Housing - Sec. 8 - medical marijuana

Cease v. Housing Authority of Indiana County – Cmwlth. Court – February 19, 2021 – reported decision – (2-1) 

Petition for allowance of appeal denied Sept. 14, 2021

https://www.pacourts.us/assets/opinions/Supreme/out/74WAL2021%20-%20104893193146422235.pdf?cb=1

 

Held:  Housing Authority and trial court erred in denying Sec. 8 Housing Choice Voucher application of disabled veteran with valid permit under state law to “obtain and use medical marijuana to treat her conditions.” The denial was based solely on her use of that drug, which remains an illegal substance under federal law. 

 

The court remanded the matter to the Housing Authority to do what federal law, the QHWRA, 42 USC sec. 13661, “mandates and establish fair and reasonable standards for determining in what circumstances admission to Section 8 housing is prohibited for an applicant who is legally using medical marijuana under state law, and to apply those standards with respect to the applicant’s individual circumstances when determining her eligibility for Section 8.”

 

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From the opinion:

 

 

Federal law does not outright require barring an application based on an applicant’s use of a controlled substance, but rather requires that a housing authority “shall establish standards” in such circumstances, 42 USC sec. 13661 (b)(1)(A).  [T] here is a difference between “shall establish standards that prohibit admission” and “shall prohibit admission.” Otherwise, the term “establish standards” is entirely meaningless.” Compare the provision concerning sex offenders, which states that a housing authority “shall prohibit admission” of such an offender. 

 

In other words, for purposes of Section 13661(b)(1)(A), the Authority must establish standards for determining when and on what basis admission is prohibited for a Section 8 housing applicant who the Authority determines is illegally using a controlled substance. See Nation v. Trump, 818 F. App’x 678, 679-80 (9th Cir. 2020) (“QHWRA requires that owners of federally-assisted housing establish certain occupancy standards pertaining to illegal drug use for residents. See generally 42 U.S.C. §§ 13661-62.”).  

 

Such standards must take into account factors such as the nature of the substance, i.e., whether it is clearly unlawful or in an unclear legal state such as that involved here; the reason for such use; whether it is being used in accordance with legal requirements; other factors concerning the applicant’s background, including behavior during any prior residence in federally subsidized housing; and the presence or absence of any prior criminal record. The different conclusion by a lower federal court in Michigan is not binding here. 

 

The applicant “possesses a valid Pennsylvania Medical Marijuana Identification Card authorizing her to legally obtain and use medical marijuana under medical supervision, and the Authority does not dispute that she has a valid medical basis for her use and that it is properly prescribed and supervised.

 

Consequently, we find the term “illegally using a controlled substance” to be ambiguous here where her use is prohibited by the federal government but permitted under state law. Criminal law is primarily a matter for the states to determine within their own jurisdictions. “Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect.” Arizona v. United States, 567 U.S. 387, 398 (2012). As the Pennsylvania Supreme Court recently observed: 

 

[T]he core principle of federalism recogniz[es] dual sovereignty between the tiers of government.” See United States v. Davis, 906 F.2d 829, 832 (2d Cir. 1990) (“The states and the national government are distinct political communities, drawing their separate sovereign power from different sources, each from the organic law that established it. Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses.”). In enacting the [Pennsylvania Medical Marijuana Act], the Pennsylvania Legislature proceeded pursuant to its independent power to define state criminal law and promote the health and welfare of the citizenry.  Gass v. 52nd Jud. Dist., 232 A.3d 706, 714 (Pa. 2020). Consequently, “while possession and use of marijuana remains illegal under federal law even for medical purposes, . . . the federal [CSA] does not (and could not) require states to enforce it.” Id. at 714. 

 

Dissent –  McCullough

 

The Majority goes to great lengths to explain why Congress’s use of the phrase “shall establish standards that prohibit” in section 13361 of the federal Quality Housing and Work Responsibility Act (QHWRA), means a Public Housing Authority (PHA) has “flexibility” to decide whether to admit an illegal drug user (as defined in the federal Controlled Substance Act (CSA)) into a Section 8 housing program. By avoiding the rules of statutory interpretation, the Majority assigns to the phrase “shall establish standards that prohibit” a meaning that Congress plainly did not intend. 

