UC - willful misconduct - threat to harm co-worker

Ball v. UCBR - Cmwlth. Court - April 21, 2010 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1911CD09_4-21-10.pdf

“[T]hreats of harm toward a supervisor or a coworker constitute conduct below the standards of behavior which an employer has a right to expect from an employee.” Sheets v. UCBR, 708 A.2d 884, 885 (Pa. Cmwlth. 1998). Moreover, a willful misconduct determination may be based on an employee’s verbal threat of harm even if no physical altercation ensues. See, e.g., Rodites v. UCBR, 382 A.2d 1287, 1287-88 (Pa. Cmwlth. 1978) (finding willful misconduct where employee, during heated exchange with councilman, “offered to take the councilman outside”); Wilson v. UCBR, 325 A.2d 500, 501 (Pa. Cmwlth. 1974) (finding willful misconduct where employee told co-worker that his manager “should get off [his] back or [he] would ship him out of there in a plastic bag” and weapons were later discovered in employee’s car); Zondler v. UCBR, 175 A.2d 149, 149-50 (Pa. Super. 1961) (finding willful misconduct where employee held pencil close to co-worker’s face and made stabbing motions, frightening co-worker).5

5 But see Blount v. UCBR, 466 A.2d 771 (Pa. Cmwlth. 1983) (concluding employee’s remark about bomb threat did not rise to level of willful misconduct where remark was made off-handedly and there was no indication he was capable of carrying out such threat).

appeal - timeliness - collateral errors

Brown v. Levy - Commonwealth Court - April 21, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2221CD09_4-21-10.pdf


It was error for the prothonotary to refuse to accept a timely appeal because of collateral errors, including the failure to attach the case’s docket entries, provide the requisite number of copies, and provide a certificate of service indicating service upon the trial judge.


The court held that the prothonotary erred by not accepting the notice of appeal, applying the standard in Pennsylvania Rule of Appellate Procedure 902, which provides:

An appeal permitted by law as of right from a lower court to an appellate court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 903 (time for appeal). Failure of an appellant to take any step other than the timely filing of a notice of an appeal does not affect the validity of the appeal, but it is subject to such action as the appellate court deems appropriate, which may include, but is not limited to, remand of the matter to the lower court so that the omitted procedural step may be taken. (Emphasis added.)

In Lowrey v. East Pikeland Township, 562 A.2d 1010 (Pa. Cmwlth. 1989), the court held that a prothonotary who refused to time-stamp a timely filed appeal that omitted the case number committed an abuse of discretion and violated Rule 902 because the failure to include the case number did not affect the validity of the appeal. Likewise, in Department of Transportation v. Florek, 455 A.2d 1263 (Pa. Cmwlth. 1983), it held that a notice of appeal with various unnamed defects that was timely filed did not affect the validity of the appeal.

Here, it is undisputed that Petitioner timely filed a notice of appeal. As timeliness is the only requirement to make a notice of appeal valid, Petitioner’s first attempt to file a notice of appeal was indeed a valid notice of appeal, and the Prothonotary committed an abuse of discretion by sending the notice of appeal back to Petitioner rather than accepting it. It was, therefore, unnecessary for Petitioner to file a petition for leave to appeal nunc pro tunc because his appeal was indeed timely.

misrepresentation - tort v. contract - gist of the action doctrine

Pediatrix Screening, Inc. v. Telechem Internation, Inc. - 3d Cir. - April 20, 2010

http://www.ca3.uscourts.gov/opinarch/081391p.pdf


The Pennsylvania Superior Court has “operated under the assumption that the gist of the action doctrine is a viable doctrine that will eventually be explicitly adopted by [the] state’s High Court.” Reardon v. Allegheny Coll., 926 A.2d 477, 486 (Pa. Super. Ct. 2007). The 3d Circuit has embraced that view as well. Bohler-Uddeholm, 247 F.3d at 103-04.


The gist of the action “doctrine is designed to maintain the conceptual distinction between breach of contract claims and tort claims. As a practical matter, the doctrine precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” eToll, Inc. v. Elias/Savon Adver., Inc., 811 A.2d 10, 14 (Pa. Super. Ct. 2002) (citation omitted). In some circumstances, “it is possible that a breach of contract also gives rise to an actionable tort[.] To be construed as in tort, however, the wrong ascribed to defendant must be the gist of the action, the contract being collateral.” Id. (alteration in original) (quoting Bash v. Bell Tel. Co., 601 A.2d 825, 829 (Pa. Super. Ct. 1992)). That the misconduct was fraudulent does not bar application of the gist of the action principle. Werwinski v. Ford Motor Co., 286 F.3d 661, 681 (3d Cir. 2002).


The Superior Court has held that fraud claims should be barred where they arose during the course of the parties’ contractual relationship; where the allegedly fraudulent acts also were breaches of duties “created and grounded in the . . . contract[;]” and where the damages “would be compensable in an ordinary contract action[ and] thus, the claim would essentially duplicate a breach of contract action.” eToll, Inc., 811 A.2d at 20-21. Where fraud claims are “inextricably intertwined” with the contract claims, the gist of the action is contractual, and the fraud claim should be dismissed. Id. at 21.


