UC - vol. quit - medical reasons - non-expert evidence

Visay v. UCBR - March 22, 2010 - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1833CD09_3-22-10.pdf


The court held that, under the circumstances of this case, the claimant did not have to produce expert medical evidence to explain why she (temporarily) left her job, holding that "[t]here is no doubt Claimant here offered evidence which, if believed by the fact-finder, would have satisfied her burden to explain her motivation to leave her employment. Judd v. UCBR, 496 A.2d 1377, 1379 (Pa. Cmwlth. 1985) (citations omitted) (emphasis added); see also Steffy v. UCBR, 499 Pa. 367, 453 A.2d 591 (1982).


In Judd, the court said that "anxiety and emotional distress can be necessitous and compelling cause for terminating one’s employment, and … a claimant does not necessarily have to present expert medical evidence in order to establish that he had compelling medical reasons for terminating his employment, but instead may establish that fact by any competent evidence such as claimant’s own testimony and/or documentary evidence." (emphasis in original).

Thus, the Board erred in determining Claimant was required to present expert medical evidence to prove why she left her employment.


Claimant was a combat veteran who worked at transitional housing facility (THF) for homeless women veterans. The job required her to live at the facility. At some point, claimant suffered from her own PTSD problems and got extended off-site treatment at two other facilities. When she returned to work after treatment, the employer did not have any available positions, so she applied for UC.


At the hearing, she did not offer any expert medical evidence but testified and offered other evidence, which showed that she is a veteran; while at the THF, she saw a psychologist and underwent therapy in order to get her “life started over again”; both the program director and her psychologist suggested that she leave the House to partake in the out-of-state PTSD program “to deal with some of [her] traumatic issues.” This testimony explained Claimant’s subsequent actions and was not subject to a hearsay objection. It also shows communication between Claimant and Employer concerning her mental health problems. The record also contains a letter from a staff nurse at the PTSD facility, corroborating Claimant’s testimony that she was participating in the PTSD program. Plaintiff also testified that after the PTSD treatment, she got further treatment at a VA facility.


The court contrasted this case and the holding in Judd with the facts and opinion in Jordan v. UCBR, 684 A.2d 1096 (Pa. Cmwlth. 1996), where the court held that the claimant "could not prove his mood disorder caused his unreasonable and unjustifiable conduct without offering expert testimony, and the claimant himself was not qualified to offer an expert opinion. . . .Unlike the claimant in Jordan, however, Claimant here did not assert that her mental health problem compelled an uncontrollable action or irresponsible decision, which was therefore not willful. These types of assertions clearly require expert opinion. Instead, Claimant here asserted advice for remote treatment resulted in her conscious, reasonable decision to seek that treatment. Accordingly, the Board’s reliance on Jordan is misplaced. Rather, in this case the Judd standard is appropriate for determining whether Claimant proved a compelling reason to leave her employment.

abuse - expungement - corporal punishment

F.R. v. DPW - Cmwlth. Court - September 1, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2062CD09_9-1-10.pdf


This Court concludes, based upon the plain language of the definition of “nonaccidental” and the purpose and intent behind the CPSL, that criminal negligence is the proper standard in corporal punishment cases.

While there is little doubt that the Crimes Code and the CPSL are linked in some ways, it is clear, as acknowledged by our Supreme Court in P.R. v. DPW, 569 Pa. 123, 801 A.2d 478 (2002), that the Crimes Code standard applies in criminal proceedings, while the CPSL standard applies to administrative proceedings. This does not imply that corporal punishment is barred under the CPSL, but rather that the standard of determining when corporal punishment crosses the threshold into child abuse is different in the criminal and administrative contexts. See P.R., 569 Pa. at 132, 801 A.2d at 483 (citing Section 6302(c) of the CPSL, 23 Pa. C.S. § 6302(c), and recognizing that CPSL “offers no restriction on the existing rights of parents to use corporal punishment.”) The appeal now before the Court is from an administrative proceeding under the auspices of the CPSL, and, thus, the Crimes Code does not apply.

The Supreme Court . . .held that to show child abuse in cases of corporal punishment, the agency must show, through substantial evidence, that the child’s serious injury was the result of criminal negligence. Id. at 138, 801 A.2d at 487. . . .[W]e believe the General Assembly’s amendment of the CPSL following P.R. was an effort to codify the Supreme Court’s decision in P.R., not circumvent it. . . .[T]he criminal negligence standard proffered by our Supreme Court in P.R. is now codified in the CPSL under the auspices of the definition of “nonaccidental.” The result is that P.R. remains controlling precedent, and criminal negligence is still the proper standard in corporal punishment cases.

These two statutes [the Crimes Code and the CPSL] act in tandem to create a very limited safe harbor in which parents may use corporal punishment without being found to have engaged in child abuse—one couched in the criminal world; one couched in the administrative world. Thus, an indicated report of child abuse under the CPSL may be proper in a situation in which criminal charges are not. This is what the Supreme Court recognized in P.R., it is what was found to be the purpose and legislative intent behind the statutes, and it is why the Supreme Court used the criminal negligence standard in applying the CPSL to corporal punishment cases. In this way, these considerations work hand-in-hand and create a workable statutory scheme that upholds the General Assembly’s intent to protect children and to provide parents choices in raising and reasonably disciplining their children.

UC - willful v. unintentional conduct - credibility

Oliver v. UCBR - Cmwlth. Court (en banc) - September 1, 2010 - 5-2 decision


http://www.pacourts.us/OpPosting/Cwealth/out/1798CD09_9-1-10.pdf


Daycare worker held to have committed willful misconduct by violating employer rule about "100% supervision policy" for the children under her care. "Claimant took her group of six children from the playroom to an outdoor play area. Employer had a policy that a teacher must supervise all of the children in her charge at all times. Claimant’s supervisor noticed that one child was still in the playroom. She retrieved the child and delivered him to Claimant. Claimant’s failure to supervise this child resulted in her termination," even though she claimed that this was an inadvertent "honest mistake."


