Walnut Street Associates v. Brokerage Concept, Inc. - Pa. Supreme Court - May 13, 2011
http://www.pacourts.us/OpPosting/Supreme/out/J-57-2010mo.pdf
Restatement (Second) of Torts § 772(a) applies in Pennsylvania to preclude an action for tortious interference with contractual relations where it is undisputed that the defendant's interfering statements were truthful.FN1
FN1.
One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other's contractual relation, by giving the third person
(a) truthful information, or
(b) honest advice within the scope of a request for the advice.
Restatement (Second) of Torts § 772 (1979)
Monday, May 16, 2011
Thursday, May 12, 2011
UC - unrepresented claimant - duty of referee to develop record
Bellone v. UCBR - May 11l. 2011, - Cmwlth. Court
The Department of Labor’s regulation describes how a hearing must be conducted:
(a) In any hearing the tribunal may examine the parties and their witnesses. Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties.
34 Pa. Code §101.21(a).
This Court has stated:
The referee has a responsibility, therefore, to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed to ‘insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits.’ … The referee, of course, need not advise a party on evidentiary questions or on specific points of law but must act reasonably in assisting in the development of the necessary facts, and any failure to develop an adequate record must be prejudicial to the claimant and not mere harmless error or else a reversal will not be found. Bennet v. UCBR, 445 A.2d 258, 259-260 (Pa. Cmwlth. 1982) (emphasis, citation and footnote deleted). (quoting Robinson v. UCBR, 431 A.2d 378, 380 (Pa. Cmwlth. 1981)).
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This case is also summarized at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable.
Citing unreported and single-judge Commonwealth Court decisions - 210 Pa. Code § 67.55 (January 1, 2011) http://www.pacode.com/secure/data/210/chapter67/chap67toc.html#67.55 Parties may cite an unreported panel decision of the Commonwealth Court issued after January 15, 2008 for its persuasive value, but not as binding precedent.
Tuesday, May 03, 2011
welfare - reimbursement - delayed wages
Kerr v. DPW - Cmwlth. Court - May 3, 2011
DPW paid a "diversion benefit" to a state employee to compensate him for delayed payment of wages during a state budget impasse. The employee signed a reimbursement agreement. Employee was later fully reimbursed for his work during the period.
The court held that the "diversion benefit" came under 55 Pa. Code §257.24(e)(3) dealing with reimbursement for assistance received for delayed wages. The regulations says:
Delayed wages. Reimbursement is required of assistance granted, pending the receipt of wages not paid on the
normal payday. Wages received when normally due are considered as income to be adjusted to the grant under
Chapter 183 (relating to income). The form for acknowledging reimbursement from delayed wages is Form PA 176-K(Agreement and Authorization to Pay Claim) as set forth in subsection (f).
Section 257.24(e)(3) shows that to establish a valid reimbursement claim against Petitioner, the Commonwealth only needed to prove that: (1) Petitioner was granted public assistance; (2) the assistance was granted pending the receipt of delayed wages; and (3) Petitioner’s household signed the Claim form. The Department met its burden by showing that Petitioner received the $1,767 temporary assistance, that he received this assistance because his wages had been delayed due to the budget impasse, and that Petitioner’s fiancée signed the Claim form.
The court also rejected the claim that the Diversion Program was not part of TANF and thus not subject to TANF reimbursement rules.
Wednesday, April 20, 2011
11th Amendment - immunity - acceptance of state money
http://www.supremecourt.gov/opinions/10pdf/08-1438.pdf
SUPREME COURT OF THE UNITED STATES
SOSSAMON v. TEXAS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 08–1438. Argued November 2, 2010—Decided April 20, 2011
After this Court held that the Religious Freedom Restoration Act of1993 was unconstitutional as applied to state and local governmentsbecause it exceeded Congress’ power under §5 of the Fourteenth Amendment, see City of Boerne v. Flores, 521 U. S. 507, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) pursuant to its Spending Clause and Commerce Clause authority.
RLUIPA targets two areas of state and local action: land–use regulation, RLUIPA §2, 42 U. S. C. §2000cc, and restrictions on the religious exercise of institutionalized persons, RLUIPA §3, §2000cc–1. It also provides an express private cause of action for “appropriate relief against a government,” §2000cc–2(a),including, inter alia, States, their instrumentalities and officers, and persons acting under color of state law, §2000cc–5(4)(A). Petitioner Sossamon, a Texas prison inmate, sued respondents, theState and prison officials, seeking injunctive and monetary relief un-der RLUIPA for prison policies that prevented inmates from attend-ing religious services while on cell restriction for disciplinary infractions and that barred use of the prison chapel for religious worship.Granting respondents summary judgment, the District Court held that sovereign immunity barred Sossamon’s claims for monetary re-lief.
The Fifth Circuit affirmed, holding that the statutory phrase “appropriate relief against a government” did not unambiguously notify Texas that its acceptance of federal funds was conditioned on a waiver of sovereign immunity to claims for monetary relief.
Held: States, in accepting federal funding under the Religious Land Use and Institutionalized Persons Act of 2000 do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA. Pp. 4–14.
(a) Sovereign immunity principles enforce an important constitutional limitation on the power of the federal courts. See Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 98. This Court has consistently made clear that “federal jurisdiction over suits against unconsenting States ‘was not contemplated by the Constitu-tion when establishing the judicial power of the United States.’ ” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54. A State, however, may choose to waive its immunity. Clark v. Barnard, 108 U. S. 436, 447–448. The “ ‘test for determining whether [it has done so] is a stringent one.’ ” College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 675. The State’s consent to suit must be “unequivocally expressed” in the relevant statute’s text. Pennhurst, supra, at 99. A waiver “will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Peña, 518 U. S. 187, 192. Pp. 4–6.
(b) RLUIPA’s authorization of “appropriate relief against a government,” is not an unequivocal expression of state consent. Pp. 6–10.
(1) “Appropriate relief” is open-ended and ambiguous about the relief it includes. “Appropriate” is inherently context-dependent.And the context here—where the defendant is a sovereign—suggests, if anything, that monetary damages are not “suitable” or “proper.” See Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U.S. 743, 765. Further, where a statute is susceptible of multipleplausible interpretations, including one preserving immunity, this Court will not consider a State to have waived its sovereign immu-nity. Sossamon’s and Texas’ conflicting plausible arguments aboutwhether immunity is preserved here demonstrate that “appropriaterelief” in RLUIPA is not so free from ambiguity that the Court mayconclude that the States, by receiving federal funds, have unequivocally expressed intent to waive their immunity. Pp. 6–9.
(2) The Court’s use of the phrase “appropriate relief” in Franklin v. Gwinnett County Public Schools, 503 U. S. 60, and Barnes v. Gorman, 536 U. S. 181, does not compel a contrary conclusion. In those cases, where there was no express congressional intent to limit reme-dies available against municipal entities under an implied right ofaction, the Court presumed that compensatory damages were avail-able. Franklin, supra, at 73. But that presumption is irrelevant toconstruing the scope of an express waiver of sovereign immunity,where the question is not whether Congress has given clear directionthat it intends to exclude a damages remedy, but whether it hasgiven clear direction that it intends to include a damages remedy. Pp. 9–10.
