Pa. Super. 1985); and (2) rejection of uncontroverted expert testimony recommending shared custody.

For the reasons set forth herein, we reverse the trial court’s order and grant Mother’s petition for modification of the custody order. In doing so, we overrule the holding and reasoning in Constant.

We further rule that the trial court in this case abused its discretion in rejecting the recommendations of the jointly retained custody evaluator and basing its decision to award primary physical custody to Father upon the trial court’s personal opinion that shared custody is seldom (if ever) in the best interests of school-age children.

Accordingly, we vacate the trial court’s order dated August 11, 2008 and remand for entry of an order consistent with this opinion.

Authenticating Web Pages as Evidence

An informative article entitled Authenticating Web Pages as Evidence, has been published in the Law Technology News section of law.com.

The article addresses the issue of how to authenticate evidence of something published on the Internet, typically in the form of a screen shot or PDF copy of a web page. it discusses authentication under the Federal Rules of Evidence, the use of the Internet Archive, and the issue of judicial notice of information on web sites.

The article was authored by M. Anderson Berry and David Kiernan. David C. Kiernan is a litigator in the Trial Practice Group of Jones Day in its San Francisco Office and is a member of the firm's E-discovery Committee. M. Anderson Berry is also an attorney in the same office.

mandamus

Petsinger v. OVR - Cmwlth. Court - January 21, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/263MD09_1-21-10.pdf


Petitioner brought mandamus action against the Office of Vocational Rehabilitation concerning his termination from employment following his threats against a fellow employee. The court held that mandamus would not lie.


The Civil Service Act, the federal Rehab Act, and the PA Rehab Act provided petitioner with adequate statutory and administrative remedies to seek redress for OVR’s alleged discriminatory treatment in his employment, his termination from that employment, his request to be reinstated or returned to his former civil service position, as well as OVR’s denial of his repeated requests to reopen his application for vocational rehabilitation services. Therefore, he is barred from raising these issues by petition for mandamus.

A writ of mandamus is an extraordinary remedy which compels the official performance of a ministerial act or a mandatory duty only where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a lack of any other appropriate or adequate remedy. McGill v. Dep’t of Health, Office of Drug & Alcohol Programs, 758 A.2d 268 (Pa. Cmwlth. 2000).

“Thus, in an action involving an administrative agency’s exercise of discretion, the court may only direct the agency to perform the discretionary act and may not direct the agency to exercise its judgment or discretion in a particular way or direct the retraction or reversal of action already taken.” Id. at 270. “The purpose of mandamus is not to establish legal rights, but to enforce those rights already established beyond peradventure.” Id.

A party challenging administrative decision-making who has not exhausted available administrative remedies is precluded from obtaining judicial review by mandamus6 or otherwise. Matesic v. Maleski, 624 A.2d 776 (Pa. Cmwlth. 1993). The availability of adequate, meaningful administrative remedies is a bar to a mandamus action. Mueller v. Pa. State Police Headquarters, 532 A.2d 900 (Pa. Cmwlth. 1987). In addition, an individual who allows his statutory appeal rights to expire cannot at a later date reclaim those appeal rights under the guise of a petition for mandamus. Lizzi v. Unemployment Comp. Bd. of Review, 466 Pa. 450, 353 A.2d 440 (1976).

disability - attorney fees - reasons for rejection of evidence - clearly established precedent

Kutoloski v. Astrue - ED Pa. - Janaury 2010

http://www.paed.uscourts.gov/documents/opinions/10D0062P.pdf

The ALJ's failure to explain his consideration of the testimony of the claimant's parents, after being directed to do so on remand, was contrary to clearly established precedent.

“[T]he burden is on the government to demonstrate that its position was ‘substantially justified.’” Watkins v. Harris, 556 F. Supp. 493, 498 (E.D. Pa. 1983). Specifically, the commissioner must show that its position has “a reasonable basis in both law and fact.” Pierce v. Underwood, 487 U.S. 552, 555 (1988).

Thus, “[w]hen the government’s legal position clearly offends established precedent . . . its position cannot said to be ‘substantially justified.’” Washington v. Heckler, 756 F.2d 959, 962 (3d Cir. 1985).

For this purpose, the government’s position includes “not only its litigation position but also the agency position that made the lawsuit necessary.” Id. at 961.

The commissioner has not met his burden. All of the commissioner’s arguments, in fact, fail for the same reason: The ALJ’s failure to explain his treatment of the testimony of plaintiff’s parents was contrary to established Third Circuit precedent. Although the ALJ recite[d] the testimony of plaintiff’s parents, the ALJ fail[ed] to properly explain his consideration of that testimony....

This failure violated the Third Circuit’s directive in Burnett v. Commissioner of Social Security Administration, 220 F.3d 112 (3d Cir. 2000), that the ALJ “must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence,” id. at 121 (emphasis added) – a requirement that exists because “‘[i]n the absence of such indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored,’” id. (quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).

In other words, the ALJ’s failure to explain his disregard of the testimony proffered by plaintiffs’ parents “clearly offends established precedent.” It therefore has no reasonable basis in law.