 

The Majority also disregards some very basic constitutional and jurisprudential concepts to arrive at the desired conclusion that Mary Cease (Cease), a user of medical marijuana, is not “illegally using a controlled substance” under the QHWRA. The fact that Pennsylvania’s Medical Marijuana Act (MMA) legalizes the use of medical marijuana in limited situations is immaterial to the disposition of this case. The CSA (which illegalizes medical marijuana as a Schedule I drug) applies here because the QHWRA is a federal statute. 

I disagree with the Majority’s interpretation of section 13661 of the QHWRA. To me, it is abundantly clear that PHAs have no discretion to admit persons who engage in the illegal use of drugs, as defined in the governing federal law. Rather, PHAs are required to deny admission to Section 8 housing if the PHA determines that the applicant or any household member is currently engaging in illegal use of drugs.  

The Majority’s position simply cannot be reconciled with the Supremacy Clause of the United States Constitution, which dictates that the federal law prevails over state law. The Supremacy Clause prevents this Court from applying the Pennsylvania MMA to discern the meaning of “illegally using a controlled substance.” 

child abuse - founded report based on ARD - right to admin. hearing

J.F. v. DHS – Pa. S.Ct.  February 17, 2021

 

Majority - http://www.pacourts.us/assets/opinions/Supreme/out/J-48-2020mo%20-%20104689937127731600.pdf?cb=1

Dissent - http://www.pacourts.us/assets/opinions/Supreme/out/J-48-2020do%20-%20104689937127731607.pdf?cb=1

 

In the absence of another appropriate forum to challenge DHS’s adjudication of child abuse in a recorded evidentiary hearing, a named perpetrator in a report designated as “founded” based upon the perpetrator’s voluntary entry into an accelerated rehabilitative disposition is entitled to an administrative hearing. We therefore affirm the Order of the Commonwealth Court. 

 

consumer protection - UTPCPL - strict liability - no state of mind requirement - Pa. S.Ct.

Gregg v. Ameriprise Financial – Pa. S. Ct. – February 17, 2021

 

Majority – Wecht, joined by Donohue, Dougherty and Mundy.

In 1999, Gary and Mary Gregg sought the expertise of Robert A. Kovalchik, a financial advisor and insurance salesperson for Ameriprise Financial, Inc. Engaging in what the trial court would later conclude to be deceptive sales practices, Kovalchik made material misrepresentations to the Greggs to induce them to buy certain insurance policies. The Greggs ultimately sued Ameriprise Financial, Inc., under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“CPL”), 73 P.S. § 201-2(4)(xxi). The Greggs’ complaint also asserted, inter alia, common law claims for negligent misrepresentation and fraudulent misrepresentation. 

Both the trial court and the Superior Court concluded that the Greggs were not required to prevail on the common law claims of fraudulent misrepresentation or negligent misrepresentation in order to succeed on their CPL claim. Gregg v. Ameriprise Fin., 195 A.3d 930, 936 (Pa. Super. 2018). Applying Commonwealth v. TAP Pharm. Products, Inc., 36 A.3d 1197 (Pa. Cmwlth. 2011), rev’d on other grounds, 94 A.3d 350 (Pa. 2014), the Superior Court held that the test for deceptive conduct under the CPL is whether the conduct has the tendency or capacity to deceive, without regard to the actor’s state of mind. Gregg, 195 A.3d at 939. 

A strict liability standard applies to the Greggs’ CPL claim. A plain language analysis of the relevant statutory provision leads inexorably to the conclusion that deceptive conduct under the CPL is not dependent in any respect upon proof of the actor’s state of mind. The Superior Court’s holding is consistent not only with the plain language of the CPL, but also with our precedent holding that the CPL is a remedial statute that should be construed broadly in order to comport with the legislative will to eradicate unscrupulous business practices. See Commonwealth by Creamer v. Monumental Props., Inc., 329 A.2d 812, 817 (Pa. 1974). Accordingly, we affirm. . . . .