(c) Sossamon mistakenly contends that Congress’ enactment of RLUIPA §3 pursuant to the Spending Clause put the States on notice that they would be liable for damages because Spending Clause legislation operates as a contract and damages are always available for abreach of contract. While acknowledging the contract-law analogy,this Court has been clear “not [to] imply . . . that suits under Spending Clause legislation are suits in contract, or that contract-law principles apply to all issues that they raise,” Barnes, supra, at 188, n. 2, or to rely on that analogy to expand liability beyond what would exist under nonspending statutes, much less to extend monetary liability against the States. Applying ordinary contract principles here wouldalso make little sense because contracts with a sovereign are unique: They do not traditionally confer a right of action for damages to enforce compliance. More fundamentally, Sossamon’s implied-contract remedy cannot be squared with the rule that a sovereign immunity waiver must be expressly and unequivocally stated in the relevant statute’s text. Pp. 10–12.
(d) Sossamon also errs in arguing that Texas was put on notice that it could be sued for damages under RLUIPA by §1003 of the Rehabilitation Act Amendments of 1986, which expressly waives state sovereign immunity for violations of “section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance,” 42 U. S. C. §2000d–7. Even if such a residual clause could constitute an unequivocal textual waiver, RLUIPA §3—which prohibits “substantial burden[s]” on reli-gious exercise—is not unequivocally a “statute prohibiting discrimination” within §1003’s meaning. All the statutory provisions enumerated in §1003 explicitly prohibit discrimination; a State might reasonably conclude that the residual clause, strictly construed, covers only provisions using the term “discrimination.” Pp. 12–14.
560 F. 3d 316, affirmed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, GINSBURG, and ALITO, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which BREYER, J., joined. KAGAN, J., took no part in the consideration or decision of the case.
SUPREME COURT OF THE UNITED STATES
SOSSAMON v. TEXAS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 08–1438. Argued November 2, 2010—Decided April 20, 2011
After this Court held that the Religious Freedom Restoration Act of1993 was unconstitutional as applied to state and local governmentsbecause it exceeded Congress’ power under §5 of the Fourteenth Amendment, see City of Boerne v. Flores, 521 U. S. 507, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) pursuant to its Spending Clause and Commerce Clause authority.
RLUIPA targets two areas of state and local action: land–use regulation, RLUIPA §2, 42 U. S. C. §2000cc, and restrictions on the religious exercise of institutionalized persons, RLUIPA §3, §2000cc–1. It also provides an express private cause of action for “appropriate relief against a government,” §2000cc–2(a),including, inter alia, States, their instrumentalities and officers, and persons acting under color of state law, §2000cc–5(4)(A). Petitioner Sossamon, a Texas prison inmate, sued respondents, theState and prison officials, seeking injunctive and monetary relief un-der RLUIPA for prison policies that prevented inmates from attend-ing religious services while on cell restriction for disciplinary infractions and that barred use of the prison chapel for religious worship.Granting respondents summary judgment, the District Court held that sovereign immunity barred Sossamon’s claims for monetary re-lief.
The Fifth Circuit affirmed, holding that the statutory phrase “appropriate relief against a government” did not unambiguously notify Texas that its acceptance of federal funds was conditioned on a waiver of sovereign immunity to claims for monetary relief.
Held: States, in accepting federal funding under the Religious Land Use and Institutionalized Persons Act of 2000 do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA. Pp. 4–14.
(a) Sovereign immunity principles enforce an important constitutional limitation on the power of the federal courts. See Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 98. This Court has consistently made clear that “federal jurisdiction over suits against unconsenting States ‘was not contemplated by the Constitu-tion when establishing the judicial power of the United States.’ ” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54. A State, however, may choose to waive its immunity. Clark v. Barnard, 108 U. S. 436, 447–448. The “ ‘test for determining whether [it has done so] is a stringent one.’ ” College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 675. The State’s consent to suit must be “unequivocally expressed” in the relevant statute’s text. Pennhurst, supra, at 99. A waiver “will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Peña, 518 U. S. 187, 192. Pp. 4–6.
(b) RLUIPA’s authorization of “appropriate relief against a government,” is not an unequivocal expression of state consent. Pp. 6–10.
(1) “Appropriate relief” is open-ended and ambiguous about the relief it includes. “Appropriate” is inherently context-dependent.And the context here—where the defendant is a sovereign—suggests, if anything, that monetary damages are not “suitable” or “proper.” See Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U.S. 743, 765. Further, where a statute is susceptible of multipleplausible interpretations, including one preserving immunity, this Court will not consider a State to have waived its sovereign immu-nity. Sossamon’s and Texas’ conflicting plausible arguments aboutwhether immunity is preserved here demonstrate that “appropriaterelief” in RLUIPA is not so free from ambiguity that the Court mayconclude that the States, by receiving federal funds, have unequivocally expressed intent to waive their immunity. Pp. 6–9.
(2) The Court’s use of the phrase “appropriate relief” in Franklin v. Gwinnett County Public Schools, 503 U. S. 60, and Barnes v. Gorman, 536 U. S. 181, does not compel a contrary conclusion. In those cases, where there was no express congressional intent to limit reme-dies available against municipal entities under an implied right ofaction, the Court presumed that compensatory damages were avail-able. Franklin, supra, at 73. But that presumption is irrelevant toconstruing the scope of an express waiver of sovereign immunity,where the question is not whether Congress has given clear directionthat it intends to exclude a damages remedy, but whether it hasgiven clear direction that it intends to include a damages remedy. Pp. 9–10.
(c) Sossamon mistakenly contends that Congress’ enactment of RLUIPA §3 pursuant to the Spending Clause put the States on notice that they would be liable for damages because Spending Clause legislation operates as a contract and damages are always available for abreach of contract. While acknowledging the contract-law analogy,this Court has been clear “not [to] imply . . . that suits under Spending Clause legislation are suits in contract, or that contract-law principles apply to all issues that they raise,” Barnes, supra, at 188, n. 2, or to rely on that analogy to expand liability beyond what would exist under nonspending statutes, much less to extend monetary liability against the States. Applying ordinary contract principles here wouldalso make little sense because contracts with a sovereign are unique: They do not traditionally confer a right of action for damages to enforce compliance. More fundamentally, Sossamon’s implied-contract remedy cannot be squared with the rule that a sovereign immunity waiver must be expressly and unequivocally stated in the relevant statute’s text. Pp. 10–12.
(d) Sossamon also errs in arguing that Texas was put on notice that it could be sued for damages under RLUIPA by §1003 of the Rehabilitation Act Amendments of 1986, which expressly waives state sovereign immunity for violations of “section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance,” 42 U. S. C. §2000d–7. Even if such a residual clause could constitute an unequivocal textual waiver, RLUIPA §3—which prohibits “substantial burden[s]” on reli-gious exercise—is not unequivocally a “statute prohibiting discrimination” within §1003’s meaning. All the statutory provisions enumerated in §1003 explicitly prohibit discrimination; a State might reasonably conclude that the residual clause, strictly construed, covers only provisions using the term “discrimination.” Pp. 12–14.
560 F. 3d 316, affirmed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, GINSBURG, and ALITO, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which BREYER, J., joined. KAGAN, J., took no part in the consideration or decision of the case.