__._,_.___

UC - voluntary quit - sexual harassment

Miscoe Chiropratic Clinic v. UCBR - January 13, 2010 - unpublished memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1050CD09_1-13-10.pdf

The court rejected the employer's appeal and upheld the UCBR decision that claimant had good cause to quit her job because of sexual harassment by her employer, himself.

The court said that "[i]In order to establish a necessitous and compelling cause to leave employment, a claimant must establish that circumstances that produced real and substantial pressure to terminate employment existed; a reasonable person would act in the same manner; she acted with common sense; and she made a reasonable effort to preserve her employment. First Fed. Sav. Bank v. UCBR, 957 A.2d 811 (Pa. Cmwlth. 2008).

Sexual harassment may constitute a necessitous and compelling reason to voluntarily leave employment if the claimant can show that she acted with common sense and prudence to alleviate the sexual harassment. Hussey Copper Ltd. v. UCBR, 718 A.2d 894 (Pa. Cmwlth. 1998). Such common sense action includes providing the employer an opportunity to understand the nature of a claimant’s objections and to take steps to resolve those objections. Collier Stone Co. v. UCBR, 876 A.2d 481 (Pa. Cmwlth. 2005).

Where a mechanism, such as an employment policy, exists to deal with problems of sexual harassment, a claimant must make a good faith effort to utilize that mechanism. Hussey Copper Ltd. However, a claimant is not required to perform a futile act. Mauro v. UCBR, 751 A.2d 276 (Pa. Cmwlth. 2000). Further, where a claimant’s supervisor has knowledge of harassment against a claimant, the employer is deemed to have the knowledge as well, and the claimant is not required to report the harassment to higher levels of management. Peddicord v. UCBR, 647 A.2d 295 (Pa. Cmwlth. 1994).

Ultimately, the employer is responsible for eliminating harassment in the workplace. Collier Stone Co. We agree with the Board that Claimant would have committed a futile act by reporting the harassment to the office manager or Dr. Miscoe. It is undisputed that Dr. Miscoe is in charge of Employer’s office and is the only person in the office with the authority to terminate an employee. As the Board found, Dr. Miscoe grabbed and hugged Claimant, attempted to kiss her several times a week, and made inappropriate sexual comments to her. Claimant had no obligation to report the harassment to the office manager or Dr. Miscoe because the facts found by the Board establish that such report would have been futile. Accordingly, we affirm the Board’s order.

employment - wages - FLSA pre-empts Article III, sec. 24, of Pennsylvania Constitution

Council 13, AFSCME v. Commonwealth of Pennsylvania - Pennsylvania Supreme Court

majority - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-98-2009mo.pdf

consurring and dissenting opinion http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-98-2008codo.pdf

Article III, Section 24* of the Pennsylvania Constitution is preempted by the Fair Labor Standards Act of 1938, 29 U.S.C. § 206(a).

The governor is not prohibited from paying the wages of state employees who are covered by FLSA, but who are required to work from monies in the Commonwealth’s Treasury, where that money has not yet been appropriated by the General Assembly.

* Section 24 provides: No money shall be paid out of the treasury, except on appropriations made by law and on warrant issued by the proper officers; but cash refunds of taxes, licenses, fees, and other charges paid or collected, but not legally due, may be paid, as provided by law, without appropriation from the fund into which they were paid on warrant of the proper officer. PA. CONST. art. III, § 24.

TILA - disclosure violations - actual damages - detrimental reliance

Vallies et al. v. Skye Bank - Third Circuit - December 31, 2009

http://www.ca3.uscourts.gov/opinarch/084160p.pdf

In this putative class action, the sole issue presented by this appeal is whether a plaintiff must prove detrimental reliance in order to recover actual damages sustained because of a disclosure violation under § 1640(a) of the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601–67.

The District Court, following persuasive authority from our sister courts of appeals, concluded that detrimental reliance was required, and granted summary judgment for defendant because plaintiff failed to plead and could not prove detrimental reliance. We will affirm.

In fact, every court of appeals that has spoken on this issue has required a showing of detrimental reliance.5 Most district courts are in accord.6

Courts of appeal cases 5 Kline, 557 F.3d 285, 297 (6th Cir. 2009) (“[A]ctual damages require a showing of detrimental reliance.”); McDonald v. Checks-N-Advance, Inc. (In re Ferrell), 539 F.3d 1186, 1192 (9th Cir. 2008) (finding no valid basis to overturn the rule requiring a showing of detrimental reliance to establish actual damages); Gold Country Lenders v. Smith (In re Smith), 289 F.3d 1155, 1157 (9th Cir. 2002) (“We join with other circuits and hold that in order to receive actual damages for a TILA violation . . . a borrower must establish detrimental reliance.”); Turner v. Beneficial Corp., 242 F.3d 1023, 1028 (11th Cir. 2001) (en banc) (“We hold that detrimental reliance is an element of a TILA claim for actual damages . . . .”); Perrone v. Gen. Motors Acceptance Corp., 232 F.3d 433, 434–40 (5th Cir. 2000) (holding that detrimental reliance is an element of a claim for actual damages and rejecting numerous arguments to the contrary); Stout v. J.D.Byrider, 228 F.3d 709, 718 (6th Cir. 2000) (affirming the denial of class certification based on the need for individualized assessment of whether “each putative class member relied upon false representations or failures to disclose”); Peters v. Jim Lupient Oldsmobile Co., 220 F.3d 915, 917 (8th Cir. 2000) (requiring a showing of proximate causation and adopting a four-prong reliance test for establishing actual damages); Bizier v. Globe Fin. Servs., Inc., 654 F.2d 1, 4 (1st Cir. 1981) (noting in dicta the need to show causation for an award of actual damages “in addition to a threshold showing of a violation of a TILA requirement”).