The addition of “deceptive” to describe the type of conduct barred by the catch-all provision of the CPL expanded that provision beyond fraudulent conduct. In particular, in the context of consumer protection, “deceptive conduct” had acquired a peculiar and appropriate meaning prior to the 1996 amendment. As we have explained, the CPL is based upon the Federal Trade Commission Act (“FTCA”) and the Lanham Act. Id. at 818 (observing that parts of the CPL are identical to the FTCA and that the “Lanham Act’s similarity to the [CPL] is likewise strong”). Under the FTCA, deception is a broader concept of misconduct than common law fraud, and requires no proof of the actor’s state of mind. See, e.g., Montgomery Ward & Co. v. FTC, 379 F.2d 666, 670 (7th Cir. 1967) (rejecting the argument that deceptive advertising required proof of intent: “whatever Wards’ intentions were in the advertising, they are not controlling in the determination of its deceptiveness”). Rather than being premised upon intent, 

misrepresentation that has the tendency or capacity to deceive is a deceptive act under federal law. Id. (“Actual deception, proved by deceived consumers, is not necessary: the likelihood of deception or the capacity to deceive is the criterion by which the advertising is judged.”); see also Removatron Int’l Corp. v. FTC, 884 F.2d 1489, 1496 (1st Cir. 1989) (explaining that a deceptive representation depends upon the impression created by the representation, rather than its truth or falsity). 

 Dissent – Todd, Saylor, and Baer

http://www.pacourts.us/assets/opinions/Supreme/out/J-31-2020do%20-%20104690395127765002.pdf?cb=1

In Commonwealth v. Golden Gate National Senior Care, 194 A.3d 1010 (Pa. 2018), our Court held that Section 201-2(4)(xxi) of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law1 (“CPL”) prohibits all “deceptive conduct” in a consumer transaction, i.e., all conduct which has “the capacity or tendency to deceive.” I agree with the majority that this holding should be reaffirmed. Additionally, I agree that Section xxi can be invoked in either a public enforcement action brought by the Attorney General, or in a private action such as the one brought by Appellees in the case at bar. However, on the core question before us, I disagree that the General Assembly, when it amended Section xxi in 1996 to add the prohibition against “deceptive conduct” in the conduct of  consumer transactions for goods and services, intended to impose strict liability. Therefore, I must respectfully dissent. 

 

 

 

 

 

 

 

 

 

 

UC - late appeal - duty of prompt examination - delay - limited duty of claimant to update address

 

Byrd v. UCBR – Cmwlth. Court  - en banc - February 4, 2021 – unreported memorandum decision**

This case has unusual facts but contains some language that might be generally helpful to claimants.

It involves a 2012 UC claim on which DLI paid > $6k in benefits. However, the worker/appellant denies ever having applied for benefits, since she was working during the relevant time period. There may be an identity theft issue in the case.

In 2017 – five years after the claim was open and paid – the Department sent worker a series of notices that raised quesetions about her eligibility. Worker never respond to the notices, because she did not receive them, having moved a number of times since 2012. She eventually found out about the case when DLI entered a  lien against her. She then appealed that decision, which was rejected as being late.

The court reversed, granting her the right to appeal beyond the legal time limits, because 

1. the Department violated its duty to promptly examine claims, sec. 501 (c), 43 P.S. sec. 821 (c).
2. there was no presumption that the worker received the Department’s notice of determination, given that it was sent to an incorrect address

Duty of prompt examination of UC claims – delay in issuing determination

Section 501 of the UC Law provides that the Department shall promptly examine each application for benefits. . . 43 P.S. § 821(a) & (b) (italics added).
Here, the Department conducted no examination of the 2012 UC claim other than its 2012 verification of Claimant’s 2011 separation of employment from one employer and its 2017 questionnaire to Employer. . . . . [T]here is no indication that . . . Claimant’s last employer, was provided with notice of her alleged claim for UC benefits as required by Section 501(b) of the UC Law. Thus, there is no indication in the record that the Department attempted to verify Claimant’s alleged separation from Employer in 2012, or at any other time prior to mid-2017. Further, the record contains no explanation by the Department for its five-year delay in pursuing its examination of the claim. 