While Claimant concedes that she violated Employer’s rule, she asserts that her conduct was not willful, intentional, or deliberate and does not constitute willful misconduct, but "[c]ritically, Claimant’s version of the events was not credited by the Board," which reversed the referee. The Claimant did not raise the issue of the Board’s alleged failure to support its decision for overriding the referee’s credibility determinations in the Statement of Questions Involved or in the Argument section of her brief. . . [I]t does not appear that Claimant preserved the issue of whether the Board failed to provide sufficient support for arriving at a different credibility determination than the referee in the Statement of Questions Involved. . . .Assuming arguendo, that Claimant did raise this issue in the Statement of Questions Involved, Claimant must also raise the issue in the Argument Section of the brief. . . .At no time in the brief did Claimant argue that the Board erred when it overrode the credibility determination of the referee without adequate explanation. This Court does not raise non-jurisdictional issues sua sponte. Claimant failed to preserve this issue." The court then goes on to discuss, at length, the issue of whether the claimant's testimony was uncontradicted, under Treon v. UCBR, 499 Pa. 455, 460, 453 A.2d 960, 962 (1982).

The court held that "Claimant’s conduct was not a mere mistake. . . Even if her actions constituted an honest mistake, it would not justify the violation of Employer’s rule." Heitczman v. UCBR, 638 A.2d 461 (Pa. Cmwlth. 1994) (fork-lift driver's accident was disqualifying willful misconduct because it violated an employer safety rule concerning about driving a fork-lift).


Dissent (Brobson and Leavitt) - The "Board failed to support its decision for overriding the credibility determination of the referee. . . ."As the ultimate finder of fact, the Board certainly had the right to disbelieve Claimant, even though her testimony was uncontradicted. Treon v. UCBR, 499 Pa. 455, 460, 453 A.2d 960, 962 (1982). The Board, however, is not free to disregard findings of the referee based upon consistent and uncontradicted evidence without providing the reasons for its reversal." The court and Board were wrong to find the claimant's testimony "internally inconsistent. . . The Board has not set forth its reason for reversal, and the Board’s reason for reversal is not “plain enough” from the record. . . .Because I am unable to determine why the Board reversed the referee, there is not an adequate basis for judicial review"

real property - tax sale - notice - posting - front door v. back door

Schooley v. Beaver Co. Tax Claim Bureau - Cmwlth. Court - September 1, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2517CD09_9-1-10.pdf


Tax sale overturned despite property owners having received actual notice of tax sale, where the TCB did not satisfy the statutory requirement of "conspicuous posting" of a notice of the sale on the property, affirming Ban v. Tax Claim Bureau of Washington Co., 698 A.2d 1386 (Pa. Cmwlth. 1997), where as here the notice was posted on the back door of the property. Ban held that " the Tax Sale Law required posting on the front-door of his property where it would have been visible from the public street, providing notice to the public at large, conspicuous and reasonably calculated to provide notice to the general public."


Notice provisions are to be strictly construed, that strict compliance is required to prevent deprivation of property without due process of law, and that if notice is defective, then the sale is void. . . .The courts: “must consider not only whether the posting is sufficient to notify the owner of the pending sale, but provides sufficient notice to the public at large. . . .” Id., 698 A.2d at 1388. Thus, according to Ban, the Tax Sale Law’s notice requirement includes the requirement that notice be posted such that it can be seen by the public, is conspicuous, and is placed in such a manner so as to attract the attention of an ordinary passerby. Actual notice to the property owner does not cure defective posting. Id.; see also O’Brien v. Lackawanna Cnty. Tax Claim Bureau, 889 A.2d 127 (Pa. Cmwlth. 2005).

real property - tax sale - proof of mailing - USPS Form 3817

In re York Co. Tax Claim Bureau - Appeal of Luciani - Cmwlth. Court - September 1, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2164CD09_9-1-10.pdf



In an issue of first impression, the court held that the only acceptable proof of mailing under the Real Estate Tax Sale Law, 72 P.S. §5860.602(h), is through the use of the USPS Form 3817, certificate of mailing. In this case, the TCB's only proof of mailing was a handwritten notation on its own letterhead.

social security - disability - RFC - VE v. DOT - SSR 00-4P

McHerrin v. Astrue - ED Pa. - August 31, 2010


http://www.paed.uscourts.gov/documents/opinions/10D0930P.pdf


The court affirmed the magistrate's recommendation for a remand because of the ALJ's failure to resolve a discrepancy about RFC involving testimony of the VE and information in the DOT.


SSR 00-4P Defines the Procedure the ALJ Must Follow When the VE’s Testimony Conflicts with the DOT.
SSR-04p is a self-promulgated Social Security ruling that interprets Social Security regulations 20 C.F.R. § 404.1566(d),(e) and § 416.966(d),(e). Social Security rulings are binding at all levels of the adjudicative process. Walton v. Halter, 243 F.3d 703 (3d Cir. 2001). The specific purpose of adopting SSR 00-4p was to clarify Social Security’s standards for identifying and resolving conflicts between “occupational evidence provided by a VE or VS and information in the DOT.” SSR 00-4p. SSR 00-4p states that the Commissioner primarily relies on the DOT for information about the requirements of work in the national economy, and on testimony by the VE to resolve complex vocational issues. The ruling states that evidence provided by a VE during an administrative hearing should be consistent with the occupational information supplied by the DOT. Id. SSR 00-4p further provides that “[n]either the DOT nor the VE or VS evidence automatically ‘trumps’ when there is a conflict.” Id. Rather, the ALJ “must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than the DOT information.” Id. In this Circuit, courts have interpreted this ruling to mean that the ALJ has an affirmative duty to ask a VE if a conflict exists between his opinion and the DOT before relying on the VE’s testimony. Walker v. Astrue, 2010 WL 3167557, *5-6 (E.D. Pa. Aug. 10, 2010).