Tuesday, April 19, 2011
Eleventh Amendment - Ex parte Young, etc.
VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY v. STEWART, COMMISSIONER,
Argued December 1, 2010—Decided April 19, 2011
Together, the Developmental Disabilities Assistance and Bill of RightsAct of 2000 (DD Act) and the Protection and Advocacy for Individualswith Mental Illness Act (PAIMI Act) offer States federal money toimprove, inter alia, medical care for persons with developmental dis-abilities or mental illness. As a condition of funding, a State must establish a protection and advocacy (P&A) system “to protect and advocate [those individuals’] rights.” 42 U. S. C. §15043(a)(1).
A participating State may appoint either a state agency or a private nonprofit entity as its P&A system, but if a state agency it must have authority to litigate and freedom from the control of other state agen-cies or officers. Virginia has appointed an independent state agency, petitioner Virginia Office for Protection and Advocacy (VOPA), authorizing it to litigate to secure disabled individuals’ rights, free of executive-branch oversight; to operate independently of Virginia’s at-torney general; and to employ its own lawyers to sue on its behalf.
While investigating patient deaths and injuries at state mentalhospitals, VOPA asked respondents—state officials in charge of thosehospitals—to produce relevant patient records. Respondents refused,asserting that a state-law privilege shielded the records from disclo-sure. VOPA then filed suit in Federal District Court, seeking a declaration that respondents’ refusal to produce the records violated the DD and PAIMI Acts and an injunction requiring respondents to produce the records and refrain in the future from interfering with VOPA’s right of access. Respondents moved to dismiss on the ground that they are immune from suit under the Eleventh Amendment, but the court held that the suit was permitted by the doctrine of Ex parte Young, 209 U. S. 123, which normally allows federal courts to award prospective relief against state officials for violations of federal law. The Fourth Circuit reversed, finding that Ex parte Young did not apply because the suit was brought by a state agency.
Held: Ex parte Young allows a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same State. Pp. 4–13.
(a) Absent a waiver of sovereign immunity by a State itself or avalid abrogation by Congress, federal courts may not entertain a pri-vate person’s suit against a State. Pp. 4–5.
(b) The doctrine of Ex parte Young, which establishes an importantlimitation on the sovereign-immunity principle, is accepted as necessary to “permit the federal courts to vindicate federal rights.” Pennhurst State School and Hospital v. Halderman, 465 U. S. 89. It rests on the premise that when a federal court commands a state official todo nothing more than refrain from violating federal law, he is not theState for sovereign-immunity purposes. It does not apply “when ‘the state is the . . . party in interest.’ ” Id., at 101. Pp. 5–6.
(c) Entertaining VOPA’s action is consistent with precedent and does not offend the distinctive interests protected by sovereign im-munity. Pp. 6–13.
(1) Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635, held that, in determining the Ex parte Young doctrine’s applica-bility, “a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’ ” Id., at 645. VOPA’s suit satisfies that inquiry. Respondents concede that the ac-tion would be proper were VOPA a private organization rather than a state agency. The “general criterion for determining when a suit is in fact against the sovereign is the effect of the relief sought,” Pennhurst, supra, at 107, not who is bringing the lawsuit. This Court ap-plied that criterion in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, which held that an Indian Tribe could not invoke Ex parte Youngto bring what was essentially a quiet title suit that would “extinguish[Idaho’s] control over . . . lands and waters long deemed . . . an integral part of its territory.” Id., at 282. Respondents have advanced noargument that the relief sought here threatens a similar invasion of Virginia’s sovereignty. Pp. 7–9.
(2) Respondents claim that a State’s dignity is diminished when a federal court adjudicates a dispute between its components. But a State’s stature is not diminished to any greater degree when its ownagency sues to enforce its officers’ compliance with federal law than when a private person does so. Moreover, VOPA’s power to sue stateofficials is a consequence of Virginia’s own decision to establish a public P&A system. Not every offense to a State’s dignity constitutesa denial of sovereign immunity. The specific indignity against which sovereign immunity protects is the insult to a State of being haledinto court without its consent; that does not occur just because a suithappens to be brought by another state agency. Pp. 9–11.
(3) The apparent novelty of this suit is not likely a consequenceof past constitutional doubts. In order to invoke the Ex parte Youngexception, a state agency needs both a federal right that it possesses against its parent State and authority to sue state officials to enforcethat right, free from any internal state-government veto; such conditions rarely coincide. In any event, the principles undergirding the Ex parte Young doctrine support its extension to actions of this kind. Pp. 12–13.
568 F. 3d 110, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which KENNEDY, THOMAS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. KENNEDY, J., filed a concurring opinion, in which THOMAS, J., joined. ROBERTS, C. J., filed a dissenting opinion, in which ALITO, J., joined. KAGAN, J., took no part in the consideration or decision of the case.
Monday, April 18, 2011
UC - voluntary quit - good cause - emotional health - improper Board reversal of referee - Treon
Fiedler v. UCBR - Cmwlth. Court - April 18, 2011
Claimant had good cause to quit his job. He was suffering emotional difficulties due to the death of one of his children and needed to be nearer to the rest of his family for support.. Beachem v. UCBR, 760 A.2d 68, 71 (Pa. Cmwlth. 2000).
Claimant took reasonable measures to preserve his employment. Based on his testimony, the referee found that “[t]he claimant shared with the employer the emotional difficulties he was having trying to cope with the loss of his child.” However, the UCBR, without comment, disregarded this referee’s finding.
In Treon v. UCBR, 499 Pa. 455, 461, 453 A.2d 960, 962 (1982), our Supreme Court stated that if the UCBR determines that particular findings of the referee are inconsistent, incredible or unsupported by the evidence, then the UCBR must indicate such finding. “The [UCBR] may not, however, simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its reasons for doing so.” Id. When the UCBR does so, the appellate court may reinstate the finding. Id. Thus, we reinstate the referee’s finding that Claimant shared his difficulties with Employer, and we conclude that Claimant took reasonable efforts to preserve his employment.
Friday, April 15, 2011
UC - willful misconduct - no substantial evidence
Francois v. UCBR - Cmwlth. Court - April 13, 2011 - unreported memorandum decisions http://www.pacourts.us/OpPosting/Cwealth/out/1059CD10_4-13-11.pdf Where the only evidence of claimant's alleged violation of the employer no-call/no-show policy was the claimant testimony, in which she denied any violations, substantial evidence did not support the Board's finding of willful misconduct. The court remanded the case, because the Board made an "invalid or inadequate finding of fact."
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This summary and others are available at the PLAN Legal Updates http://planupdate.blogspot.com/, which is searchable.
Unreported decisions, even although not binding precedent, can be cited for their persuasive value , pursuant to 210 Pa. Code § 67.55 http://www.pacode.com/secure/data/210/chapter67/chap67tochtml#67.55.
admin. law - petition for review - specificity - Deal
http://pabulletin.com/secure/data/vol41/41-16/646.html
* * * * *
THE COURTS
Title 210—APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
210 PA. CODE CH. 15
Amendment of Explanatory Comment to Rule 1513 of the Rules of Appellate Procedure; No. 210 Appellate Procedural Rules Doc.