The test has been discussed in other cases as well, including Hart v. Arnold, 884 A.2d 316, 341 (Pa. Super. Ct. 2005) (dismissing fraud-in-the-performance claim because it “essentially duplicate[d] . . . breach of contract claim and [its] success . . . [wa]s wholly dependent on the terms of a contract”), and Pittsburgh Construction Co. v. Griffith, 834 A.2d 572, 584 (Pa. Super. Ct. 2003) (vacating award for conversion on gist of the action grounds where “tort and breach of contract claims [were] inextricably intertwined, the success of the conversion claim depending entirely on the obligations as defined by the contract”). Compare Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 719 (Pa. Super. Ct. 2005) (separate fraud claim not barred when defendant “fraudulently . . . agreed to perform obligations that it never intended to perform in order to induce” plaintiff into entering into contract).

UC - voluntary quit - religious beliefs

Calhoun Jewelers LLC v. UCBR - April 20, 2010 - unpublished memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/2081CD09_4-20-10.pdf


The court reversed the grant of benefits to a claimant, who quit her job because of a conflict with her beliefs as a Jehovah's Witness, because she did not explain how the employer's instructions--to prepare a template for birthday cards to be sent to the employer's clients--violated her religious beliefs.


In Monroe v. UCBR, 535 A.2d 1222 (Pa. Cmwlth. 1988), this Court addressed the framework for a determination as to whether sincerely held religious beliefs conflict with job duties: The First Amendment right to the free exercise of religion applies to a sincerely held religious belief, and we do not believe that this right is limited only to beliefs held by members of established religions. . . . Accordingly, an actual conflict between one’s sincerely held religious beliefs and his or her employment conditions may constitute cause of a necessitous and compelling nature for voluntarily terminating employment. . . . .If it is determined that beliefs are sincerely held, then it must also be established that those beliefs are religious in nature. . . . . Monroe, 535 A.2d at 1224-1225.


Here, it is undisputed that Claimant was a Jehovah’s Witness. Claimant explained at the hearing before the referee that she believed that “many of the origins of birthdays are linked with false worship, even such things as birthday greetings, as happy birthday are linked with false worship of gods.” A church elder testified regarding the tenets of this religion concerning birthdays. There was no error in the determination that Claimant was a Jehovah’s Witness and, as a Jehovah’s Witness, she had sincerely held beliefs concerning the celebration of birthdays.


However, claimant did not establish that those sincerely held religious beliefs were in conflict with her employment conditions. It is Claimant’s burden to demonstrate that she had a necessitous and compelling reason for quitting her employment based on her sincerely held religious beliefs. Claimant established that she had sincerely held religious beliefs. However, the Board erred when it determined that the writing of a “personal message” on a birthday card violated Claimant’s religious beliefs when Claimant failed to describe the “personal message.” Claimant had the opportunity to articulate what the message was that she was instructed to write and to establish how that violated her religion, but she failed to do so.

attachment/garnishment - exempt property - court rules

Posted Today! In Re: Amendment of Rules 3111, 3111.1, 3140, 3141, 3252 and 3253 of the Pennsylvania Rules of Civil Procedure, No. 523 Civil Procedural Rules Docket
Opinion By: per curiam
Posted By: W.D. Prothonotary
	Date Rendered: 4/16/2010
	Date Posted: 4/19/2010
	Opinion Type: Rules	523civ.pdf
	Date Rendered: 4/16/2010
	Date Posted: 4/19/2010
	Opinion Type: Rules	523civ.attach.pdf
	Date Rendered: 4/16/2010
	Date Posted: 4/19/2010
	Opinion Type: Rules	523civ.rpt.pdf

Rule 3111. Service of the Writ on Garnishee. Effect

(a) * * *

(b) * * *

Note: For limitations on the power to attach tangible personal property see Rule 3108(a).

See Rule 3111.1 providing that service of the writ does not attach [the defendant’s funds on deposit in a bank or other financial institution in an account in which funds are deposited electronically on a recurring basis and are identified as funds which upon deposit are exempt from attachment] the first $10,000 of each account of the defendant in which any funds are deposited electronically on a recurring basis and are identified as funds that upon deposit are exempt from attachment, or each account of the defendant in which funds on deposit exceed $10,000 at any time, if all funds are deposited electronically on a recurring basis and are identified as being funds that upon deposit are exempt from attachment.

* * *

Explanatory Comment

New Rule 3111.1 was promulgated in 2007 to address the failure of the rules of civil procedure to protect funds held in accounts of banks and other financial institutions that are exempt from execution, levy, and attachment pursuant to federal and state legislation. The current rule protects from attachment all funds in an account in which any funds are deposited electronically on a recurring basis and are identified as being funds that upon deposit are exempt from execution, levy, or attachment. The amendment to subdivision (1) of Rule 3111.1 provides that only the first $10,000 held in an account may not be attached whenever the account includes any funds that are identified as being exempt from execution, levy, or attachment. If an account holder believes the remainder is also exempt, he or she may petition the court for relief. Under new subdivision (2) any funds that exceed $10,000 in an account may be attached unless all funds in the account are identified as exempt funds.

By the Civil Procedural Rules Committee

Stewart L. Kurtz

Chair

immigration - cancellation of removal - Special Rule for Battered Spouses

Johnson v. Attorney General - 3d Cir. - April 16, 2010


http://www.ca3.uscourts.gov/opinarch/072820p.pdf


Petitioner's claim for cancellation of removal under the Special Rule for Battered Spouses, 8 U.S.C. § 1229b(b)(2), denied by immigration judge, affirmed on appeal. Petitioner offered no evidence of having been battered, claiming only that she had made baseless allegations against him and denied him access to their child. Rather, it was his citizen-wife who got a PFA order.