The Third Circuit has held that failure of the ALJ to comply with the requirements in SSR 00-4p to fully develop the record may result in remand of a claim by the district court where the VE’s testimony is inconsistent with the DOT and there is no other substantial evidence in the record to support the ALJ’s decision, Rutherford, 399 F.3d at 557.

UC - willful misconduct - bad language - provoked or de minimis

Triplie v. UCBR - Cmwlth Court - Sept. 1, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/2575CD09_9-1-10.pdf


This is an unreported case but the court gave a useful summary of the law on this issue:

This Court has held that abusive, vulgar, or offensive language addressed to a supervisor may support a finding of willful misconduct, so long as it is not provoked or de minimis.4 Allen v. UCBR, 638 A.2d 448, 451 (Pa. Cmwlth. 1994). Even a single instance of vulgarity directed to, and unprovoked by, a supervisor is sufficient for a finding of willful misconduct. Losch v. UCBR, 461 A.2d 344, 345 (Pa. Cmwlth. 1983). Furthermore, insubordination in general may constitute willful misconduct. Losch, 461 A.2d at 345.

4 See, e.g., Blount v. UCBR, 466 A.2d 771 (Pa. Cmwlth. 1983) (holding that threat by claimant found to be off-hand utterance in nature of joke was not willful misconduct); Luketic v. UCBR, 386 A.2d 1045 (Pa. Cmwlth. 1974) (finding justified and not to be willful misconduct claimant’s statement that employer was being less than honest); Horace W. Longacre, Inc. v. UCBR, 316 A.2d 110 (Pa. Cmwlth. 1974) (holding allegedly offensive remark by claimant to be provoked and de minimis).

__._,_.___

statutes - regulations - delegation of legislative authority

Pennsylvania Builders Assn. v. Dept. of Labor and Industry - Cmwlth. Court - August 25, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/27MD10_8-25-10.pdf


Plaintiff challenged administrative regulations implementing the state construction code, claiming that the regs were promulated by an improper delegation of legislative authority, contrary to Article II, sec. 1, of the Pennsylvania Constitution, which place the power to make laws exclusively within the province of the state legislature.


The court rejected the challenge, stating the following general principles:

Article II, Section 1 of the Pennsylvania Constitution provides that “[t]he legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” Pa. Const. art. II, § 1. “Legislative power has been described as the power to incur public debts, levy or collect taxes or make laws.” Scuoteguazza v. DOT, 399 A.2d 1155, 1157 (Pa. Cmwlth. 1979). The legislative power implicated here is the General Assembly’s authority to “make laws.” In Association of Settlement Companies, this Court stated that “Article II, section 1 embodies the fundamental concept that only the General Assembly may make laws, and cannot constitutionally delegate the power to make law to any other branch of government or to any other body or authority.” Assn. of Settlement Companies, 977 A.2d at 1265 (quotation marks omitted). Thus, neither L&I nor ICC may be delegated the General Assembly’s power to make law.

The General Assembly may, however, delegate rule-making authority. This Court has declared that “[t]he Legislature may . . . authorize an agency to carry out the legislative intent described in general terms through rules, regulations and standards established by the agency.” Bortz Coal Co. v. Air Pollution Comm’n, 279 A.2d 388, 392 (Pa. Cmwlth. 1971). The General Assembly may delegate: “rulemaking in the sense of creating generalized rules of continuing application on the subject of the legislature’s concern.” Charter Hosp. of Bucks County v. Dep’t of Health, 534 A.2d 1125, 1130 (Pa. Cmwlth. 1987). Properly delegated rulemaking authority exists: “where the legislature states a general policy but gives the administrative agent, within limits set by express standards, the power to fill in details of the policy with regulations.” Id.

‘Where the standard fixed by the Legislature is not arbitrary or unlimited, but is definite and reasonable, the delegation of power or discretion will be sustained as constitutional. In considering the standard, regard must be had to the purpose and scope of the Act, the subject matters covered therein, the duties prescribed, and the broad or narrow powers granted, because those factors will often determine whether or not a sufficiently clear, definite and reasonable standard has been established.’ Bortz Coal Co., 279 A.2d at 393 (quoting Dauphin Deposit Trust Co. v. Myers, 388 Pa. 444, 449, 130 A.2d 686, 688 (1957)).

There is not a bright line test for determining exactly how or when rules, regulations or standards developed by administrative agencies or non-governmental parties become improper enactments of substantive law. In Gilligan v. Pennsylvania Horse Racing Commission, 492 Pa. 92, 422 A.2d 487 (1980), the Pennsylvania Supreme Court held “[t]he latitude of the standards controlling exercise of the rulemaking powers expressly conferred on [a non-legislative party] must be viewed in light of the broad supervisory task necessary to accomplish the express legislative purpose.” Id., 492 Pa. at 98, 422 A.2d at 490. Ultimately, “[t]he rules, regulations and standards of the regulatory agency must be reasonable, understandable, available, and must not violate the constitutional rights of any citizen.” Bortz Coal Co., 279 A.2d at 392. “[T]he delegation of authority to an agency is construed liberally when the agency [namely, L&I,] is concerned with protecting the public’s health and welfare.” DRB, Inc. v. Dept. of Labor & Industry, 853 A.2d 8, 19 (Pa. Cmwlth. 2004), aff’d, 585 Pa. 8, 887 A.2d 1216 (2005).

federal courts - abstention - state court general order restricting residential evictions

SKS & Associates v. Dart - 7th Cir. - August 27, 2010


http://www.ca7.uscourts.gov/tmp/0N1FFAS9.pdf


Corporate landlord brought sec. 1983 challenge to state court general order restricting residential evictions: (a) during two and a half weeks in the winter holiday season, (b) whenever the outside temperature dropped below 15 degrees Fahrenheit, or (c) whenever the sheriff determined that “extreme weather conditions endanger[ed] the health and welfare of those to be evicted.” The Circuit Court had issued similar orders in previous years. Plaintiff claimed that these orders denied it equal protection and due process and cost it money by delaying evictions.