41 Pa.B. 1999 - Saturday, April 16, 2011
Order
Per Curiam
And Now, this 31st day of March, 2011, upon the recommendation of the Appellate Court Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. No. 103(a)(3) in the interests of justice and efficient administration:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the Explanatory Comment to Rule 1513 of the Pennsylvania Rules of Appellate Procedure is amended in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective in thirty days.
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE II. APPELLATE PROCEDURE
CHAPTER 15. JUDICIAL REVIEW OF GOVERNMENTAL DETERMINATIONS
PETITION FOR REVIEW
Rule 1513. Petition for Review.
Explanatory Comment—2011
With respect to the general statement of objections in an appellate jurisdiction petition for review required in subdivision (d)(5), see Maher v. Unemployment Comp. Bd. of Review, 983 A.2d 1264, 1266 (Pa. Cmwlth. 2009).
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Here is a link to Maher http://www.pacourts.us/OpPosting/Cwealth/out/1843CD08_10-27-09.pdf
The Court in Maher affirms the decisions in Deal v. Unemployment Compensation Board of Review, 878 A.2d 131 (Pa. Cmwlth. 2005) and Patla v. UCBR, 962 A.2d 724 (Pa. Cmwlth. 2008), that the Petition for Review must do more than re-state the statutory language about appeals. It must articulate some specific challenge to the UCBR decision.
Thursday, April 14, 2011
UC- willful misconduct - violation of work rule - no proof of "willful"
McBride v. UCBR - Cmwlth. Court - april 14, 2011 - unreported memorandum decision
Willful misconduct has been judicially defined as that misconduct which must evidence the wanton and willful disregard of employer's interest, the deliberate violation of rules, the disregard of standards of behavior which an employer can rightfully expect from his employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional substantial disregard for the employer's interest, or the employee's duties and obligations. Frumento v. UCBR, 466 Pa. 81, 351 A.2d 631 (1976). Whether an employee's conduct constituted willful misconduct is a matter of law subject to this Court's review. Miller v. UCBR, 405 A.2d 1034 (Pa. Cmwlth. 1979). The burden of proving willful misconduct rests with the employer. Brant v. UCBR, 477 A.2d 596 (Pa. Cmwlth. 1984).
Where, as is here, a claimant is discharged for violation of a work rule or policy, the employer must establish both the existence of the reasonable work rule and its violation. Brunson v. UCBR, 570 A.2d 1096 (Pa. Cmwlth. 1990). Where the employer proves the existence of a rule, the reasonableness of the rule and the fact of its violation, the burden shifts to the claimant to prove that she had good cause for her action. Guthrie v. UCBR, 738 A.2d 518 (Pa. Cmwlth. 1999).
An employer “must present evidence indicating that the conduct was of an intentional and deliberate nature” in order to prove willful misconduct. Grieb v. UCBR, 573 Pa. 594, 600, 827 A.2d 422, 426 (2003). The deliberate violation of an employer’s rules or policies is generally considered to be willful misconduct. Navickas v. UCBR, 567 Pa. 298, 304, 787 A.2d 284, 288 (2001). Critically, to be disqualifying, the employee’s violation of a rule must be knowing and deliberate. An inadvertent rule violation is not willful misconduct. BK Foods, Inc. v. UCBR, 547 A.2d 873 (Pa. Cmwlth. 1988).
. Employer failed to satisfy its burden of establishing a prima facie case of willful misconduct in light of the facts and totality of the circumstances. Employer did not offer any documents or testimony, during the three valid hearings conducted before the Referee, establishing the existence of a reasonable work policy/rule and a deliberate violation by Claimant of Employer’s rules or policies. The Board found, presumably based on Claimant’s testimony, that Claimant was aware of Employer’s policies and that Claimant violated those policies.
However, Claimant did not testify that she deliberately violated any of Employer’s policies. Claimant maintained throughout this matter, beginning with her appeal letter and ending with her testimony, that she did not commit any of the alleged violations with the deliberate intent of committing willful misconduct. Moreover, Employer offered no evidence to refute Claimant’s assertions.
In making its findings, the Board specifically credited Employer’s testimony that Claimant’s actions were in violation of Employer’s policies. The Board also resolved all conflicts in the testimony in favor of Employer and concluded that Claimant’s behavior rose to the level of willful misconduct.
Again, Employer did not present any testimony regarding Claimant’s actions nor did Employer present any specific testimony or evidence that its policies were reasonable and that Claimant’s actions were a deliberate or intentional violation of Employer’s policies.
Accordingly, we have no choice but to conclude that Employer failed to meet its burden that Claimant deliberately violated its reasonable policies and that the Board’s findings, that purportedly support the Board’s conclusion that Claimant committed willful misconduct, are not supported by substantial evidence.
The Board’s order is reversed.
federal courts - preliminary injunction
Hynoski v. Columbia Co. Redevelopment Authority - MD Pa. - March 11, 2011
The requirements for preliminary injunctive relief are well settled. In order to obtain this extraordinary remedy, the moving party must establish that: (1) there is a reasonable probability of success on the merits, (2) irreparable injury will result without injunctive relief, (3) granting the injunction will avoid a comparably greater hardship than denying it, and (4) the injunction is in the public interest. See Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d Cir. 2002); BP Chems., Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 263 (3d Cir. 2000).
While each factor need not be established beyond doubt, they must combine to show the immediate necessity of injunctive relief. . . . (“[T]he degree of likelihood of success is not determinative. Rather it must be considered and balanced with the comparative injuries of the parties.”). If, however, the moving party fails to show both a reasonable probability of success on the merits and irreparable injury, then the court must deny preliminary injunctive relief. In re Arthur Treacher’s Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Chamberlain, 145 F. Supp. 2d 621, 625 (M.D. Pa. 2001).
Reasonable Probability of Success on the Merits -- To establish a reasonable probability of success on the merits, the moving party must produce sufficient evidence to satisfy the essential elements of the underlying cause of action. See Punnett v. Carter, 621 F.2d 578, 582-83 (3d Cir. 1980). This requires examination of the legal principles controlling the claim and potential defenses available to the opposing party. See BP Chems., 229 F.3d at 264. However, the mere possibility that the claim might be defeated does not preclude a finding of probable success if the evidence clearly satisfies the essential prerequisites of the cause of action. Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 173 (3d Cir. 2001)
Irreparable Injury - Irreparable injury is the sine qua non of preliminary injunctive relief. It is harm of such an irreversible character that prospective judgment would be inadequate to make the moving party whole. See Anderson v. Davila, 125 F.3d 148, 163 (3d Cir. 1997); Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989); Goadby v. Philadelphia Elec. Co., 639 F.2d 117, 121 (3d Cir. 1981) (“This court has repeatedly emphasized the elementary principle that a preliminary injunction shall not issue except upon a showing of irreparable injury.” (internal quotation marks omitted)). The mere risk of injury is not sufficient to meet this standard. Rather, the moving party must establish that the harm is imminent and probable. Anderson, 125 F.3d at 164; 11A WRIGHT ET AL., supra, § 2948.1. Harm that may be contained effectively only through immediate injunctive relief is properly deemed “irreparable.” Instant Air Freight, 882 F.2d at 801. ).
federal courts - 11th Amendment immunity
Hynoski v. Columbia Co. Redevelopment Authority - MD Pa. - March 11, 2011
Suit v. DCED involving eminent domain in Centralia, Pa., home of the eternal mine fire. One landlowner brought sec. 1983 action based on alleged equal protection violation, claiming improper different treatment of his situation from that of another landowner.