District court cases 6 Inc., No. 04-2474, 2005 WL 1398512, at *9–10 (D.N.J. June 13, 2005); Nevarez v. O’Connor Chevrolet, Inc., 303 F. Supp. 2d 927, 934 (N.D. Ill. 2004); In re Currency Conversion Fee Antitrust Litig., 265 F. Supp. 2d 385 (S.D.N.Y. 2003); Cannon v. Cherry Hill Toyota, Inc., 161 F. Supp. 2d 362 (D.N.J. 2001); Anderson v. Rizza Chevrolet, Inc., 9 F. Supp. 2d 908, 913–14 (N.D. Ill. 1998); Brister v. All Star Chevrolet, Inc., 986 F. Supp. 1003, 1008 (E.D. La. 1997); Barlow v. Evans, 992 F. Supp. 1299, 1301 (M.D. Ala. 1997); Cirone-Shadow v. Union Nissan, 955 F. Supp. 938, 943 (N.D. Ill. 1997); Wiley v. Earl’s Pawn & Jewelry, Inc., 950 F. Supp. 1108, 1114–15 (S.D. Ala. 1997); Adiel v. Chase Fed. Sav. & Loan Ass’n, 630 F. Supp. 131, 133–35 (S.D. Fla. 1986), aff’d, 810 F.2d 1051 (11th Cir. 1987); McCoy v. Salem Mortgage Co., 74 F.R.D. 8, 12–13 (E.D. Mich. 1976). But see Lopez v. Orlor, 176 F.R.D. 35, 40 (D. Conn. 1997) (granting class certification and rejecting the argument that TILA plaintiffs cannot recover actual damages unless they could have gotten more favorable terms elsewhere); Sutliff v. County Sav. & Loan Co., 533 F. Supp. 1307, 1313 (N.D. Ohio 1982) (measuring actual damages to be the difference between the improperly increased interest rate and the original interest rate); In re Russell, 72 B.R. 855, 857 (Bankr. E.D. Pa. 1987) (concluding that actual damages are available for “substantial” TILA violations without the need to prove detrimental reliance).

What constitutes detrimental reliance not decided - This case does not present an occasion to evaluate which specific facts and circumstances constitute detrimental reliancebecause Vallies does not contend that he relied on Sky Bank’s disclosure violations. Because we find that a showing of detrimental reliance is required to recover actual damages for a TILA disclosure violation, and Vallies neither pled nor made such showing, the grant of summary judgment was proper on the claim for actual damages.19

19 The District Court supported its grant of summary judgment by reciting a four-prong test from the Eighth Circuit: “a plaintiff must show that ‘(1) he read the TILA disclosure statement; (2) he understood the charges being disclosed; (3) had the disclosure statement been accurate, he would have sought a lower price; and (4) he would have obtained a lower price.’” Mem. Order at 10 (citing Peters, 220 F.3d at 917). No doubt a plaintiff who can satisfy the Peters test will successfully establish detrimental reliance. Although Peters has been influential in many courts, including those in our circuit, e.g., Cannon v. Cherry Hill Toyota, Inc., 161 F. Supp. 2d 362 (D.N.J. 2001), others have used different language. For accuracy-of-disclosure violations like the ones presented here of determining actual (in contrast to statutory) damages.”). In sum, we have never rejected the requirement of detrimental reliance to recover actual damages for TILA disclosure violations.

For accuracy-of-disclosure violations like the ones presented here, other courts have held that detrimental reliance can be shown where plaintiffs can establish that they would have foregone the loan completely had they received and reviewed an accurate disclosure. See, e.g., United States v. Petroff-Kline, 557 F.3d 285, 297 (6th Cir. 2009) (“To establish detrimental reliance, the debtor must demonstrate that he or she would either have received a better interest rate for the loans elsewhere or would have elected not to take the loan had the required information been available.”); McDonald v. Checks-N-Advance, Inc. (In re Ferrell), 539 F.3d 1186, 1192 (9th Cir. 2008) (“The consumer must show that she ‘would either have secured a better interest rate elsewhere, or foregone the loan completely.’” (quoting Gold Country Lenders v. Smith (In re Smith), 289 F.3d at 1157)); Stout v. J.D. Byrider, 228 F.3d 709, 718 (6th Cir. 2000). Nevertheless, plaintiff here does not assert and cannot prove he detrimentally relied. This case does not present the occasion to formulate factors that may constitute detrimental reliance.

wages - FLSA pre-empts Art. III, sec. 24 of Pennsylvania Constitution

Council 13, AFSCME v. Commonwealth of Pennsylvania

Pennsylvania Supreme Court - December 28, 2009

majority - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-98-2009mo.pdf

consurring and dissenting opinion http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-98-2008codo.pdf

Article III, Section 24* of the Pennsylvania Constitution is preempted by the Fair Labor Standards Act of 1938, 29 U.S.C. § 206(a).