The district and circuit courts held that the landlord's action was barred by Younger abstention, stating that "[t]o the extent that delays in state court processes adversely affect the plaintiff, it can and must seek remedies through the state courts themselves. . . .Under established abstention doctrines, however, a federal court may, and often must, decline to exercise its jurisdiction where doing so would intrude upon the independence of the state courts and their ability to resolve the cases before them."


Even though not quite a perfect fit, this case implicates the principles of Younger abstention, which requires federal courts to abstain from taking jurisdiction over federal constitutional claims that seek to interfere with or interrupt ongoing state proceedings. Younger v. Harris, 401 U.S. 37 (1971).


SKS is not a defendant in the pending state eviction actions, but it seeks to have a federal court tell state courts how to manage and when to decide a category of cases pending in the state courts. Federal adjudication of SKS’s claims on their merits would reflect a lack of respect for the state’s ability to resolve the cases properly before its courts. Adjudication here would thus run contrary to the “vital” considerations of comity and federalism, . . . and would be inconsistent with “the traditional reluctance of a federal court to meddle in state court proceedings. . . .We see no “unambiguous authority” that would prevent SKS from presenting its federal claims in the state courts.”

consumer - repossesssion - voluntary v. involuntary

Cosgrove v. CItizens Automobile Finance, Inc. - ED Pa. - August 26, 2010

http://www.paed.uscourts.gov/documents/opinions/10D0886P.pdf

Plaintiff brought claims against Defendant for defective notice of repossession of cars, under the UCC and the Pa. Motor Vehicle Sales Finance Act (MVSFA) Defendant moved for judgment on the pleadings, which the court denied.

The key issue involved the fact that plaintiff voluntarily surrended the vehicles, rather than suffer involuntary repossessions. Defendant claimed that this voluntariness of plaintiff's action took him out of the coverage and protection of the MVSFA. The court rejected this argument:

The Court is not persuaded that the Legislature in section 623(D) [of the MVSFA] intended to distinguish between debtors who surrender their cars and those who lose their cars to involuntary repossession. Voluntary surrender of vehicles with defaulted loans is to be encouraged, as it reduces potential conflicts between debtors and creditors. . . . The Pennsylvania Legislature surely did not mean to punish debtors who choose to cooperate with lenders by depriving them of their right to receive notice of their contractual reinstatement rights, nor insist that debtors fight their lenders tooth and nail in order to receive protection under section 623(D). Many reasonable debtors, when informed by a secured creditor that they are past due on their repayment obligation and that the creditor is planning to seize their car, will not wait for the embarrassment of a “repo man” showing up at their door but will instead return the vehicle. This does not mean that these debtors are ceding all rights to the collateral or that they could not benefit from notice of their contractual right to reinstatement. A person who relinquishes his car in the face of pressure from creditors and a person whose car was seized from him both have the same “forlorn hope that if he is notified, [he] will either acquire enough money to redeem the collateral or send his friends to bid for it.” . . . .Because voluntary surrender is preferred under the law, the Court cannot conclude that the Pennsylvania Legislature intended to deny debtors who surrender their collateral the same rights conferred upon debtors whose property is repossessed. Addressing an analogous issue, courts have concluded that a creditor is not relieved of the obligation of notice of disposition of collateral simply because a debtor voluntarily surrenders his or her property.

housing - sec. 8 - non-payment of rent not a per se "serious violation" of lease

Gray v. Allegheny Co. Housing Authority - Cmwlth. Court - August 25, 2010 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/19CD10_8-25-10.pdf



There was an administrative grievance hearing, at which it was found that the sec. 8 tenant had committed a "serious violation" of the lease under 24 CFR 982.552(b)(2) by failing to pay rent and suffering an MDJ judgment of eviction. At that hearing, tenant testified that he had paid judgment rent to the landlord and thus satisfied the judgment, which was a "pay and stay" judgment under
MDJ Rule 518.


The tenant then appealed to the court of common pleas, which reversed, holding that the HA hearing officer had erred by concluding that non-payment of rent was a per se "serious violation" of the lease. The court agreed, rejecting the HA's argument that non-payment is rent is always a "serious violation." "The trial court was correct that the hearing officer wrongly applied Section 982.552(b)(2) in holding that an eviction, ipso facto, established a serious lease violation." It found that the HA should have examined the reason for non-payment, stating that "[w]hat is absent from the record in this case, however, is why [the tenant], who had apparently paid his rent in a timely fashion for one year, failed to make one payment and continued not to pay until after he was evicted."


The court also noted that the MDJ entered a pay-and-stay judgment, which tenant could have paid right away but did not, because the landlord wouldn't accept payment and insisted that tenant vacate the property. If true, [tenant's] nonpayment of rent was a harm of the landlord’s making and should not be relevant to [tenant's] eligibility for assistance. Such undue influence, if true, was particularly improper with respect to a tenant who suffered a mental impairment. The record is also absent of evidence about [tenant's] monthly rental history, such as which month he missed his rent payment or by how much. All these facts are relevant to whether [tenant] failed to pay rent."

Ultimately, the court held that "[i]n short, the record is incomplete on the dispositive issue of whether [the tenant] committed a serious violation of the lease. See Cain v. Allegheny County Housing Authority, 986 A.2d 947, 952 (Pa. Cmwlth. 2009) (incomplete record is one that lacks sufficient evidence for an appellate court to rule on the question presented).