The SRBS could be useful to our abuse clients in other circumstances. Section 1229b(b)(2), titled the “Special rule for battered spouse or child,” allows the Attorney General to cancel removal of a deportable alien if the alien meets five threshold requirements:

(i) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen . . . ;

(ii) the alien has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application . . . ;

(iii) the alien has been a person of good moral character during such period . . . ;

(iv) the alien is not inadmissible under paragraph (2) or (3) of section 1182(a) of this title, is not deportable under paragraphs (1)(G) or (2) through (4) of section 1227(a) of this title, subject to paragraph (5), and has not been convicted of an aggravated felony; and

(v) the removal would result in extreme hardship to the alien, the alien’s child, or the alien’s parent. 8 U.S.C. § 1229b(b)(2)(A)(i)-(v) (2006).

UC - self-employment - sideline activity

Lamoreaux v. UCBR - April 14, 2010 - unpublished memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/1312CD09_4-14-10.pdf


Claimant was found ineligible under 43 P.S. § 802(h), the sideline business exception, under which: "an employe who is able and available for full-time work shall be deemed not engaged in self-employment by reason of continued participation without substantial change during a period of unemployment in any activity including farming operations undertaken while customarily employed by an employer in full-time work whether or not such work is in “employment” as defined in this act and continued subsequent to separation from such work when such activity is not engaged in as a primary source of livelihood."


The court has found claimants engaged in self-employment eligible for benefits, if: 1) the self-employment began prior to the termination of the employe's full-time employment; 2) the self-employment continued without substantial change after the termination; 3) the employe remained available for full-time employment; and 4) the self-employment was not the primary source of the employe's livelihood. O’Hara v. UCBR, 648 A.2d 1311 (Pa. Cmwlth. 1994); see LaChance v. UCBR, 987 A.2d 167 (Pa. Cmwlth. 2009). The claimant has the burden of proving all the elements of this exception. O’Hara, 648 A.2d 1311.


Claimant was held to have failed to satisfy the 4th element, that the self-employment was not the primary source of her livelihood. She did not provide "adequate financial information to compare income from self-employment with income from other employment..." Parente v. UCBR, 366 A.2d 629 (Pa. Cmwlth. 1976). In this case, the Board correctly concluded that there was not adequate information to determine her primary source of income because there was no evidence of her self-employment earnings for the second half of 2008. In addition, her testimony as to her earnings was found not to be credible. By not providing documentary evidence of her earnings, claimant failed to meet her burden to prove that her self-employment was not the primary source of her livelihood, and therefore the Board was correct to deny benefits.

employment - ADA - effects of medication

Sulima v. Dept. of the Army - 3d Circuit - April 12, 2010


http://www.ca3.uscourts.gov/opinarch/084684p.pdf

A “disability” under the ADA can encompass an impairment resulting solely from the side effects of medication, whether or not the underlying health problems are disabling, following the decision of the 7th Circuit, which and held that these side effects may, under certain conditions, constitute a disabling impairment under the ADA. See Christian v. St. Anthony Med. Ctr., 117 F.3d 1051, 1051-52 (7th Cir. 1997).

The District Court here adopted the reasoning of the Seventh Circuit, but found that the side effects experienced by plaintiff did not constitute a disabling impairment, because he did not satisfy his burden under the Christian standard, which recognized as disabling the effects of a treatment for a condition that is not itself disabling, as long as the plaintiff can show that (1) the treatment is required “in the prudent judgment of the medical profession,” (2) the treatment is not just an “attractive option,” and (3) that the treatment is not required solely in anticipation of an impairment resulting from the plaintiff’s voluntary choices. Christian, 117 F.3d at 1052.

The lower court assumed, arguendo, that plaintiff had adequately shown that the medication’s side effects actually constituted a substantial limitation on a major life activity, but even so found that plaintiff was not disabled, because the medications were not “medically necessary," because plaintiff's doctor discontinued the medication after he was made aware of the problematic side effects. There was no contrary evidence to rebut the evidence that the medication was not required “in the prudent judgment of the medical profession,” as required by the Christian test. Christian, 117 F.3d at 1052. In addition, the two-month period between the side effects beginning and the doctor discontinuing the medications — assuming they could be deemed medically necessary during that time — was not a long enough duration to qualify for “disability” under the ADA.

employment - state civil service - discrimination - pleading - specificity

Allen v. State Civil Service Commission - Cmwlth. Court - April 7, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1731CD09_4-7-10.pdf


The court held that the Petitioner failed to meet the pleading requirement of “specificity” for filing a SCSC Appeal Request Form as required by Section 105.12(c) of the Civil Service Rules, in that she merely proclaimed race and disability discrimination through general and conclusory allegations which are insufficient as a matter of law. She did not and could not, “identify acts/facts” that would indicate disparate treatment because of her race, and did not “identify acts/facts” that would indicate a failure to provide a reasonable accommodation for a known disability (a disability which is still, yet to be identified and determined).


The regulation requires that "Appeals alleging discrimination which do not include specific facts related to discrimination may be dismissed. Specific facts which should appear on the appeal form include: (1) The acts complained of. (2) How the treatment differs from treatment of others similarly situated. (3) When the acts occurred. (4) When and how the appellant first became aware of the alleged discrimination. 4 Pa. Code § 105.12(c) (emphasis added)."