The governor is not prohibited from paying the wages of state employees who are covered by FLSA, but who are required to work from monies in the Commonwealth’s Treasury, where that money has not yet been appropriated by the General Assembly.

* Section 24 provides: No money shall be paid out of the treasury, except on appropriations made by law and on warrant issued by the proper officers; but cash refunds of taxes, licenses, fees, and other charges paid or collected, but not legally due, may be paid, as provided by law, without appropriation from the fund into which they were paid on warrant of the proper officer. PA. CONST. art. III, § 24.

contracts - attorney fees - reasonableness

McMullen v. Kutz - Supreme Court - December 28, 2009

majority opinion - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-93-2008mo.pdf

concurrence/dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-93-2008codo.pdf

dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-93-2008do.pdf

The parties entered into a marriage and property settlement agreement that provided for the payment of attorney fees and costs incurred by one party in enforcing the contract against the breaching party. The agreement did not specify that the fees had to be reasonable.

The dispute in this case concerns the trial court’s authority to address the reasonableness of the attorney fees claimed. Wife, and a minority of courts across the country, would read the plain language of the contract to require any and all fees incurred by the non-breaching party to be payable by the breaching party. We cannot accept this reading, however, because the potential for abuse is too high. If we were to forbid a reasonableness inquiry by a trial court, there would be no safety valve and courts would be required to award attorney fees even when such fees are clearly excessive.

Instead, we join the majority of our sister states n.3 in finding that parties may contract to provide for the breaching party to pay the attorney fees of the prevailing party in a breach of contract case, but that the trial court may consider whether the fees claimed to have been incurred are reasonable, and to reduce the fees claimed if appropriate. We hold that the trial court had the authority to consider the reasonableness of the attorney fees claimed. Accordingly, we affirm the decisions of the Superior Court and the trial court.

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

Footnote 3 - See, e.g., Alabama Educ. Ass’n v. Black, 752 So.2d 514, 519 (Ala. Civ. App. 1999) (“In Alabama, where there is an agreement to pay an attorney fee and the agreement does not speak specifically to the reasonableness of the fee, a “reasonable” fee will be inferred.”); McDowell Mountain Ranch Community Ass'n, Inc. v. Simons, 165 P.3d 667, 671 (Ariz. Ct. App. 2007) (collecting cases and stating: “Notwithstanding the general rule that attorneys' fees are enforced in accordance with the terms of a contract, a contractual provision providing for an award of unreasonable attorneys' fees will not be enforced.”); Griffin v. First Nat. Bank of Crossett, 888 S.W.2d 306, 311 (Ark. 1994) (“Implicit in our holding is a requirement that any attorney's fees awarded should be reasonable.”); Crest Plumbing and Heating Co. v. DiLoreto, 531 A.2d 177, 183 (Conn. App. Ct. 1987) (“We construe the term ‘attorney's fees’ as an award for ‘reasonable attorney's fees’ in this case because the term ‘reasonable’ is implied by law even when it is absent in the contractual provision.”) (emphasis in original); Mahani v. Edix Media Group, Inc., 935 A.2d 242, 245 - 246 (Del. 2007) (“Delaware law dictates that, in fee shifting cases, a judge determine[s] whether the fees requested are reasonable.”); Concord Enterprises, Inc. v. Binder, 710 A.2d 219, 225 (D.C. 1998) (“[W]here a contractual agreement expressly provides for the payment of attorney's fees, the trial court's discretion is limited to ascertaining what amount constitutes a ‘reasonable’ fee award.”); Dunn v. Sentry Ins., 462 So.2d 107, 108 (Fla. Dist. Ct. App. 1985) (holding that a prevailing party is not entitled to recover the total amount which it has paid or agreed to pay if that amount is excessive or unreasonable); Lettunich v. Lettunich, 111 P.3d 110, 120 (Idaho 2005) (providing for trial courts to consider several factors in arriving at a reasonable attorney fee calculation); Heller Financial, Inc. v. Johns- Byrne Co., 637 N.E.2d 1085, 1092 (Ill. App. Ct. 1994) (“While the parties may, by a private agreement, override the “American Rule” which holds that each will be responsible for any legal fees they incur in a civil litigation, such contractually-provided fees will be approved by the court only if they are reasonable.”); Walton v. Claybridge Homeowners Ass'n, Inc., 825 N.E.2d 818, 826 (Ind. Ct. App. 2005) (“Attorney fees awarded under a contract must be reasonable.”); Ales v. Anderson, Gabelmann, Lower & Whitlow, P.C., 728 N.W.2d 832, 842 (Iowa 2007) (“When a written contract allows for the recovery of attorney's fees, the award must be for reasonable attorney's fees.”); Hollenbach v. Holden, 728 So.2d 544, 551 (La. Ct. App.1999) (“[I]mplied within the attorney's fee provision of the contract is that the amount of attorney's fees to be determined to be due either party will be reasonable.”); Yim K. Cheung v. Wing Ki Wu, 919 A.2d 619, 625 (Me. 2007) (“As a general rule, courts must enforce contract provisions that require the payment of attorney fees, so long as they are reasonable.”); Myers v. Kayhoe, 892 A.2d 520, 532 (Md. 2006) (“Even in the absence of a contract term limiting recovery to reasonable fees, trial courts are required to read such a term into the contract and examine the prevailing party's fee request for reasonableness.”); Zeeland Farm Services, Inc. v. JBL Enterprises, Inc., 555 N.W.2d 733, 736 (Mich. Ct. App. 1996) (“[R]ecovery is limited to reasonable attorney fees.”); State Bank of Cokato v. Ziehwein, 510 N.W.2d 268, 270 (Minn. Ct. App. 1994) (“Where loan documents authorize a lender to recover legal expenses associated with collection, however, Minnesota courts will enforce the provision as long as the fees are reasonable.”); Belfer v. Merling, 730 A.2d 434, 443 (N.J. Super. Ct. App. Div. 1999) (“[A]ny fee arrangement is subject to judicial review as to its reasonableness.”); Robison v. Katz, 610 P.2d 201, 209 (N.M. Ct. App. 1980) (“It is clearly within the equitable power of the court to consider and reduce excessive fees.”); SO/Bluestar, LLC v. Canarsie Hotel Corp., 825 N.Y.S.2d 80, 81 - 82 (N.Y. App. Div. 2006) (“While the plaintiff was entitled to attorneys' fees pursuant to the Note, [a]n award of attorneys' fees pursuant to such a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered.”) (internal quotations omitted); Northwoods Condominium Owners' Ass’n v. Arnold, 770 N.E.2d 627, 630 - 631 (Ohio Ct. App. 2002) (“Under Ohio law, contractual provisions awarding attorney fees are enforceable and not void as against public policy so long as the fees awarded are fair, just, and reasonable as determined by the trial court upon full consideration of all the circumstances of the case.”); Benchmark Northwest, Inc. v. Sambhi, 83 P.3d 348, 349 (Or. Ct. App. 2004) (“The award is mandatory; the trial court has no discretion to deny it, although it does have discretion as to what amount is ‘reasonable.’”); South Carolina Elec. & Gas Co. v. Hartough, 654 S.E.2d 87, 91 (S.C. Ct. App. 2007) ( “When an award of attorney's fees is based upon a contract between the parties, the determination of the fees is left to the discretion of the trial court and will not be disturbed absent an abuse of discretion.”); Trayner v. Cushing, 688 P.2d 856, 858 (Utah 1984) (“Where the parties have agreed by contract to the payment of attorney fees, the court may award reasonable fees in accordance with the terms of the parties' agreement.”); Dewey v. Wentland, 38 P.3d 402, 420 (Wyo. 2002) (“Even in the face of a valid contractual provision for attorney's fees, we have clearly stated that a trial court has the discretion to exercise its equitable control to allow only such sum as is reasonable or the court may properly disallow attorney's fees altogether on the basis that such recovery would be inequitable.”