Nunc pro tunc appeals - Nunc pro tunc relief allowing a UC claimant’s untimely appeal may be permitted where the delay in filing the appeal is the result of extraordinary circumstances involving fraud, administrative breakdown, or non-negligent conduct of the claimant or a third party. Mountain Home Beagle Media v. Unemployment Comp. Bd. of Rev., 955 A.2d 484 (Pa. Cmwlth. 2008); see also Rude v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 184 C.D. 2010, filed Sept. 20, 2010), slip op. at 3-4, 2010 Pa. Commw. Unpub. LEXIS 640, at *5 (unreported) (citing Cook v. Unemployment Comp. Bd. of Rev., 671 A.2d 1130 (Pa. 1996) and Mountain Home Beagle Media). Negligence by an administrative official may be equivalent to fraud for purposes of justifying nunc pro tunc relief. Rude. . . . (citing Stana v. Unemployment Comp. Bd. of Rev., 791 A.2d 1269 (Pa. Cmwlth. 2002)).  Here, Claimant contends the Department was negligent by reason of its five-year delay in issuing the notices of determination. As a result, because Claimant had moved multiple times in the interim, the Department did not provide the requisite notices of its determinations, having mailed them to the wrong address. We agree. 

Leavitt, J. – concurring – no duty of claimant to update address after her claim period has ended

Section 501(e) of the UC Law requires a party to appeal after a notice “was mailed to his last known post office address.” 43 P.S. §821(e) (emphasis added). A fair reading of Section 501(e) suggests that a claimant who has an open claim for unemployment benefits may not raise non-receipt of a determination as an excuse for filing an untimely appeal if she failed to notify the Department of her new address. 

However, it is a bridge too far to read the term “last known post office address” to signify a mandate that any person who ever interacted with the unemployment compensation system must keep the Department informed of every address change after benefits have ceased, by virtue of the claimant’s return to the workplace, or have been exhausted. It is evident when looking at other statutes that the legislature knows how to impose a duty to report address changes when it wishes. . . . .T]he Unemployment Compensation Law imposes no such duty on an individual who once applied for unemployment benefits. When there is no duty, there can be no negligence. . . . For this reason alone, the Board erred in holding that Claimant was in any way negligent for not updating her address with the Department five years (or more) after she ceased to collect unemployment benefits. 

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**An unreported, non-precedential Commonwealth Court case can be cited for its persuasive value but is not binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

 

drivers license - suspension - extraordinary delay between conviction and suspension

Commonwealth, Dept. of Transportation v. Middaugh – Pa. S.Ct. – January 20,2021

 

Majority         http://www.pacourts.us/assets/opinions/Supreme/out/J-7-2020mo%20-%20104664745125444695.pdf?cb=1

Concur           http://www.pacourts.us/assets/opinions/Supreme/out/J-7-2020cdo%20-%20104664745125444731.pdf?cb=1

Dissent   http://www.pacourts.us/assets/opinions/Supreme/out/J-7-2020do%20-%20104664745125444810.pdf?cb=1

 

 

Held: 

Trial court upholding driver appeal affirmed. In reaching its holding, the court relied on Gingrich v. PennDOT, 134 A.3d 528 (Pa. Cmwlth. 2016), which set forth the following rule for situations where the delay is attributable to a court clerk rather than PennDOT: 

[W]here . . . a licensee is able to demonstrate all of the following: [(1)] a conviction that is not reported for an extraordinarily extended period of time; [(2)] the licensee has [no further violations of the Vehicle Code] for an extended period; and [(3)] prejudice, it may be appropriate for common pleas to grant relief. 