The court has held that: "The burden of prosecuting such an appeal [(i.e., an appeal based on discrimination)] rests with the employee. The underlying factual basis of the claimed discrimination must be enumerated specifically. Discrimination cannot be inferred; there must be affirmative factual support to sustain the allegations. . . . Thus, [this Court] must determine whether the Appellant’s appeals stated sufficient facts to establish a claim. Keim v. Dep’t of Health, 543 A.2d 1261, 1264 (Pa. Cmwlth. 1988) (citations omitted; emphasis added)." See also, Craig v. State Civil Service Commission, 800 A.2d 364 (Pa. Cmwlth. 2002).

food stamps - service dog; notice

Douris v. DPW - Commonwealth Court - April 6, 2010 - unpublished memorandum opinion.


http://www.pacourts.us/OpPosting/Cwealth/out/1377CD09_4-6-10.pdf


service dog cannot be a household member
This Court is sympathetic to Petitioner’s argument that his service dog is a necessity for him due to his disability, and that he lacks the funds to properly feed his service dog. We hope that there is some other state or federal program that might provide for the maintenance and upkeep of Petitioner’s service dog, and that the Department or the CAO would be able to work with Petitioner in finding such a program. However, it is unambiguously clear from the provisions cited above that food stamp benefits are intended for humans only.


inadequate notice was harmless error
We now turn to Petitioner’s argument that the Department violated the ADA at 42 U.S.C. § 12132 and USDA regulations at 7 C.F.R. §§ 272.6(a), 273.15(p)(1), by failing to provide him with copies of the documents to be introduced at his hearing before the ALJ in a typeface large enough for him to read.

It is extremely troubling that the Department was either unable or unwilling to provide Petitioner with larger-format copies of the documents to be introduced at his hearing. However, even assuming this conduct denied Petitioner his right to due process, in this case, it amounts to harmless error....[A]fter reviewing the record, as well as the law cited above, this Court is convinced that even with full and complete access to the documents to be introduced at the hearing, there is no argument Petitioner could have made that would have resulted in a favorable decision for him.

consumer - credit reporting agency - FCRA

Payne v. TransUnion LLC - ED Pa. - March 31, 2010

http://www.paed.uscourts.gov/documents/opinions/10D0329P.pdf


The court rejected the defendant's argument that it is not a credit reporting agency, pending further discovery and development of the record.

For an entity to be a CRA, (1) it must act in exchange for compensation; (2) it must regularly assemble or evaluate information on consumers; (3) its purpose in evaluating this information must be to furnish consumer reports; and (4) it must utilize interstate commerce in the preparation or furnishing of the consumer report. Knechtel, 2009 WL 4123275, at *3 (citing Lewis v. Ohio Prof’l Elec. Network LLC, 190 F. Supp. 2d 1049, 1056 (S.D. Ohio 2002)). Defendants argue that (1) Plaintiff has not adequately alleged that Defendants assemble and evaluate information on consumers, and that (2) Plaintiff has not adequately alleged that Defendants disseminated a “consumer report.”

Courts have found that the term “assemble or evaluate” “implies a function which involves more than receipt and retransmission of information identifying a particular debt.” ... Merely sending or conveying documents regarding consumer debts to CRAs does not constitute “assembling or evaluating” consumer credit information under the FCRA. Ori v. Fifth Third Bank, 603 F. Supp. 2d 1171, 1175 (E.D. Wis. 2009) (citing DiGianni v. Stern’s, 26 F.3d 346, 349 (2d Cir. 1994)).

In Marricone, Judge Brody of this Court rejected arguments identical to those offered by Defendants here. See Marricone, 2009 WL 3245417, at *1. Judge Brody concluded that

[t]he definition of a consumer reporting agency in 15 U.S.C. § 1681a(f) is fairly broad, and the language of the statute as well as relevant case law demonstrate that whether an entity is acting as a consumer reporting agency in a particular situation is a fact-specific inquiry. While credit bureaus such as Equifax may be the paradigmatic CRAs, the term can extend beyond such entities. See, e.g.,Williams v. LexisNexis Risk Mgmt. Inc., 2007 U.S. Dist. LEXIS 62193, *4 (E.D. Va. 2007); Lewis v. Ohio Prof’l Elec. Network LLC, 190 F. Supp. 2d 1049, 1061 (S.D. Ohio 2002). Thus factual discovery will help determine whether Defendants acted as CRAs in this case. Absent binding case law holding that Lexis and Reed are not CRAs as a matter of law, Plaintiff’s allegations that Defendants operated as CRAs survives a 12(b)(6) motion to dismiss.

Id. Judge Brody denied the motion to dismiss the FCRA claims without prejudice to Defendants to reassert their arguments after the facts had been fleshed out in discovery. In Breslin, Judge McLaughlin of this Court in deciding an identical motion to dismiss agreed with Judge Brody, concluding that her resolution was “thorough and well reasoned.” See Breslin, No. 08-2236 (E.D. Pa. Oct. 21, 2009).

We agree with the approach taken by Judge Brody and Judge McLaughlin. The determination of whether Defendants are CRAs is a fact-specific inquiry. Discovery will be of assistance in reaching the ultimate determination.

Plaintiff's current allegations are sufficient to permit a reasonable inference that in exchange for compensation Defendants assembled and evaluated information on consumers bearing on their creditworthiness for third parties and that they used facilities of interstate commerce to furnish their reports. These allegations are sufficient to permit further discovery on the issue.

attorney fees - EAJA - "substantially justified"

Williams v. Astrue - 3d Cir. - April 2, 2010


http://www.ca3.uscourts.gov/opinarch/091471p.pdf


The government's position was found to be substantially justified when the "District Court found just one error with the ALJ’s decision and that particular error is inconsequential, as the ALJ had the ability to reach the same conclusion on remand based on other evidence in the record."