disability - obesity - evaluation of effect in combination with other impairments

Simmons v. Astrue - ED Pa. - December 28, 2009


http://www.paed.uscourts.gov/documents/opinions/09D1507P.pdf


The court ordered the case to be remanded (again) because of the ALJ's faiulure to provide a thorough explanation of the effects of the combination of plaintiff’s obesity with her other impairments.


SSR 02-1p (Titles II and XVI: Evaluation of Obesity) states that while the SSA deleted obesity from its listing of impairments in 1999, the SSA continued to ensure that obesity is addressed in the listings: “[W]e consider obesity to be a medically determinable impairment and remind adjudicators to consider its effects when evaluating disability. . . . [T]he combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately.”

SSR 02-1p further states that “[t]he effects of obesity may not be obvious. For example, some people with obesity also have sleep apnea. This can lead to drowsiness and lack of mental clarity.” SSR 02-1p makes clear that obesity is to be considered at steps 3, 4, and 5 of the sequential evaluation.

In the present case, the ALJ received specific instructions from the Appeals Council to provide an evaluation of the impact of Plaintiff’s obesity in accordance with SSR 02-1p. Thus, the ALJ was required to provide an explanation of how she considered Plaintiff’s obesity in combination with Plaintiff’s other severe impairments. Yet, the ALJ’s remand decision fails to do so. Indeed, all the ALJ did with respect to the Appeals Council’s instruction was provide a one-sentence conclusion stating her ultimate decision on the matter. The ALJ’s decision provides no reasoning, analysis, or explanation as to why Plaintiff’s obesity “does not increase the severity of claimant’s existing impairments.” Instead, the ALJ disposes of the obesity issue without providing any explanation. Therefore, the Court believes that the ALJ’s remand decision fails to follow the Appeals Council’s order to consider Plaintiff’s obesity in accordance with SSR 02-1p.

The ALJ’s use of one conclusory sentence to evaluate and analyze Plaintiff’s obesity in the written decision falls far short of the further evaluation required by the Appeals Council. Such a holding is in accordance with established case law from this district.

In Elam v. Astrue, 2009 WL 2779135 (E.D. Pa. Sept. 2, 2009), the court stated: “The ALJ must . . . engage in and document his or her analysis of the obesity in step three of the sequential analysis forward. This is especially imperative when assessing the impact of obesity on musculoskeletal, respiratory, and cardiovascular impairments like those at issue in this case.” Similarly, in Morris v. Barnhart, 2004 WL 1238397 (E.D. Pa. May 10, 2004), the court required a remand for essentially the same reason.