The Eleventh Amendment states: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.U.S. CONST. amend. XI.
It provides a jurisdictional bar to private federal litigation against a state and its agencies. Hans v. Louisiana, 134 U.S. 1, 15-16 (1890) (holding that the Eleventh Amendment bars citizens from bringing suit against their own state in federal court); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000); Lombardo v. Pennsylvania, 540 F.3d 190, 194-95 (3d Cir. 2008). The Commonwealth of Pennsylvania is not a defendant in the matter sub judice; nevertheless, DCED, as an arm of the Commonwealth, is entitled to the protections afforded to the Commonwealth by the Eleventh Amendment. See Chittister v. Dep’t of Cmty. & Econ. Dev., 226 F.3d 223, 226 (3d Cir. 2000) (noting that the parties in that case did not dispute that DCED “is within the protection of the Eleventh Amendment”), abrogated in part on other grounds by Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003); see also Des-Ogugua v. Pa. Dep’t of Cmty. & Econ. Dev., No. 1:06-CV-0721, 2006 WL 2950481, at *1 (M.D. Pa. Oct. 16, 2006) (finding that DCED enjoys “Eleventh Amendment immunity from suit”).
Eleventh Amendment sovereign immunity is subject to three basic exceptions: (1) Congress may specifically abrogate a state’s sovereign immunity by exercising its enforcement power under the Fourteenth Amendment; or (2) a state may waive its sovereign immunity by consenting to suit; or (3) under Ex Parte Young, a state official may be sued in his/her official capacity for prospective injunctive relief. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999); Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002); Hindes v. FDIC, 137 F.3d 148, 165 (3d Cir. 1998).
Plaintiffs’ § 1983 claims against DCED do not fall under any of these exceptions to Eleventh Amendment immunity. First, it is well settled that Congress did not intend to abrogate the states’ sovereign immunity by enacting § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66(1989). Second, Pennsylvania has unequivocally withheld its consent to such suits.See 42 PA. CONS. STAT. § 8521(b); see also Lombardo, 540 F.3d at 196 n.3; Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). Third, the Ex Parte Young exception to the Eleventh Amendment’s jurisdictional bar is inapplicable to plaintiffs’ claim against DCED; the exception applies only to officials, not to state agencies. See Ex Parte Young, 209 U.S. 123 (1908). The court therefore concludes that DCED enjoys sovereign immunity.5
Steven Fishman [chief counsel at DCED], who is being sued in his official capacity, also argues that he enjoys immunity from plaintiffs’ claims under the Eleventh Amendment; however, he fails to address the doctrine of Ex Parte Young. The Third Circuit has opined that “a state official sued in his official capacity for prospective injunctive relief is a person within section 1983, and the Eleventh Amendment does not bar such a suit.” Hindes v. FDIC, 137 F.3d 148, 165 (3d Cir. 1998). Insofar as plaintiffs seek prospective injunctive relief against Fishman, a state official sued in his official capacity, the court rejects Fishman’s sovereign immunity defense.
federal courts - sec. 1983 - statute of limitations
Hynoski v. Columbia Co. Redevelopment Authority - MD Pa. - March 11, 2011
The statute of limitations for an action under 42 U.S.C. § 1983 corresponds to the local statute of limitations for tort actions seeking recovery for personal injuries. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985); Reitz v. County of Bucks, 125 F.3d 139, 143 (3d Cir. 1997).
Hence, Pennsylvania’s two - year statute of limitations for personal injury actions governs § 1983 claims brought in federal court in Pennsylvania. See 42 PA. CONS. STAT. § 5524; see also Sameric Corp. of Del. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998) (“In actions under 42 U.S.C. § 1983, federal courts apply the state’s statute of limitations for personal injury.”).
Federal law controls the determination as to when a § 1983 claim accrues. See Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998); Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991). Under federal law, “[a] section 1983 cause of action accrues when the plaintiff knew or should have known of the injury upon which its action is based.” Sameric, 142 F.3d at 599.
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malpractice - statute of limitations - occurrence rule v. discovery rule
Knopick v. Connelly, et al. - 3d Cir. - April 13, 2011
Discovery rules applied under the facts of the case. Lengthy and detailed analysis of the tolling issue for legal malpractice claim in Pennsylvania, as well as when it is appropriate to apply to discovery rule (when the harm was discovered) v. occurrence (the act that caused the harm).
Wednesday, April 13, 2011
admin. law - statutory construction - no deference to agency expertise
In Re: Petition for Formation of Independent School District - Cmwlth. Court - April 13, 2011
http://www.pacourts.us/OpPosting/Cwealth/out/2210CD09_4-13-11.pdf Courts will defer to an agency’s expertise where the agency evaluates and resolves conflicts in the evidence, particularly where the evidence is technical in nature. Yi v. State Board of Veterinary Medicine, 960 A.2d 864, 870 (Pa. Cmwlth. 2008). However, “the meaning of [a] statute is a question of law for the court.” Connecticut General Life Insurance Company v. Pennsylvania Life and Health Insurance Guaranty Association, 866 A.2d 465, 467 (Pa. Cmwlth. 2005). Courts can defer to an agency’s interpretation of the statute where that statute is ambiguous or relates to a complex subject, such as a technical tax question. Tool Sales & Service Co., Inc. v. Board of Finance and Revenue, 536 Pa. 10, 22, 637 A.2d 607, 613 (1993). Otherwise, the agency’s interpretation “carries little weight,” especially where it is wrong. Office of Administration v. Pennsylvania Labor Relations Board, 591 Pa. 176, 190 n.11, 916 A.2d 541, 549 n.11 (2007). The Secretary’s “expertise” is irrelevant to the statutory construction issue.
abuse - expungement - presumption
B.B. (now B.L.) v. DPW - Cmwlth. Court, April 13, 2011
The presumption in 23 Pa.C.S. 6381(d) -- that the "parent or other person" responsible for a child’s welfare was the person who the child abuse, and only the abuse itself had to be established in the case of an indicated child abuse by prima facie evidence -- cannot be applied where more than one individual was entrusted with a child’s care during the period in which medical evidence shows the injuries were inflicted.
On its own, the language of Section 6381(d) resolves the case. In sec. 6381(d), the General Assembly in setting forth the presumption refers only to the “parent or other person” responsible for the welfare of the child. 23 Pa.C.S. §6381(d). The clear use of the singular tense therein cannot be read as an accident, and cannot therefore be read to apply to any situation in which the presumption is sought to be applied to more than one “parent or person.”