This opinion was published on the Commissioner's motion http://www.ca3.uscourts.gov/opinarch/091471po.pdf

real property - specific performance - agreement to agree - essential terms

Trowbridge v. McCaigue - Superior Court - March 26, 2010

http://www.pacourts.us/OpPosting/Superior/out/a30010_09.pdf

In the instant case, the trial court found that the signed Purchase Offer (hereinafter “Agreement”), was an “agreement to agree” and that “no express contract ever existed between” Appellant and Appellees. The court’s decision was based on that part of the Agreement that states that if the Appellees accept this offer, then the parties would “enter into a sales agreement.”

“The Statute of Frauds instructs that a purported transfer of an ownership interest in real property is not enforceable unless evidenced in writing and signed by the party(ies) granting the interest.” Long v. Brown, 582 A.2d 359, 361 (Pa. Super. 1990) (citing 33 P.S. § 1). “A writing required by the Statute of Frauds need only include an adequate description of the property, a recital of the consideration and the signature of the party to be charged.” Hessenthaler v. Farzin, 564 A.2d 990, 994 (Pa. Super. 1989).

The essential terms required to satisfy the Statute of Frauds are present in the Agreement signed by Appellant and Appellees. While the trial court acknowledges this, it concluded that the Agreement was nonetheless not a contract because it indicated “an intention of the parties to come to an agreement at a later time.” In so holding the court relied on Highland Sewer and Water Authority v. Forest Hills Mun. Authority, 797 A.2d 385 (Pa. Cmwlth. 2002), wherein the court stated, “An agreement to agree is incapable of enforcement, especially when it is stipulated that the proposed compact shall be mutually agreeable.” Id. at 390 (quotation marks omitted). However, in Highland, the court specifically held that the trial court did not err in concluding that no express contract arose from the parties’ conduct because they had “indicated an intention to agree upon essential terms in the future.” Id. (emphasis added).

In contrast, the Agreement here does not indicate an intention to agree upon any essential terms in the future. In fact, contrary to the trial court’s assertion, the Agreement does not imply that there was anything left to agree upon in the future. Rather, the only future occurrence contemplated by the Agreement is the execution of a sales agreement. “An agreement to make and execute a certain written agreement, the terms of which are mutually understood and agreed on, is in all respects as valid and obligatory as the written contract itself would be if executed.” Mastroni-Mucker v. Allstate Ins. Co., 976 A.2d 510, 523 (Pa. Super. 2009). Field v. Golden Triangle Broadcasting, Inc., 305 A.2d 689, 693 (Pa. 1973); GMH Associates v. Prudential Realty Group, 752 A.2d 889 (Pa. Super. 2000); Wang v. Whitetail Mountain Resort, 933 A.2d 110, 112-13 (Pa. Super. 2007).

employment - nurse - ARD - felony

Spence v. Bureau of Prof. and Occup. Affairs - Cmwlth. Court - March 22, 2010 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1692CD09_3-22-10.pdf


The court upheld the BPOA's imposition of a 3-year suspension and 2-year probationary period of a nurse who entered and completed an ARD program involving a 3d degree felony of theft by unlawful taking -- $10,000 - while she was treasurer of a PTO.


The penalty was based on 63 P.S. §224(a)(5) (emphasis added), predicated on a licensee who "has been convicted, or has pleaded guilty, or entered a plea of nolo contendere, or has been found guilty by a judge or jury, of a felony or a crime of moral turpitude, or has received probation without verdict, disposition in lieu of trial or an Accelerated Rehabilitative Disposition in the disposition of felony charges, in the courts of this Commonwealth, the United States or any other state, territory, possession or country." (emphasis added)


The court applied an abuse of discretion standard "defined as a misapplication of the law, a manifestly unreasonable exercise in judgment, or a final result that evidences partiality, prejudice, bias, or ill-will. Allegheny County v. Golf Resort, Inc., 974 A.2d 1242 (Pa. Cmwlth. 2009); Pastorius v. State Real Estate Commission, 466 A.2d 780 (Pa. Cmwlth. 1983). When reviewing the exercise of discretion by an administrative agency, this Court may not, in the absence of bad faith, fraud, capricious action or abuse of power, inquire into the wisdom of the agency's action or into the details or manner of executing agency action.


The bureau and court rejected the argument that the felony did not related to nursing. The "statute does not distinguish between felonies that relate to the practice of nursing and those that do not. Furthermore, the Board’s regulations recognize the importance of trustworthiness in the nursing profession.


It also rejected the argument that her successful completion of ARD should make a difference. Even where criminal charges are resolved in favor of a defendant, an agency may initiate administrative proceedings against the person concerning the same underlying misconduct. Spence v. Pennsylvania Game Commission, 850 A.2d 821 (Pa. Cmwlth. 2004).

UC - willful misconduct - offensive comments

Sadler v. UCBR - Marcy 24, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1800CD09_3-24-10.pdf


Held, library director engaged in willful misconduct when, at a work meeting with other librarians, expressed happines at death of former director by stating that she was happy that the former director died, acted like she was excited, and yelled “yeehaw” in celebration. Later on, during a meeting break but in the presence of the others, she said to another librarian, “Ding dong, the witch is dead,” quoting from the Wizard of Oz song."