Similarly here, the ALJ failed to provide any analysis – thorough or otherwise – regarding the effect of the combination of Plaintiff’s obesity on her other impairments, as was specifically required by the Appeals Council when ordering remand. In the absence of any such analysis, the Court is unable to determine whether the ALJ’s decision is supported by substantial evidence. Therefore, as in both Elam and Morris, this case must be remanded to the ALJ.

juvenile record - expungement - 18 Pa. CS 9123 - "cause shown"

In the Interest of A.B. - Superior Court - December 24, 2009


http://origin-www.courts.state.pa.us/OpPosting/Superior/out/E05005_08.pdf

Appellant, A.B., appeals from the order entered in the Monroe County Court of Common Pleas, which denied his petition to expunge his juvenile record. Specifically, Appellant asks us to determine whether the court committed an error of law or an abuse of discretion when it denied Appellant’s petition, after he had fulfilled all of the requirements for expungement under 18 Pa.C.S.A. § 9123(a)(3), the Criminal History Record Information Act (“CHRIA”).

We hold the trial court misapplied the law in denying Appellant’s expungement petition, where Appellant fulfilled the requirements under Section 9123(a)(3); and the Commonwealth failed to show cause to deny expungement and retain Appellant’s juvenile record. Accordingly, we reverse and remand with directions to expunge Appellant’s juvenile recore.

The CHRIA states the court “shall” expunge a juvenile record where the petitioner meets the requirements of any subsection under Section 9123(a)(3), unless the Commonwealth successfully justifies retention of the juvenile record, otherwise stated as “except upon cause shown.” 18 Pa.C.S.A. § 9123(a)

The lower courts misconstrued the "cause shown" language by applying adult cases and criteria.

The lower court relied on a criminal drug statute, because the juvenile offense involved possession with intent to distribute. However, Appellant was not charged with,indicted for, or convicted of committing PWID or any other criminal offense. Rather, the juvenile court adjudicated Appellant delinquent on a juvenile offense. See 42 Pa.C.S.A. § 6354(a)...In relying on Section 780-119(a), the Commonwealth essentially treated Appellant’s juvenile adjudication as synonymous with a criminal record, which blurred the fundamental and material differences between the Juvenile Code and the Crimes Code.

The lower courts also improperly relied on the decision in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981), which applied its factors test only to the adult expungement petitions before that Court, and declined to extend that analysis to the juvenile expungement petition at issue in the case.

Appellant had no record before his adjudications, he was a juvenile at the time of the offense, and subsequently he is living a law-abiding life. When Appellant filed his expungement petition, he worked a steady job, resided with his mother, and attended community college. Thus, Appellant demonstrated the conditions necessary to reasonably assure his redemption, consistent with the criteria in Section 9123(a)(3). Further, we recognize there are numerous adverse consequences inherent in the existence of a juvenile record, including the elusive stigma attached to an adjudication of delinquency, which the expungement statute sought to eliminate. Id. Appellant met the statutory requirements for expungement; he had no additional burden to show specific adverse consequences suffered before relief could be granted. Given the remedial nature of Section 9123(a), Appellant was entitled to a liberal construction and application of the statute, while the “show cause” exception to the remedial provisions should have been narrowly construed against the Commonwealth as its proponent.

Appellant was entitled to expungement of his juvenile record as a matter of law, because he met the requirements under 18 Pa.C.S.A. § 9123(a)(3). Five (5) years elapsed since his final discharge from probation, he has not been convicted of a subsequent felony, misdemeanor or adjudication of delinquency, and no proceeding is pending seeking a conviction or adjudication. Appellant maintains he finished high school, works a steady job, takes courses at a community college, and has had no further encounters with the legal system since the one in 1999. Under the statute, he was entitled to have his record expunged.

UC - willful misconduct - lateness - child-care problems

Mount Airy Casino Resort v. UCBR - Cmwlth. Court - December 23, 2009 - unreported memorandum opinion


http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/791CD09_12-23-09.pdf


child care problems can be "good cause" for lateness or absence
The court affirmed the UCBR holding that the claimant, who was sometimes late for work because of child-care problems, was not guilty of willful misconduct because he had "good cause for his absences and late arrivals. An employee may be entitled to receive benefits despite the violation of a work rule if he can demonstrate “good cause for his actions.” Crawford v. UCBR, 455 A.2d 751, 752 (Pa. Cmwlth. 1983).

Even "excessive late arrivals or absences will not constitute willful misconduct if the employee has good cause for the absences or late arrivals and properly reports them. Gillespie v. UCBR, 523 A.2d 1205, 1207 (Pa. Cmwlth. 1987). The necessity of taking care of children can constitute good cause. Mulqueen v. UCBR, 543 A.2d 1286, 1288 (Pa. Cmwlth. 1988); King v. UCBR, 414 A.2d 452, 455 (Pa. Cmwlth. 1980).

voluntary quit v. termination due to child-care issues
In cases where a claimant voluntarily quits due to childcare issues, the court has required a showing that the claimant reasonably investigated options to obtain the necessary childcare prior to quitting. Shaffer v. UCBR, 928 A.2d 391, 394 (Pa. Cmwlth. 2007); Beachem v. UCBR, 760 A.2d 68, 71 (Pa. Cmwlth. 2000). The court appears to have applied a similar standard in determining whether a claimant had good cause for an absence that led to her termination in King, 414 A.2d at 455 (noting that the claimant’s “efforts to make child care arrangements with friends, neighbors, relatives and day care centers were more than reasonable”).