Accordingly, we hold that the only reasonable statutory construction of Section 6381(d) leads to the sole conclusion that it is applicable only to one caregiver, absent some additional evidence that would serve to eliminate from consideration all but one caregiver (or, additional evidence that would implicate more than one or all caregivers)
debt collection - time-barred debt
Huertas v. Galaxy Asset Management, Inc. - 3d Cir. - April 11, 2011 http://www.ca3.uscourts.gov/opinarch/102532p.pdf In a case dependent partly on N.J. law, the court held that an attempt to a debt time-barred by the statute of limitations does not violation the Fair Debt Collection Practices Act, where the collection letter did not threaten litigation. The court noted that -- - Under NJ law, a debt obligation is not extinguished by the expiration of the statute of limitations, even though the debt is ultimately unenforceable in a court of law. This is also apparently the rule in Pennsylvania. See Cohen v. Keller, 90 A. 463 (Pa. 1914). - the majority of courts has held that when the expiration of the statute of limitations does not invalidate a debt, but merely renders it unenforceable, the FDCPA permits a debt collector to seek voluntary repayment of the time-barred debt so long as the debt collector does not initiate or threaten legal action in connection with its debt collection efforts (listing cases on both sides of the issue). - despite the above, a collection letter that threatens litigation may violate the FDCPA. The letter in this case did not, even under the "least sophisticated debtor" standard.
Tuesday, April 12, 2011
foreclosure - deficiency judgment
The Home Savings and Loan v. Irongate Ventures - Superior Court - April 8, 2011
Deficiency judgment action must be brought "in the matter in which the judgment was entered." 42 Pa. C.S. 8103(a). In this case, there were two judgments -- a) money judgment by confession against corporate landowner; b) foreclosure against against same corporate landowner.
Property sold by sheriff's sale in the deficiency case. However, Plaintiff brought deficiency action in money judgment case, not foreclosure case.
Held, deficiency action dismissed because not brought "in matter in which the judgment was entered." Attempt to set deficiency in the money judgment case took place beyond six months from the date of the sheriff's sale. If the judgment creditor fails to file a § 8103(a) petition to fix the fair market value of the property within six months of the sheriff’s sale, then the debtor may file a petition to have the judgment marked satisfied, released and discharged as a matter of law. 42 Pa.C.S.A. § 8103(d); First Nat. Consumer Discount Co. v. Fetherman, 527 A.2d 100, 105 (Pa. 1987).
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burden of proof and construction in deficiency cases
The judgment creditor must carry the burden to demonstrate its compliance with the Deficiency Judgment Act.” First Federal Sav. & Loan Ass'n of Carnegie v. Keisling, 746 A.2d 1150, 1153-1154 (Pa. Super. 2000) (citations omitted). Moreover, the Deficiency Judgment Act is to be liberally interpreted in favor of judgment debtors. Id.
“The objective of the Deficiency Judgment Act is to relieve a debtor from further personal liability to the judgment creditor when the real property taken by the judgment creditor on an execution has a fair market value on the date of sale sufficient so that the judgment creditor can dispose of the property to others without a further loss.” Horbal v. Moxham Nat. Bank, 697 A.2d 577, 582 (Pa. 1997).
constitutionality of Deficiency Judgment Act
N.B. We note that in Commonwealth v. Nieman, 5 A.3d 353, (Pa. Super. 2010 this Court, en banc, held that the Deficiency Judgment Act, 42 Pa.C.S.A. § 8103, was unconstitutional. However, by order dated October 19, 2010, upon the Petition to Intervene of the General Assembly of the Commonwealth of Pennsylvania, this Court granted a stay of the decision in Nieman, retroactive to September 8, 2010, and pending review by the Pennsylvania Supreme Court.
Friday, April 08, 2011
name change - minor - standing - best interest
In re Change of name of EML to EMS - Superior Court - April 7, 2011 http://www.pacourts.us/OpPosting/Superior/out/S80030_10.pdf Fifteen y/o minor had standing to ask for change of his surname from that of biological parents to long-time (13+ years) foster parents. Name change granted as being in minor's best interests.
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EAJA - atty. fees - experienced attorney; special circumstances; who gets the award
Burt v. Astrue - ED Pa. - April 6, 2011 http://www.paed.uscourts.gov/documents/opinions/11D0390P.pdf It is well-settled that where an attorney is experienced in the social security field in general or in the particulars of the case at issue, the Commissioner is entitled to “additional efficiency.” Highsmith v. Barnhart, No. CIV.A.04-801, 2006 WL 1582337, at *6 (E.D. Pa. June 7, 2006). Therefore, where arguments on appeal of such a case are verbatim recitations of arguments previously made during administrative proceedings, attorney’s fees may be reduced. Id. By the same token, however, when an experienced social security attorney has not previously represented this client during administrative proceedings, the attorney is not as well-versed in the particulars of the case and thus may justifiably need additional time. See Forsythe v. Astrue, No. CIV.A.07-266, 2008 WL 4683436, at *5 (W.D. Pa. Oct. 22, 2008); see also Sommerville v. Astrue, 555 F. Supp. 2d 1251, 1254 (D. Kan. 2008) (declining to reduce fees on ground that “this court will not disregard time honestly spent working on the brief simply because the attorney preparing it is experienced”). While no court has, or could, establish a broad-sweeping rule as to what constitutes a reasonable amount of time for briefing a social security appeal, several cases have offered helpful standards. For example, in Walton v. Massanari, 177 F. Supp. 2d 359 (E.D. Pa. 2001), the court found – citing to a prior Third Circuit decision – that two to three hours per page was reasonable. Id. at 364-65. Similarly, in Neal v. Astrue, 741 F. Supp. 2d 729 (W.D. Pa. 2010), the court found that twenty-eight and a half hours for a twenty-six page brief on summary judgment was not unreasonable or excessive. Id. at 722-23. Finally, in Wirth v. Barnhart, 325 F. Supp. 2d 911 (E.D. Wis. 2004), the court found thirty hours spent on a main brief by experienced social security counsel to be reasonable, even where the applicable law was well-settled. Id. at 915. In the present matter, Plaintiff’s counsel submitted an almost thirty-page brief in support of the Motion for Summary Judgment. Approximately nine pages of that brief were copied verbatim from other briefs filed by counsel in other social security cases in which he was counsel of record. Nonetheless, the Court does not find that such duplication warrants any fee deduction for several reasons. First, the duplicated sections were simply cut-and-paste versions of developed and wellsettled law. Almost any efficient and experienced attorney takes advantage of previously-written statements of law or standards of review when the law has been neither superseded nor substantively altered. Indeed, the Court notes that Commissioner’s counsel is frequently guilty of the same efficiencies.
Second, the brief clearly reflects counsel’s significant effort in scouring the administrative record to provide detailed factual support on six separate legal issues, highlighting alleged deficiencies in the administrative decision. While the legal issues themselves were not necessarily complex, the identification of issues under the relevant principles and operative facts required counsel’s knowledge and experience – a point which the Commissioner does not dispute.
Third, counsel’s task was complicated by his non-involvement in the lengthy prior administrative proceedings, thereby requiring him to advocate in unfamiliar territory. Fourth, although not succeeding on all issues, counsel clearly obtained a favorable result for his client.
Finally, even subtracting the nine duplicated pages from the total, Plaintiff’s counsel provided at least twenty-one new pages of briefing, meaning that he spent just over one hour per page. Under the standards within the Third Circuit, such time is clearly not excessive or unreasonable. Accordingly, the Court declines to deduct any of these requested fees.