---------------------


There is a lot of good stuff in this opinion. I think that we should consider asking the court to order its publication, so that it can be cited in the future. Please let me know if you agree or not. The opinion cannot be cited, http://www.pacode.com/secure/data/210/chapter67/chap67toc.html#67.55 Reporting of Opinions; Certain Decisions not to be Cited. Unreported opinions of this court shall not be cited in any opinion of this court or in any brief or argument addressed to it. . . . "

Prevailing Wage Act - public projects

Borough of Schuylkill Haven v. Prevailing Wage Appeals Board


http://www.pacourts.us/OpPosting/Cwealth/out/921CD09_8-20-10.pdf


The court upheld the Board's determination that the borough's sewer manhome maintenance project came under the Prevaling Wage Act, 43 P.S. §§165-1 - 165-17. whose "purpose is to protect workers on public projects from substandard wages by ensuring that they receive the prevailing minimum wages. Ferguson Electric v. Foley, 115 F.3d 237 (3d Cir. 1997). By guaranteeing such protection, the legislation helps to insure the employment of skilled craftsmen on the job. Keystone Chapter of Associated Builders & Contractors, Inc. v. Department of Labor & Industry, 414 A.2d 1129 (Pa. Cmwlth. 1980). The Act has been recognized as a remedial statute that is to be liberally construed to affect its purposes. Kulzer Roofing, Inc. v. Department of Labor & Industry, 450 A.2d 259 (Pa. Cmwlth. 1982). Any exceptions to its remedial provisions are to be narrowly construed. DiLucente Corp. v. Pennsylvania Prevailing Wage Appeals Board, 692 A.2d 295 (Pa. Cmwlth. 1997). The burden of proof in a grievance proceeding is on the grievant. 34 Pa. Code §213.8(j).

consumer - no govt/sovereign immunity under state consumer protection law

Myer, D., et al., etc. v. Community College of Beaver County, Nos. 20-21 WAP 2009
Opinion By: Saylor, Thomas G.
Posted By: W.D. Prothonotary
	Date Rendered: 8/17/2010
	Date Posted: 8/17/2010
	Opinion Type: Majority Opinion	J-22A&B-2010mo.pdf
	Date Rendered: 8/17/2010
	Date Posted: 8/17/2010
	Opinion Type: Concurring Opinion	J22AB-2010co.pdf

Reversing the Commonwealth Court, 965 A.2d 406, 968 A.2d. 235 (Cmwlth. 1009), the Supreme Court held that claims against a government entity under the state consumer protection law, 73 P.S. sec, 201-1 et seq., were not barried by sovergeign/governmental immunity.


The court agreed with the plaintiff/appellants "that the approach taken by the Commonwealth Court is not sustainable. As Appellants ably explain, the language of the statute conferring governmental immunity, and of that implementing the exceptions, pertains to conduct causing 'injury to a person or property.' 42 Pa.C.S. §§ 8541, 8542. The Commonwealth Court previously has recognized that these terms reflect the main policy consideration historically underlying tort law, whereas, the central focus of contract law is the protection of bargained-for expectations. See Hazelton Area Sch. Dist. v. Bosak, 671 A.2d 277, 282-83 (Pa. Cmwlth. 1996). . . .In line with the extant understanding of the Political Subdivision Tort Claims Act, we believe the Legislature centered the immunity there conferred on “injury to a person or property” as a reflection of traditional tort jurisprudence. . . .

civil services - removal - just cause

State Board of Probation and Parole v. State Civil Service Commission (Manson)

Commonwealth Court - August 18, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1958CD09_8-18-10.pdf


The court affirmed the Commission's decision that the employer Board did not meet its burden of proving just cause for the employee's removal pursuant to section 807 of the Civil Service Act, 71 P.S. §741.807, but did establish just cause for Manson’s suspension under section 803 of the Act, 71 P.S. §741.803. The case involved a missing firearm and an alleged improper relationship with a parolee under Board supervision.

In an appeal challenging the removal of a regular status employee, the appointing authority has the burden of establishing just cause for the personnel action. Mihok v. DPW, 607 A.2d 846 (Pa. Cmwlth. 1992).

To show just cause for the removal of a regular status civil service employee, the appointing authority must demonstrate that the actions resulting in the removal are related to an employee’s job performance and touch in some rational and logical manner upon the employee’s competence and ability. Ellerbee-Pryer v. State Civil Service Commission, 803 A.2d 249 (Pa. Cmwlth. 2002).

What constitutes ample just cause for removal is largely a matter of discretion on the part of the head of the department. However, to be sufficient, the cause should be personal to the employee and such as to render the employee unfit for his or her position, thus making dismissal justifiable and for the good of the service. Woods v. State Civil Service Commission, 590 Pa. 337, 912 A.2d 803 (2006). Whether actions of a civil service employee constitute just cause for removal is a question of law fully reviewable by the court. Ellerbee-Pryer.

The Commission is the sole fact finder in civil service cases and has exclusive authority to assess witness credibility and resolve evidentiary conflicts. Here, the Commission appeared to credit the parolee’s denial of a relationship with the employee, and it it correctly concluded that the evidence presented by the Board was insufficient to establish the employee's knowledge of the person’s status as a parolee.

The Commission properly invoked its authority to modify the Board’s disciplinary action from removal to a thirty-day suspension without back pay or benefits. Section 952(c) of the Civil Service Act, 71 P.S. §741.952(c) (granting the Commission discretion to modify or set aside the disciplinary action of the appointing authority and, where appropriate, order reinstatement with or without payment of salary or wages lost).

disability - onset date - progressive impairment - medical advisor expert opinion required

Kirkwood v. Astrue - ED Pa. - Augut 11, 2010


http://www.paed.uscourts.gov/documents/opinions/10D0838P.pdf


SSR 83-20 requires that an ALJ use a medical advisor to determine the onset date of impairments when the onset date must be inferred due to the progressive nature of the impairment.1 See Walton v. Halter, 243 F.3d 703, 710 (3d Cir. 2001) (“[T]his is a situation in which an opinion based on personal, contemporaneous observation was not available. In such a situation, SSR 83-20 calls for an ALJ to have the benefit of expert medical advice based on the best available data without regard to its source.”). The Third Circuit reiterated this requirement in Newell v. Commissioner, 347 F.3d 541 (3d Cir. 2003).