The court found, however, that "there is a qualitative difference between a claimant who quits due to childcare issues and one who is terminated despite attempting to continue working in good faith. Importantly, a claimant who decides to quit his employment due to childcare reasons is in control of when the employment relationship ultimately ends. Therefore, it is expected that such a claimant will make substantial efforts in searching for alternative childcare before he resorts to quitting due to a lack of childcare. [emphasis added]

On the other hand, where a claimant is discharged from his employment for absenteeism or tardiness, the claimant is not in control of when the employment relationship ends, and the claimant must operate under more limited time constraints that are dictated, in large part, by the employer." While a claimant with a child-care problem "is expected to make reasonable efforts to find alternative childcare before he may use lack of childcare to establish a good cause basis for being absent or tardy, he is not necessarily required to make the same efforts that would be needed to justify quitting due to a lack of childcare." [emphasis added]

In this case, the record supports a finding that the claimant made sufficient attempts to arrange for alternative childcare under the circumstances. It also showed the "employer’s own acknowledged unwillingness to work with Claimant to arrange a schedule that would accommodate Claimant’s childcare needs."

Therefore the court "agreed with the Board that, under the circumstances of this case, Claimant had good cause for his final late arrivals and these late arrivals do not, therefore, rise to the level of willful misconduct."

housing - sec. 8 - termination - grounds - notice by T of intent to move to new unit - no HA approval required

Cain v. Allegheny Co. Housing Authority - Cmwlth. Court - December 22, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2440CD08_12-22-09.pdf

Sec. 8 tenant properly gave the housing authority notice of the fact that she was moving out of her apartment and moving to another unit, pursuant to the HA's termination notice due to her failure to pay rent and a plumbing bill. The tenant was not required to get the HA's approval to do this and thus the HA's proposed termination of her sec. 8 benefits was not proper.

The applicable regulation, 24 C.F.R. §982.552, provides that:

(b) Requirement to deny admission or terminate assistance (2) The PHA [Public Housing Authority] must terminate program assistance for a family evicted from housing assisted under the program for serious violation of the lease…

(c) Authority to deny admission or terminate assistance. (1) Grounds for denial or termination of assistance. The PHA may at any time deny program assistance for an applicant, or terminate program assistance for a participant, for any of the following grounds: (i) If the family violates any family obligations under the program (see §982.551) See §982.553 concerning denial or termination of assistance for crime by family members…. (Emphasis added).

Also relevant is sec. 982.314, which governs when a tenant can move to a new unit, with continuing sec. 8 assistance. The grounds for denial under this section are the same as those set out in §982.552(c). The failure to obtain approval of a move is not an enumerated basis to terminate assistance.

We agree with Tenant and the decisions of our sister courts that the ACHA cannot expand the basis for terminating assistance by stating that failure to obtain approval prior to a move can result in that consequence. Hill v. Richardson, 740 F.Supp. 1393 (SD Ind. 1990), vacated and remanded, 7 F.3d 656 (7th Cir. Ind. 1993); Holly v. Housing Authority of New Orleans, 684 F.Supp. 1363 (ED La. 1988); Smith v. Hamilton County, 2007 Ohio 1725 (Ohio App. 1 Dist. 2007).

HEMAP - circumstances - voluntary hardship - financial overextension

Schrack v. PHFA - Cmwlth. Court - December 21, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/719CD09_12-21-09.pdf

A homeowner’s voluntary decision which results in financial hardship does not constitute circumstances beyond a homeowner’s control. Cullins v. PHFA, 623 A.2d 951, 953 (Pa. Cmwlth. 1993).

The record here shows that when the applicant refinanced her home in 2006 in order to rebuild it after a fire, her monthly expenses exceeded her net monthly income and continues to do so. The Agency determined that the applicant became financially overextended with the origination of the mortgage and has remained financially overextended since the mortgage origination, and thus that she was not suffering financial hardship due to circumstances beyond her control. Whatever hardship was suffering was due not to her being laid off from work but rather her overextending herself prior to her unemployment.

Her contention that she would be employed soon, as would her fiancé, "cannot be the basis for the agency’s determination, as both contentions are speculative." The Agency is bound to evaluate a petitioner’s eligibility on the basis of her actual income history. Cullins. The Agency here properly considered petitioner’s only source of guaranteed income, unemployment benefits.

"As Petitioner’s income had been, and continued to be, inadequate to support her total housing expense, we conclude that the Agency was correct in determining that Appellant’s financial situation was simply the result of long term financial difficulties and not the emergency situation contemplated by Act 91."

UC - reopening of hearing - good cause

Motley v. UCBR - Cmwlth. Court - December 16, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/426CD09_12-16-09.pdf

Claimant did not show good cause for missing her UC hearing under 34 Pa. Code 101.24(a), which says that

If a party who did not attend a scheduled hearing subsequently gives written notice, which is received by the tribunal prior to the release of a decision, and it is determined by the tribunal that his failure to attend the hearing was for reasons which constitute ‘proper cause,’ the case shall be reopened. 34 Pa. Code §101.24(a) (“Reopening of hearing”).