No Special Circumstance - There is an extensive discussion of the issue of fees when plaintiff has opposed the Commr's motion for remand. In this case, the court held that Plaintiff's counsel was justified in opposing soc. sec. motion for remand because of (a) the Commissioner’s failure to immediately recognize the defect in the second ALJ’s decision; (b) the reasonableness of Plaintiff’s argument that the law of the case required reversal; and (c) the extreme delay of more than ten years justified Plaintiff’s opposition to remand. Accordingly, the Court declines to exclude from Plaintiff’s attorneys fee award the hours spent on that effort.
Who Obtains the Award - The final argument in the Commissioner’s brief urges that the award of EAJA fees should be made payable to Plaintiff and not her counsel. The Court agrees. Section 2412(d)(1)(A) of 28 U.S.C. states that courts “shall award to a prevailing party . . . fees and other expenses . . . incurred by that party.” Id. In the recent case of Astrue v. Ratliff, the United States Supreme Court definitively held that “the term ‘prevailing party’ in fee statutes is a ‘term of art’ that refers to the prevailing litigant.” 130 S. Ct. 2521, 2525 (2010). In turn, it rejected any argument that an attorney is directly entitled to an award of fees and concluded that “the statute’s plain text . . . ‘awards’ the fees to the litigant, and thus subjects them to a federal administrative offset if the litigant has outstanding federal debts.” Id. at 2527. I In light of this controlling interpretation of the statute, the Court awards the attorneys fees directly to Plaintiff.1
1 Plaintiff cursorily remarks that she has assigned the fees to her attorney, thus making the fees directly payable to her attorney. As persuasively noted by one of our sister courts, however, “[a]n assignment made prior to the award of attorneys fees necessarily violates [the requirements of the Anti-Assignment Act, 31 U.S.C. § 3727] because the claim has not been allowed, the amount of the claim is not decided and a warrant for payment of the claim has not been issued.” Hartage v. Astrue, No. CIV.A.09-48, 2011 WL 1123457, at *5 (M.D. Ga. Feb. 15, 2011). In this case, the purported assignment by Plaintiff to her counsel was made prior to the award of attorneys fees, meaning that it contravenes the Anti-Assignment Act. Such an assignment thus does not allow Plaintiff’s counsel to directly receive the court-awarded EAJA fees.
Wednesday, March 30, 2011
employment - due process - suspension - prior hearing
Schmidt v. Creedon - 3d Cir. - March 29, 2011
Under Pennsylvania law, 53 Pa. Stat. § 46190, policemen [sic] and fireman [sic] cannot be suspended or terminated without just cause. This recognition of this property interest in their positions has been applied both to terminations and to suspensions. See, e.g., Dee v. Borough of Dunmore, 549 F.3d 225, 230 (3d Cir. 2008). Absent extraordinary circumstances, the statute has been interpreted as creating a property interest requiring at least a brief and informal pre-termination or pre-suspension hearing.
The District Court held that, despite plaintiff'‘s property interest in his position, because there was a post-suspension hearing provided by the Collective Bargaining Agreement, no pre-suspension hearing was necessary.
The Third Circuit reversed, holding that, except for extraordinary situations, under Pennsylvania law, even when union grievance procedures permit a policeman to challenge his suspension after the fact, a brief and informal pre-termination or pre-suspension hearing is necessary. However, because this rule was not clearly established at the time of plaintiff‘s suspension, it held that appellees were entitled to qualified immunity.
Tuesday, March 29, 2011
Sec. 1983 - police involvement in private property dispute
Harvey v. Plains Twp. Police Dept - 3d Cir. March 29, 2011
To prevail on a § 1983 claim, plaintiff had to show, first, that she was deprived of a constitutional right and, second, that the alleged deprivation was "committed by a person acting under color of state law." Harvey I, 421 F.3d at 189 (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). The first element was not in dispute. The case turned on whether plaintiff could prove that the police officer acted "under color of state law." 42 U.S.C. § 1983.
Action under color of state law "requires that one liable under § 1983 have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998) (internal quotation marks and citations omitted). We have considered state action in the context of private repossessions before. The test is whether the officer maintains neutrality or takes an active role in the repossession resulting in an unconstitutional deprivation. Id. at 147. "The mere presence of police at the scene of a private repossession does not, alone, constitute state action." Id.
An officer‟s presence may be requested to maintain the peace, and the officer appropriately does so by remaining neutral. An officer abandons neutrality once he takes an active role and assists in the repossession. The relevant inquiry, then, is whether an officer affirmatively aided a repossession such that he can be said to have caused the constitutional deprivation. Such aid may take the form of facilitation, encouragement, direction, compulsion, or other affirmative assistance in the repossession.3 See Marcus v. McCollum, 394 F.3d 813, 819 (10th Cir. 2004). However, liability will only attach when an officer plays a "principal role" in the seizure. Abbott, 164 F.3d at 147. In short, an officer may be liable for causing a constitutional deprivation if he "aid[s] the repossessor in such a way that the repossession would not have occurred but for [his] assistance." Marcus, 394 F.3d at 819.
The distinction between maintaining neutrality and taking an active role is not to be answered in the abstract. There is no precise formula, and the distinction lies in the particular facts and circumstances of the case. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961) ("Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance."). To determine whether a police officer acted under the color of state law, the facts and circumstances of the police officer‟s role in the private repossession must be examined in their totality. See Howerton v. Gabica, 708 F.2d 380, 384 (9th Cir. 1983).
Wednesday, March 23, 2011
disability - remand - post-hearing psych. report - duty to consider
Boyd v. Astrue - ED Pa. - March 18, 2011
Here, the Magistrate Judge found the post-hearing mental evaluation was new. The ALJ did not order a mental examination to address Boyd’s claims of brain damage and learning disabilities, relying instead on an erroneous interpretation of Boyd’s school records, which the ALJ incorrectly asserted did not include special education classes.
Remand based on newly introduced evidence is authorized by the sixth sentence of 42U.S.C. § 405(g), which states that a court may remand a case when there is new, material evidence, and there is good cause for its absence from the administrative record. Id.; see also Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2000). Evidence is “new” if it is not “merely cumulative of what is already on the record.” Szubak v. Sec’y of HHS, 745 F.2d 831, 833 (3d Cir. 1984). Evidence is “material” if it is “relevant and probative . . . [and] there is a reasonable possibility that the new evidence would have changed the outcome” of the administrative decision. Id. To be material, the evidencemust also be relevant to the time period considered by theALJ, and not simply demonstrate a later-acquired disability or deterioration of a previously non-disabling condition. Id.
Here, the Magistrate Judge found the post-hearing mental evaluation was new. The ALJ did not order a mental examination to address Boyd’s claims of brain damage and learning disabilities, relying instead on an erroneous interpretation of Boyd’s school records, which the ALJ incorrectly asserted did not include special education classes.
The Magistrate Judge found the mental evaluation was material because it reflects a life-long learning disability which existed during the time period considered by the ALJ, and found there is a reasonable possibility Boyd’s mental disability could qualify Boyd as disabled by meeting or equaling a listed impairment, or could otherwise affect his RFC.