SSR 83-20 states in relevant part:

In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred. If there is information in the file indicating that additional medical evidence concerning onset is available, such evidence should be secured before inferences are made. If reasonable inferences about the progression of the impairment cannot be made on the basis of the evidence in file and additional relevant medical evidence is not available, it may be necessary to explore other sources of documentation. Information may be obtained from family members, friends, and former employers to ascertain why medical evidence is not available for the pertinent period and to furnish additional evidence regarding the course of the individual's condition.

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UC - cosmetologist - employee v. indpt. contractor

Osborne Associates v. UCBR - Cmwlth. Court - August 13, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2084CD09_8-13-10.pdf


The court remanded this case back to the UCBR and directed it to apply the court's indpt. contractor body of law to the facts. The Board had granted benefits to the claimant, a cosmetologist, without applying the independent contractor test factors, concluded that Claimant was not disqualified from receiving benefits under Section 402(h) and Section 4(l)(2)(B) of the Law, because it believed that the cosmetology statute, 63 P.S. § 514.1 and related regulations, 49 Pa. Code § 7.81et seq., prohibited a cosmetologist from being an independent contractor, analogizing the matter to the case of a dental hygienist.


The court held that Board had created a body of law out of whole cloth and should, rather, have followed the court's analysys set out in Glatfelter Barber Shop v. UCBR, 957 A.2d 786 (Pa. Cmwlth. 2008), concerning the effect of a supervision requirement on the issue of employee v. indpt. contractor.


The "Board freely acknowledges that it decided this case on the basis of a different legal theory and that it did not make all of the findings necessary to determine Claimant’s eligibility for benefits based on the independent contractor test factors. The Board, thus, requests that this Court remand this matter back to the Board to make the necessary findings. We believe that the remand requested by the Board would be consistent with our precedent. See Resource Staffing, 961 A.2d at 265... D.K. Abbey Marketing, Inc. v. UCBR, 645 A.2d 339, 341-42 (Pa. Cmwlth. 1994)

federal courts - right to proceed anonymously

Doe v. Megless et al. - ED Pa. - August 5, 2010


http://www.paed.uscourts.gov/documents/opinions/10D0780P.pdf


The court rejected the sec. 1983 plaintiff's request to proceed anonymously in an action against school officials, who had circulated flyers calling plaintiff a "suspicious person," giving his name, address, pictures, vehicle information, etc. and stating “Extra Patrols Around Schools, Suspicious Person [John Doe] has been known to hang around schools in Upper Merion and other townships. He has not approached any kids to this point. [John Doe’s] mental status is unknown. If seen, stop and investigate.”

Lawsuits are inherently public events. SeeDoe v.Morrisville, 130 F.R.D. 612, 614 (E.D. Pa. 1990) (“[L]awsuits are public events and the public has a legitimate interest in knowing the pertinent facts, including the true names of the parties.”). The Federal Rules of Civil Procedure require litigants provide the names of all parties. Fed. R. Civ. P. 10(a);Morrisville, 130 F.R.D. at 614.

The public has a presumptive right to open judicial proceedings, and this right is not taken lightly. Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1043 (9th Cir. 2010); see also Doe v. Provident Life and Accident Ins. Co., 176 F.R.D. 464, 465 (E.D. Pa. 1997) (“This Court recognizes the strong public interest militating against pseudonymity— the public right of access to civil judicial records, and proceedings.”).

A plaintiff’s use of a pseudonym “runs afoul of the public’s common law right of access to judicial proceedings.” Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000). A court may allow a party to proceed anonymously in exceptional cases. Morrisville, 130 F.R.D at 614 (“Under special circumstances . . . courts have allowed parties to use fictitious names, particularly where necessary to protect privacy.”). Anonymity may be warranted if a case involves highly sensitive or personal matters, or if there is a concrete risk of injury to the plaintiff by disclosure. M. M. v. Zavaras, 139 F.3d 798, 803 (10th Cir. 1998). To proceed anonymously, a plaintiff must show “both a fear of severe harm, and that the fear of severe harm is reasonable.” Kamehameha Sch., 596 F.3d at 1043. The risk a plaintiff may suffer some embarrassment is not enough. Morrisville, 130 F.R.D. at 614; see also Rose v. Beaumont Indep. Sch. Dist., 240 F.R.D. 264, 266 (E. D. Tex. 2007)

A district court has broad discretion to decide whether to permit a plaintiff to proceed anonymously. Doe v. C.A.R.S. Protection Plan, Inc., 527 F.3d 358, 371 n.2 (3d Cir. 2008). In making this determination, “the public’s right of access [to the court] should prevail unless the party requesting pseudonymity demonstrates that [his] interests in privacy or security justify pseudonymity.” Doe v. Evans, 202 F.R.D. 173, 175 (E.D. Pa. 2001).

The Third Circuit has not addressed the standard for granting anonymity, but other circuits conduct a balancing test weighing the public interest in open proceedings against a litigant’s personal privacy and security. See Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001) (“The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally embedded presumption of openness in judicial proceedings.”) (citation, punctuation, and internal quotation marks omitted); Does I Thru XXIII, 214 F.3d at 1068 (“[We] hold that a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.”).