For insensitive comments to rise to the level of willful misconduct in cases, such as here, where the Employer has no specific policy governing standards of behavior, they must be of such a character that the speaker knew or intended, or that any reasonable person would have known, that the comments were offensive or inappropriate under the circumstances. Poplin v. UCBR, 690 A.2d 781 (Pa. Cmwlth. 1997). The burden of proof is on the employer to prove allegations of willful misconduct. Phoenixville Area School District v. UCBR, 596 A.2d 889 (Pa. Cmwlth. 1991).
Whether an offensive comment rises to the level of willful misconduct is highly fact-specific.

In Witkowski v. UCBR, 633 A.2d 1259 (Pa. Cmwlth. 1993), we held that a white employee who told two black employees that their employer was “working me like a n----r” committed willful misconduct, while in Poplin, 690 A.2d 781, we held that a white employee who referenced the Ku Klux Klan in the presence of a black employee and then asked the black employee if he wished he were white did not engage in willful misconduct.


In McCall v. UCBR, 717 A.2d 623 (Pa. Cmwlth. 1998), we held that an employee of a business school who was responsible for acquisition and maintenance of a city contract to train persons on welfare engaged in willful misconduct when she questioned whether the program taught students moral values about bearing children out of wedlock and then stated that she “strongly objects to supporting whores on welfare.”


On the other hand, in Gallagher v. UCBR, 388 A.2d 785 (Pa. Cmwlth. 1978), we held that a bartender who called his boss’ girlfriend a “bitch” while at the bar on his day off from work did not engage in willful misconduct because the claimant’s comment was not connected with his work.


Gallagher is most similar to this appeal, but with the important distinction that the claimant in Gallagher was physically present at his place of employment, he was not actually working when he called his employer’s girlfriend a bitch while, here, Claimant was participating in a business meeting at the time of her comments. If Claimant had walked into her library to check out a book on a day she was not working and exclaimed “yeehaw” and “ding dong, the witch is dead” upon hearing of the death of her former director, her comments, while crass, would not have risen to the level of willful misconduct. However, because she was attending a business meeting at the time of her comments and, in fact, interrupted the meeting to express her unabashed pleasure at the news, her conduct was qualitatively different and crossed the line from crassness to willful misconduct. As Claimant acknowledged, it was offensive and inappropriate to express such demonstrative joy over the death of a former supervisor at a business meeting filled with people who knew the deceased and had just learned of her death.

UC - self-employment - sideline activity

LaChance v. UCBR - Cmwlth. Court - December 15, 2009


http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/438CD09_12-15-09.pdf

The UC Law “was not designed to insure a weekly income to those engaged in business ventures who may not realize a profit therefrom during various weekly periods.” Urban v. UCBR, 151 A.2d 655, 656 (Pa. Super. 1959). The Law cannot be used to give benefits to people otherwise employed. See Kirk v. UCBR, 425 A.2d 1188, 1191 (Pa. Cmwlth. 1981) (stating that “[p]ersons who are not so unemployed should not receive benefits from the fund”).

To that end, Section 402(h) of the Law excludes the self-employed from receiving benefits, stating that “[a]n employee shall be ineligible for compensation for any week . . . (h) In which he is engaged in self-employment.” 43 P.S. §802(h). The Law does not expressly define the term “self-employment,” but, in determining whether a claimant is engaged in self-employment, our courts have looked at whether the claimant engaged in positive acts to establish an independent business venture. Leary v. Unemployment Compensation Board of Review, 322 A.2d 749, 750 (Pa. Cmwlth. 1974). In addition, claimants who engaged in business and the solicitation of clients have been viewed as self-employed, regardless of whether the claimants received any income from those efforts. Keslar v. Unemployment Compensation Board of Review, 195 A.2d 886 (Pa. Super. 1963). “Normally the employer has the burden of proving that a claimant is self-employed, but where the bureau acts on its own in suspending benefits because of self-employment, the bureau carries the burden.” Teets v. Unemployment Compensation Board of Review, 615 A.2d 987, 989 (Pa. Cmwlth. 1992).

The Law recognizes that there are industrious individuals who, while employed by another, engage in self-employment which is not their primary source of income. These individuals who become unemployed through no fault of their own may, nonetheless, receive benefits under Section 402(h), which grants an exemption to the general self-employment exclusion. This is known as the sideline activity exception and provides that: [A]n employe who is able and available for full-time work shall be deemed not engaged in self-employment by reason of continued participation without substantial change during a period of unemployment in any activity including farming operations undertaken while customarily employed by an employer in full-time work whether or not such work is in “employment” as defined in this act and continued subsequent to separation from such work when such activity is not engaged in as a primary source of livelihood. 43 P.S. § 802(h).

Our Courts have interpreted this statutory language and held that the sideline activity exception is applicable when the following conditions are met: “(1) that the self-employment activity precedes valid separation from full-time work; (2) that it continues without substantial change after separation; (3) that the claimant remains available for full-time work after separation; and (4) that the selfemployment activity is not the primary source of the claimant’s livelihood.” Moshos v. Unemployment Compensation Board of Review, 466 A.2d 258, 259 (Pa. Cmwlth. 1983). A claimant who wishes to fall within the exception bears the burden of showing that all of these requirements are met. See id. n.2.

The parties concede that Claimant meets the first, third, and fourth conditions of the sideline activity exception. The central dispute is whether Claimant meets the second condition of the sideline activity exception. That is, whether Claimant’s increased activity in Quintessence, from zero hours per week to twenty hours per week, absent evidence of income, constitutes a substantial change after separation in which case Claimant would not meet the exception.