If the Board determines that a claimant did not have proper cause for failing to attend the referee’s hearing, then it must issue a decision based on the evidence developed in the claimant’s absence. Ortiz v. UCBR, 481 A.2d 1383 (Pa. Cmwlth. 1984).

In determining whether a claimant had proper cause for failing to attend a referee’s hearing, the Court in Savage v. UCBR, 491 A.2d 947, 950 (Pa. Cmwlth. 1985), concluded “a claimant's own negligence is insufficient ‘proper cause,’ as a matter of law, to justify his failure to appear at a referee's hearing ….”

The Court concluded here that it was the claimant’s own negligence that caused her failure to appear, and that her negligence was insufficient proper cause. The claimant testified that she had become lost and couldn't find the hearing office. The Board and court felt that she should have made more effort to find the hearing locations, including taking a test trip prior to the hearing.

admin. law - appeal - final adjudication

NHS Human Services v. DPW - December 8, 2009 - Commonwealth Court

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/347CD09_12-8-09.pdf

In holding a warning was not a final adjudiction under the Administrative Agency Law, 2 Pa. C.S. §§ 501-508, 701-704, the Court said that an "An adjudication is defined as 'Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities, or obligations of any or all of the parties to the proceeding in which the adjudication is made.' 2 Pa. C.S. §101.

A letter or an email message can constitute an adjudication, requiring notice and a hearing, if a two-prong test is met: 1) the letter must be an agency’s final order, decree, decision, determination or ruling; and 2) it must impact on a party’s personal or property rights, privileges, immunities, duties, liabilities or obligations. Guthrie v. Borough of Wilkinsburg, 505 Pa. 249, 478 A.2d 1279 (1984), Benson Lincoln Mercury, Inc. v. DOT, 602 A.2d 496 (Pa. Cmwlth. 1992), and Fiore v. DER, 510 A.2d 880 (Pa. Cmwlth. 1986).

UC - voluntary quit - racial discrimination

Atlas Machining and Welding v. UCBR - December 8, 2009 - Cmwlth. Court - unreported memorandum opinion


http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/651CD09_12-8-09.pdf


The court affirmed a Board decision finding that an African-American claimant had good cause to quit because of racial harassment, including racial slurs by a co-worker and foreman and several instances of his finding a rope fashioned in the shape of a noose.


"There is no question that racial discrimination may constitute necessitous and compelling cause to terminate one’s employment. Taylor; Brown v. UCBR, 780 A.2d 885 (Pa. Cmwlth. 2001); McIntyre v. UCBR, 420 A.2d 34 (Pa. Cmwlth. 1980); Watts v. UCBR, 410 A.2d 976 (Pa. Cmwlth. 1980)."

Given the employer's "ineffectual" attempts to address these problems, it would have been futile for claimant to pursue things further with the employer. Claimant thus had good cause to quit.

housing - code enforcement - illegal search - civil rights

Ciarlone v. City of Reading - ED Pa - November 18, 2009

http://www.paed.uscourts.gov/documents/opinions/09d1382p.pdf

Apartment owner and several tenants brought sec. 1983 action against city, code enforcement officer, et al. for unlawful inspection of premises by forced actions -- including breaking into apartments with sledge hammer -- without any warrant or notice to owner or tenants.

Defendants' motion to dismiss was rejected by the court, which held that plaintiffs had pleaded sufficient facts concerning a) the constitutionality of the search, b) the city's failure educate and train code enforcement officers, c) due process claims. and d) first amendment retaliation (plaintiff owner had publicly and repeatedly spoken out against the city code enforcement department) to survive a 12(b)(6) motion to dismiss.

consumer - natl. banks - gift card - state UDAP claims - no pre-emption

Mwantembe, et al. v. TD Bank, et al. - ED PA - November 17, 2009

http://www.paed.uscourts.gov/documents/opinions/09d1375p.pdf

Plaintiff brought class action on behalf of Pennsylvania residents who held or hold gift cards sold by the defendants, assert causes of action under Pennsylvania law for violations of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201-2(3), 201-2(4)(xxi), 201-3, breach of contract and third party beneficiary.

They allege that the defendants’ deducting undisclosed dormancy and other fees that diminish the value of the gift cards before their expiration is “deceptive, unlawful, and misleading,” and is calculatedto “trick, mislead, and significantly confuse consumers in Pennsylvania into not retaining or claiming the full value and buying power” of the cards.

The plaintiffs allege that the defendant banks marketed and sold the gift cards without adequately disclosing the cards’ material terms and conditions to purchasers and recipients. They also claim that prior to purchase, the defendants’ representatives never discussed or otherwise disclosed to purchasers the imposition of dormancy and replacement fees, or issue dates and expiration dates.

The question is whether state law imposing disclosure and marketing requirements for gift cards prevents or significantly interferes with the national banks’ activity or the federal regulator’s exercise of its powers.

Because enforcing state consumer protection laws regarding the disclosures does not conflict with federal law governing gift cards and will not unduly impair the defendants banks’ ability to engage in the business of selling gift cards, we hold that the plaintiffs’ state law claims are not preempted.