A district court considers a number of non-exclusive factors when decidingwhether to grant a party anonymity. Evans, 202 F.R.D. at 175. Factors in favor of anonymity include: (1) the extent litigant has kept his identity confidential; (2) the reason for anonymity; (3) if there is public interest in favor of anonymity; (4) if the case is fact sensitive or purely of a legal nature; (5) whether the litigant will pursue his claim if he cannot proceed anonymously; and (6) if the party opposing anonymity has illegitimate ulterior motives. Id. at 175-76. Factors against anonymity include: (1) the general level of public interest in the case; (2) if there is a higher level of public interest in the trial because of the subject matter involved or the public status of a litigant; and (3) if the party seeking anonymity has an ulterior motive. Id. . . .

After weighing the factors [at length], this Court holds Plaintiff has not proven his private interest in anonymity outweighs the public’s interest in open judicial proceedings. Accordingly, Plaintiff’s motion to proceed anonymously is denied.

sheriff's sale - setting aside

Irwin Union National Bank and Trust v. Famous - Superior Court - August 9, 2010

http://www.pacourts.us/OpPosting/Superior/out/S42044_10.pdf

Pennsylvania Rule of Civil Procedure 3132 provides: Setting Aside Sale - Upon petition of any party in interest before delivery of . . the sheriff's deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances. [Pa.R.C.P. 3181(a)(1)(8) makes Pa.R.C.P. 3132 applicable to mortgage foreclosure actions.]

The relevant inquiry is whether proper cause has been shown to set aside the sheriff's sale. The decision to set aside a sheriff's sale is within the sound discretion of the trial court. Merrill Lynch Mortgage Capital v. Steele, 859 A.2d 788, 791 (Pa. Super. 2004), appeal denied, 872 A.2d 1199 (Pa. 2005) (table).

A petition to set aside a sheriff’s sale is based on equitable principles. National Penn Bank v. Shaffer, 672 A.2d 326, 329 (Pa. Super. 1996).

“The burden of proving circumstances warranting the exercise of the court's equitable powers is on the petitioner, and the request to set aside a sheriff's sale may be refused due to insufficient proof to support the allegations in the petition.” Kaib v. Smith, 684 A.2d 630, 631 (Pa. Super. 1996) (internal citations omitted).

Sheriff’s sales have been set aside where the validity of the sale proceedings is challenged, a deficiency pertaining to the notice of the sale exists, or where misconduct occurs in the bidding process. Blue Ball National Bank v. Balmer, 810 A.2d 164, 167 (Pa. Super. 2002), appeal denied, 820 A.2d 702 (Pa. 2003) (table).

The appellate court will not reverse the trial court's decision absent a clear abuse of discretion. Kaib, supra.

nurses - license - crime - moral turpitude

Dwumaah v. State Board of Nursing - Cmwlth. Court - August 6, 2010 - unreported memorandum opinion



http://www.pacourts.us/OpPosting/Cwealth/out/2234CD09_8-6-10.pdf



Nursing license suspended because of conviction of crimes involving moral turpitude and immoral conduct, 63 P.S. § 224(a)(5) and (9), to wit, theft of public monies.

child abuse - expungement - hearsay - A.Y. case

Crawford Co. CYS v. DPW - Cmwlth Court. - August 6, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/2372CD09_8-6-10.pdf

ALJ did not commit an error of law by refusing to give any evidentiary weight to a typewritten transcript of an interview with the child victim that was not supported by an audio or video recording, under guidelines concerning hearsay set out in A.Y. v. Department of Public Welfare, 537 Pa. 116, 641 A.2d 1148 (1994). See 42 Pa. C.S. §5986.

social security - exempt funds - bankruptcy

In re Carpenter - 8th Cir. - July 30, 2010


http://www.ca8.uscourts.gov/opndir/10/07/092897P.pdf


Bankrupt's lump sum payment from the Social Security Administration (SSA) was exempt and should not be included in his bankruptcy estate, under 42 U.S.C. § 407 (“[N]one of the moneys paid . . . under this [Social Security Act] shall be subject to . . . the operation of any bankruptcy or insolvency law.”).


The court rejected the argument that the social security proceeds were property of the estate pursuant to 11 U.S.C. § 541 (including “all legal or equitable interests of the debtor in property as of the commencement of the case,” and not excluding social security payments).

__._,_.___

child abuse - "person responsible for child's welfare"

Westmoreland Co. CYS v. DPW - Cmwlth. Court - July 29, 2010 - unreported memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/2522CD09_7-29-10.pdf


The court held that the ALJ erred in holding an alleged perpetrator of child abuse was not a "person responsible for the child's welfare," as defined in 23 Pa. C.S. § 6303(a), where the minor child was, in fact under the accused's "temporary care, supervision and control" of the accused "in lieu of parental care, supervision and control," in spite of the minor child's false statement to her parents about being with a friend rather than the accused.


The court held that "there is no requirement that a person responsible have been 'entrusted' with this responsibility, so the deception of [the minor's] parents as to her whereabouts is not relevant." It was sufficient that the accused was, in fact, in the position of a "person responsible for the child's welfare."

admin. law - petition for review - amendment - time

Edwards v. UCBR - Cmwlth. Court - July 29, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2100CD09_7-29-10.pdf


After a petition for review is filed, the appeal proceeds directly to briefs on the merits, where clarification and detailed analysis of the questions will certainly be made. Thus, once the time for filing a petition for review has expired, the filing of an amended petition is of no import. To the extent it would add additional issues, it is improper; to the extent it does not, it is surplusage.

child abuse - expungement - discovery

Northumberland Co., CYS - DPW - Cmwlth. Court - July 29, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1799CD09_7-29-10.pdf


The Court affirmed DPW's order directing CYS to comply with the alleged perpetrator's request for production of all documentation, including medical records and films of the child, on which CYS' expert witness relied in his report and will rely at the hearing


It reversed DPW's decision denying the alleged perpetrator's request for production of the report of CYS' expert witness.


It affirmed the order to the extent that it denied the request that DPW produce other information in the investigatory file.