In support of his argument, Claimant relies on this Court’s decisions in Dausch v. UCBR, 725 A.2d 230 (Pa. Cmwlth. 1999), and LaSalle v. UCBR, 522 A.2d 1160 (Pa. Cmwlth. 1987). In Dausch, this Court examined the second condition of the sideline activity exception and concluded that “mere preparations undertaken to expand a sideline business . . . do not constitute a substantial change in the sideline business.” Id. at 232 (emphasis added).

In discussing whether a substantial change has occurred in a sideline business pursuant to the second condition, this Court cited to Quinn v. UCBR, 446 A.2d 714, 715 (Pa. Cmwlth. 1982), and Higgins v. UCBR, 405 A.2d 1024, 1025 (Pa. Cmwlth. 1979), as examples of how this Court has “focused primarily on whether a claimant is working in the activity for significantly more hours than he did prior to separation.” Dausch, 725 A.2d at 232 n.7 (emphasis added). In Quinn, 446 A.2d at 715, and Higgins, 405 A.2d at 1025, we held that an increase in hours from thirty to sixty per week and from ten to forty-five per week, respectively, constituted a substantial change in activity in the claimants’ sideline businesses. The Dausch court expanded its focus and did not only look at the hours worked prior to and after separation, but also examined the claimant’s actions to determine whether they were preparatory in nature or whether services were actually performed. Dausch, 725 A.2d at 232. This Court held that because there was no evidence that the claimant worked from the leased office prior to his benefits being terminated, solicited business or advertised for business prior to his termination, or performed services for clients prior to the time that his benefits were terminated, “the claimant’s sideline business activity did not substantially change after his separation from [employer].” Id.

Here, we must disagree with Claimant’s contention that his conduct was merely preparatory in nature and therefore his increase in hours is analogous to that in Dausch. First, just like in Quinn and Higgins, Claimant significantly increased the number of hours he worked (from zero to 20 hours per week) at his sideline business after his termination. Second, Claimant’s conduct of networking for twenty hours per week cannot be classified as merely preparatory and similar to the conduct of the claimant in Dausch. When Claimant, in this case, engaged in soliciting clients and discussing the professional services he could offer to them, he was performing activities that he would perform as part of his independent business venture. This type of activity was specifically found lacking in Dausch. Therefore, Claimant’s argument that Dausch requires Claimant to be found eligible for benefits because his activity did not constitute a substantial change after separation is rejected.

Claimant also contends that, because he generated no income from his sideline activity, he has established that his self-employment activity continues without substantial change pursuant to LaSalle. However, first, we acknowledge this Court’s rule of law that claimants who engage in business and the solicitation of clients have been viewed as self-employed, regardless of whether the claimants received any income from those efforts. Keslar, 195 A.2d at 886.

Second, we note that, although this Court in LaSalle stated that during the claim weeks at issue the claimant in that case did not generate any income from the sideline business, our Court also held that there was “no record evidence to indicate that Claimant’s real estate activity ha[d] increased since her work separation.” LaSalle, 522 A.2d at 1162. Unlike the facts in LaSalle, there is clear evidence here that Claimant significantly increased the amount of work he did for Quintessence following his separation from Employer, which was more than preparatory in nature. Accordingly, we conclude that Claimant’s conduct here constitutes a substantial change in sideline activity.

While we certainly sympathize with Claimant in these financially difficult times, we are constrained by rules of law. The Board did not commit an error of law and, therefore, the Board’s order is affirmed.

disability - hypothetical question - all impairments

Strouse v. Astrue - ED Pa. - March 19, 2010


http://www.paed.uscourts.gov/documents/opinions/10D0273P.pdf


The case was remanded because of the ALJ's failure to include all of the claimant's mental impairments in his hypothetical question to the vocational expert.


During the fifth step of the evaluation process, the ALJ may pose a hypothetical question to a VE to determine what jobs the claimant is capable of performing given his impairments. Rutherford, 399 F.3d at 554 (3d Cir. 2005). The hypothetical question “must reflect all of a claimant’s impairments supported by the record; otherwise the question is deficient and the expert’s answer to it cannot be considered substantial evidence.” Chrupcala v.Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987) (citations omitted). The hypothetical need not contain every impairment alleged by the claimant, but it must convey all credibly established limitations. Rutherford, 399 F.3d at 554.


Claimant contends the ALJ did not consider his moderate deficiencies in concentration, persistence, or pace. In a similar case, the Third Circuit found “a requirement that a job be limited to one to two step tasks, as was stated in the hypothetical relied upon by the ALJ, does not adequately encompass a finding that [petitioner] ‘often’ has deficiencies in concentration, persistence, or pace.” Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004). The court concluded the ALJ should have taken the claimant’s deficiencies in pace into account, explaining, “[m]any employers require a certain output level from their employees over a given amount of time, and an individual with deficiencies in pacemight be able to performsimple tasks, but not over an extended period of time.” Id. The court reasoned the VE may have changed her answer as to whether there were jobs in the local or national economy the claimant could perform if the hypothetical had included difficulties inmaintaining concentration, persistence, or pace. Id. Because the hypothetical did not adequately convey all of Ramirez’s impairments, the Third Circuit remanded his claimto the ALJ. Id. at 555.