The Magistrate Judge further found Boyd could not have introduced the post-hearing examination report before the ALJ’s denial of benefits, which occurred several months before the examination was conducted. Accordingly, the Magistrate Judge recommended this case be remanded.
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Tuesday, March 08, 2011
UC - failure of both parties to appear
R.E.G. Investment Properties v. UCBR - unreported - March 8, 2011
http://www.pacourts.us/OpPosting/Cwealth/out/1685CD10_3-8-11.pdf - unreported case
UCSC determination that claimant was employee and not indpt. contractor upheld on appeal, where neither party appeared at hearing and referee made decision based on documents.
There is a presumption that one who performs services for wages is an employee and not an independent contractor.
This presumption can be overcome if an employer sustains its burden in proving that a claimant was (a) free from control and direction in the performance of the work, where the ability to control and not actual control is determinative; and (b) as to such services, [claimant] was customarily engaged in an independent trade or business. Schneider v. Unemployment Comp. Bd. of Review, ____ A.3d ____ (Pa. Cmwlth. No.
2238 C.D. 2009, filed June 18, 2010), slip op. at 2 (citation and quotation marks omitted) (emphasis added).
In addition, “[i]f a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records.” 34 Pa. Code § 101.51.
http://www.pacourts.us/OpPosting/Cwealth/out/1685CD10_3-8-11.pdf - unreported case
UCSC determination that claimant was employee and not indpt. contractor upheld on appeal, where neither party appeared at hearing and referee made decision based on documents.
There is a presumption that one who performs services for wages is an employee and not an independent contractor.
This presumption can be overcome if an employer sustains its burden in proving that a claimant was (a) free from control and direction in the performance of the work, where the ability to control and not actual control is determinative; and (b) as to such services, [claimant] was customarily engaged in an independent trade or business. Schneider v. Unemployment Comp. Bd. of Review, ____ A.3d ____ (Pa. Cmwlth. No.
2238 C.D. 2009, filed June 18, 2010), slip op. at 2 (citation and quotation marks omitted) (emphasis added).
In addition, “[i]f a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records.” 34 Pa. Code § 101.51.
UC - indpt. contractor v. employee - presumption
http://www.pacourts.us/OpPosting/Cwealth/out/1685CD10_3-8-11.pdf - unreported case - March 2011
UCSC determination that claimant was employee and not indpt. contractor upheld on appeal, where neither party appeared at hearing and referee made decision based on documents.
There is a presumption that one who performs services for wages is an employee and not an independent contractor.
This presumption can be overcome if an employer sustains its burden in proving that a claimant was (a) free from control and direction in the performance of the work, where the ability to control and not actual control is determinative; and (b) as to such services, [claimant] was customarily engaged in an independent trade or business. Schneider v. Unemployment Comp. Bd. of Review, ____ A.3d ____ (Pa. Cmwlth. No.
2238 C.D. 2009, filed June 18, 2010), slip op. at 2 (citation and quotation marks omitted) (emphasis added).
In addition, “[i]f a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records.” 34 Pa. Code § 101.51.
UCSC determination that claimant was employee and not indpt. contractor upheld on appeal, where neither party appeared at hearing and referee made decision based on documents.
There is a presumption that one who performs services for wages is an employee and not an independent contractor.
This presumption can be overcome if an employer sustains its burden in proving that a claimant was (a) free from control and direction in the performance of the work, where the ability to control and not actual control is determinative; and (b) as to such services, [claimant] was customarily engaged in an independent trade or business. Schneider v. Unemployment Comp. Bd. of Review, ____ A.3d ____ (Pa. Cmwlth. No.
2238 C.D. 2009, filed June 18, 2010), slip op. at 2 (citation and quotation marks omitted) (emphasis added).
In addition, “[i]f a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records.” 34 Pa. Code § 101.51.
Thursday, March 03, 2011
UC - voluntary quit - retirement package - likelihood of layoff
Wright-Swygert v. UCBR - March 3, 2011 - Cmwlth. Court
http://www.pacourts.us/OpPosting/Cwealth/out/930CD10_3-3-11.pdf
In this case, the circumstances surrounding Claimant leaving her employment gave her the reasonable belief that she was going to be laid off; were as if she had been specifically told that she was going to lose her job; and were of a necessitous and compelling nature to accept the volutary early retirement package (VERP) and leave her employment.
First, Claimant alone was called into the Director’s office on two different occasions just weeks before the deadline for accepting the VERP. Each time was at the behest of the senior director telling the Director to speak to Claimant and question her as to whether she was going to accept the VERP. The discussion was a one-on-one discussion, not a general letter to all employees of the company, letting Claimant know that she should seriously consider accepting the VERP.
At the second meeting, when Claimant asked the Director if her job was going to be eliminated, he said “It doesn’t look good.” Claimant further testified regarding the Director: Claimant: ….. [H]e felt bad that he had to talk to me. He said…I didn’t feel comfortable talking to you about it. But the senior director said talk to her now. He then went on to give her the name of his financial person. Under those circumstances, Claimant was justified in believing that her layoff was likely to materialize and that her job was imminently threatened .
In determining whether a necessitous and compelling cause exists in the context of corporate downsizing, this Court in Renda v. UCBR, 837 A.2d 685 (Pa. Cmwlth. 2003), held that the relevant inquiry is whether “the circumstances surrounding a claimant’s voluntary quit indicated a likelihood that fear about the employee’s employment would materialize, that serious impending threats to her job would be realized, and that her belief her job is imminently threatened is well-founded.” Id., 837 A.2d at 692. Citing Staub v. UCBR, 673 A.2d 434, 437 (Pa. Cmwlth. 1996), we went on to state:
“[S]peculation pertaining to an employer’s financial condition and future layoffs, however disconcerting, does not establish the requisite necessitous and compelling cause.” Staub, 673 A.2d at 437.4 [W]here at the time of retirement suitable continuing work is available, the employer states that a layoff is possible but not likely, and no other factors are found … that remove an employee’s beliefs from the realm of speculation, a claim for unemployment benefits fails despite the offer to leave. Id.
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n.4 - We stated in Renda: [T]his court denied benefits where a claimant’s speculative concerns over future employment prompted her voluntary termination. Mansberg v. UCBR, 829 A.2d 1266 (Pa. Cmwlth. 2003) (claimant voluntarily quit despite employer’s statement that lost jobs would be “filtered” to other sections of company); PECO Energy Co. v. UCBR, 682 A.2d 49 (Pa. Cmwlth. 1996) (claimant accepted early retirement package based on “postulations” of “what he felt could happen”); Staub (claimant accepted early retirement incentive based on his belief that employer’s “poor financial condition” would result in layoff); Dep’t of Navy v. UCBR,650 A.2d 1138 (Pa. Cmwlth 1994) (claimant “believed” his job would be eliminated); Peoples First Nat’l Bank v. UCBR, 632 A.2d 1014 (Pa. Cmwlth. 1993) (employer indicated a layoff was “possible,” but employer “didn’t think so”); Flannery v. UCBR, 557 A.2d 52 (Pa. Cmwlth. 1989) (claimant accepted advanced retirement package based on his belief layoff was “inevitable,” despite availability of continuing work). Renda, 837 A.2d at 692. In both Renda and Staub, the Referees found that the employers made continuing work available to the claimants.
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