Concerning the right of the alleged perpetrator to the information, the court said that

It is undisputed that as a perpetrator of child abuse named in the indicated report, S.C. meets the definition of a "subject of the report." Under the plain and unambiguous language in 23 Pa. C.S. sec. 6340(b), therefore, S.C. is entitled to receive a copy of all information contained (1) in the Statewide central register or (2) in any report filed pursuant to Section 6313, subject to the restriction under Section 6340(c) as to revelation of the identity of the person who made the reports. . . .When [all of the relevant provisions of the CPSL] are construed in conjunction with the confidentiality provision in Section 6339 of the Law and the exception for a subject of the report in Section 6340(b), the Law clearly permits the subject of the report to receive all information contained in the reports filed with the county agency, including any accompanying photographs, X-rays and medical tests.

There is, however, a significant limitation to this apparent very broad grant. While the

Law clearly permits the subject of the report to receive all information contained in the reports filed with the county agency, including any accompanying photo-graphs, X-rays and medical tests.[23 Pa. C.S.] Section 6340(b) plainly and unambiguously limits the release of information to a subject of the report to that maintained in the Statewide central register or in any report filed pursuant to Section 6313. Consequently, S.C. is not entitled to receive any other information in the county agency's investigatory file. [emphasis added]

In discussing whether the case involved the appeal of a collateral order, the court noted the importance of the interests in this case:

Under Article I, Section 1 of the Pennsylvania Constitution, Pa. CONST. art.1, § 1, an individual has an "inherent and indefeasible" right to protect his or her reputation. In Pennsylvania, therefore, reputation is a fundamental interest which cannot be abridged without compliance with constitutional standards. R.H.S. v. Allegheny County Dep't of Human Servs., Office of Mental Health, 936 A.2d 1218 (Pa. Cmwlth. 2007). The discovery issue raised in these appeals involves the constitutionally protected reputation interest of an individual accused of child abuse and the competing interest of the agency in maintaining the confidentiality of information in its possession. The Court is also asked to decide the validity of a provision of the Department's regulations. Resolution of these issues affects not only the parties in this case but also all other litigants in expungement proceedings. Hence, the Bureau's order satisfies the second element of a collateral order.

debt collection - FDCPA - letter from mortgage servicer was "in connection with collection of debt"

Gburek v. Litton Loan Servicing - 7th Cir. - July 27, 2010


http://www.ca7.uscourts.gov/tmp/ZR0QHJX5.pdf


Generally speaking, a communication from a debt collector to a debtor is not covered by the FDCPA unless it is made “in connection with the collection of any debt.” FDCPA §§ 1692c, 1692e. Defendant's offers to participate in loan-workout was made “in connection with” debt collection efforts, even though they did not contain an explicit demand for payment.


The mortgage was in default, and the text of the letters indicate they were sent to induce the homeowner to settle her mortgage-loan debt in order to avoid foreclosure. The complaint thus sufficiently alleges communications that were “sent in connection with an attempt to collect a debt,” Ruth v. Triumph P’ships, 577 F.3d 790, 798 (7th Cir. 2009), and were in violation of the FDCPA.


Neither the 7th Circuit nor any other has established a bright-line rule for determining whether a communication from a debt collector was made in connection with the collection of any debt. However, the court cited three of its cases that is said established that "the absence of a demand for payment is just one of several factors that come into play in the commonsense inquiry of whether a communication from a debt collector is made in connection with the collection of any debt. The nature of the parties’ relationship is also relevant, as are a "communication made specifically to induce the debtor to settle her debt," and the payment status of the account.

admin. law - regulation v. statement of policy

Northwestern Youth Services v. DPW - Cmwlth. Court - July 23, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/386MD09_7-23-10.pdf


DPW Bulletins were held to be invalid, since

- they purported to establish a "binding norm" and "unambiguously mandate" certain actions and results, but
- DPW did not go throught the required procedures to get them adopted, under the Commonwealth Documents Law, 45 P.S. sec. 1102 et seq.


The bulletin imposed statewide mandatory requirements of CAOs and providers concerning residential placement services.


The analysis considered that

- the plain language of the bulletins was mandatory, using words like "binding" and "mandatory."
- the bulletins limited DPW's discretion.


The determination of whether an agency’s pronouncement is an unpromulgated regulation is a question of law. Eastwood Nursing & Rehabilitation Center v. DPW, 910 A.2d 134, 141 (Pa. Cmwlth. 2006), appeal denied, 592 Pa. 791, 927 A.2d 626 (2007). If an agency fails to properly promulgate a regulation in accordance with the CDL, we will declare the pronouncement a nullity. Borough of Bedford v. DEP, 972 A.2d 53, 62 (Pa. Cmwlth. 2009) (en banc).


Our Supreme Court has explained that an agency pronouncement constitutes a regulation when it purports to create a “binding norm”: “The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings…. A properly adopted substantive rule establishes a standard of conduct which has the force of law…. A general statement of policy, on the other hand, does not establish a ‘binding norm’…. A policy statement announces the agency’s tentative intentions for the future.” Pennsylvania Human Relations Commission v. Norristown Area School District, 473 Pa. 334, 350, 374 A.2d 671, 679 (1977) (citation omitted). “Statements of policy are agency pronouncements that declare [the agency’s] future intentions but which are applied prospectively on a case-by-case basis and without binding effect.” Borough of Pottstown v. Pennsylvania Municipal Retirement Board, 551 Pa. 605, 610 n.8, 712 A.2d 741, 743 n.8 (1998) (emphasis in original). A statement of policy also tracks the language of a statute and does not expand on its plain meaning. Bedford, 972 A.2d at 64.


To determine whether an agency has attempted to establish a binding norm, we must consider: (1) the plain language of the enactment; (2) the manner in which the agency implements it; and (3) whether it restricts the agency’s discretion. Cash America Net of Nevada, LLC v. Commonwealth, 978 A.2d 1028, 1033 (Pa. Cmwlth. 2009) (en banc).