Because the ALJ did not include claimant’s difficulties in maintaining concentration, persistence, or pace in the hypothetical question posed to the VE, this case is analogous to Ramirez. Thus, because the VE’s answer did not reflect all of claimant's credibly-established impairments, the hypothetical question posed by the ALJ was deficient, and the VE’s answer to it cannot be considered substantial evidence. This Court agrees with the recommendation of the Magistrate Judge, and finds the matter should be remanded to the ALJ to properly include this information in the hypothetical question to the VE.

welfare - MA - repayment - personal liability of surviving child

Maloy v. DPW - March 22, 2010

http://www.pacourts.us/OpPosting/Cwealth/out/1575CD09_6-10-10.pdf

Decendent's son/executor held personally liable for MA overpayments made to his deceased father.


The statute governing this situation provides that when undisclosed property makes a recipient ineligible for benefits, leading to overpayment, “[r]epayment of the overpayment shall be sought from the recipient, the person receiving or holding such property, the recipient’s estate and/or survivors benefiting from receiving such property.” Section 1408(c)(6)(i) of the Public Welfare Code,3 62 P.S. § 1408(c)(6)(i).


The ALJ found that the undisclosed transfer of the interest in the decedent's property was for inadequate consideration, and that this transfer made the decedent ineligible for benefits in the amount of the transferred interest. These findings, especially the former, are not challenged on appeal.


As the person to whom the interest in the decedent's property was transferred, the son certainly qualifies as one from whom repayment may be sought, because he is a “person receiving or holding [the undisclosed] property” that rendered his father ineligible for benefits.


The son's sole argument before this court, essentially, is that it would be unfair to collect repayment from him rather than from the estate. There is nothing about the Department’s decision to collect repayment from the son that approaches abuse of discretion or arbitrariness. Not only is the collection of repayment expressly authorized, but it seems entirely appropriate, given that it was his actions that led to the overpayment. It was the son, in his role as guardian, who executed the transaction that made the father ineligible for benefits; it was the son who failed to report that transaction to the Department, leading to the overpayment; and it was the son who failed to spend the proceeds of that transaction on the needs of the father, as he was required to do.

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child abuse - expungement - "serious mental injury"

In re C.B. - Cmwlth. Court - March 22, 2010 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1214CD09_3-22-10.pdf


Held, the evidence of abuse did not fall within the definition of a serious mental injury in Section 6303(a) of the Child Protective Services Law, 23 Pa. C.S. § 6303(a), which is defined a psychological condition which : (1) renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the child's life or safety is threatened; or (2) seriously interferes with a child's ability to accomplish age-appropriate developmental and social tasks.

To fall within the definition of a serious mental injury in Section 6303(a) of the Law, the child's condition must have rendered him to suffer a chronic and severe psychological condition, placed him in reasonable fear that his life or safety was threatened, or seriously interfered with his ability to accomplish developmental and social tasks appropriate for his age. The evidence accepted by the ALJ and the Bureau satisfied none of these elements of serious mental injury, citing In Luzerne County Children and Youth Services v. DPW, 550 A.2d 604 (Pa. Cmwlth. 1988). The court thus reversed the final DPW order.

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UC - willful misconduct - mandatory overtime

Phillips v. UCBR - Cmwlth. Court - March 22, 2010 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/2086CD09_3-22-10.pdf

Refusal to work mandatory overtime without good cause when an employee knows it is required constitutes willful misconduct. Waltz v. UCBR, 533 A.2d 199 (Pa. Cmwlth. 1987).

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UC - findings - no implicit findings - remand

Johnson v. UCBR - March 17, 2010 - unreported memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/1607CD09_3-17-10.pdf


Pro se claimant/appellant was successful in getting the case remanded to the UCBR, because the Board failed to make a critical finding of fact about claimant's knowledge of her duty to get state employment clearances.


The court said that

We decline to accept the “implicit” finding of fact that is critical to the outcome of this matter. Indeed, our Supreme Court has cautioned against such implicit findings stating, “[a]n appellate court or other reviewing body should not infer from the absence of a finding on a given point that the question was resolved in favor of the party who prevailed below, for the point may have been overlooked or the law misunderstood at the trial or hearing level.” Page's Department Store v. Velardi, 464 Pa. 276, 287, 346 A.2d 556, 561 (1975); see also Monroe G. Koggan Associates, Inc. v. UCBR, 472 A.2d 277, 280 (Pa. Cmwlth. 1984)

Moreover, we have held that a remand is appropriate: "where the findings of fact are inadequate and cannot be construed to resolve all of the factual issues necessary for proper appellate review, “[i]t is not for this Court . . . to make findings of fact because the duty to consider and evaluate testimony and to make findings of fact thereon is for the fact-finder. When the fact-finder in an administrative proceeding is required to set forth [its] findings in an adjudication that adjudication must include all findings necessary to resolve the issues raised by the evidence which are relevant to the decision.” Monroe G. Koggan, 472 A.2d at 280 (emphasis added) (quoting Lipchack v. UCBR, 383 A.2d 970, 972 (Pa. Cmwlth. 1978) (citations omitted)).

foreclosure - standing - link to list of cases on standing

Here is a link to a web site listing recent foreclosure cases which were dismissed or motion for relief from stay (bankruptcy) was denied because the plaintiff was unable to demonstrate that it had standing.

Some of the cases discuss whether MERS is a proper plaintiff, and others discuss securitization issues and whether the lack of a proper assignment bars a foreclosure.

http://www.msfraud.org/LAW/Lounge/Standing.html