Id. at 535. Applying the standard, the trial court found that the 28-month delay was extraordinary, Appellee did not have any further violations during that period, and Appellee had demonstrated he would be prejudiced by the lateness of the suspension, particularly in view of his medical condition and the impact a suspension would have on it. 

 

res judicata (claim preclusion) and collateral estoppel (issue preclusion)

In re Coatesville Area School District – Pa. S.Ct. – January 19,2021 

http://www.pacourts.us/assets/opinions/Supreme/out/J-72-2020mo%20-%20104664752125446022.pdf?cb=1

 

This is a tax assessment case, not really relevant to legal aid practice, but it contains a nice summary of the doctrine of res judicata (claim preclusion) and collateral estoppel (issue preclusion).

 

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Res judicata – literally, a thing adjudicated – is a judicially-created doctrine. See Estate of Bell, 463 Pa. 109, 113, 343 A.2d 679, 681 (1975). It bars actions on a claim, or any part of a claim, which was the subject of a prior action, or could have been raised in that action. See R/S Financial Corp. v. Kovalchick, 552 Pa. 584, 588, 716 A.2d 1228, 1230 (1998); Balent v. City of Wilkes-Barre, 542 Pa. 555, 563, 669 A.2d 309, 313 (1995). This Court has explained that 

[r]es judicata, or claim preclusion, prohibits parties involved in prior, concluded litigation from subsequently asserting claims in a later action that were raised, or could have been raised, in the previous adjudication. The doctrine of res judicata developed to shield parties from the burden of re-litigating a claim with the same parties, or a party in privity with an original litigant, and to protect the judiciary from the corresponding inefficiency and confusion that re-litigation of a claim would breed. 

Wilkes ex rel. Mason v. Phoenix Home Life Mut. Ins. Co., 587 Pa. 590, 607, 902 A.2d 366, 376 (2006) (citation omitted); see also R/S Financial, 552 Pa. at 588, 716 A.2d at 1230 (“The purposes of the rule are the protection of the litigant from the dual burden of relitigating an issue with the same party or his privy and the promotion of judicial economy through prevention of needless litigation.” (quoting Foster v. Mut. Fire, Marine & Inland Ins. Co., 544 Pa. 387, 404, 676 A.2d 652, 661 (1996))).

Four elements common to both actions, sometimes termed the “four identities,” see, e.g., Estate of Tower, 463 Pa. 93, 100, 343 A.2d 671, 674 (1975), must be present for res judicata to apply: “an identity of issues, an identity of causes of action, identity of persons and parties to the action, and identity of the quality or capacity of the parties suing or being sued.” In re Iulo, 564 Pa. 205, 210, 766 A.2d 335, 337 (2001) (citing Safeguard Mut. Ins. Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975)). 

Collateral estoppel is similar in that it bars re-litigation of an issue that was decided in a prior action, although it does not require that the claim as such be the same. For example, if, in a breach of contract action, the defendant asserts that the contract is invalid because of fraud, but the contract is ruled valid and the defendant is found liable, in a future lawsuit against the same party alleging a separate breach of the same contract the defendant is precluded from asserting the invalidity of the contract based on fraud. SeeRESTATEMENT (SECOND) OF JUDGMENTS §27, cmt. a, illus. 2 (1982). 

Collateral estoppel will only apply where: the issue is the same as in the prior litigation; the prior action resulted in a final judgment on the merits; the party against whom the doctrine is asserted was a party or in privity with a party to the prior action; and the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior action. See Rue v. K-Mart Corp., 552 Pa. 13, 17, 713 A.2d 82, 84 (1998). In some renditions, courts add a fifth element, namely, that resolution of the issue in the prior proceeding was essential to the judgment. See, e.g., Office of Disciplinary Counsel v. Kiesewetter, 585 Pa. 477, 484, 889 A.2d 47, 50-51 (2005). 

Collateral estoppel is premised on practical considerations that overlap substantially with those of res judicata. These include avoiding the “cost and vexation” of repetitive litigation, conserving judicial resources, “and, by preventing inconsistent decisions, encourage[ing] reliance on adjudication.” Id. at 484, 889 A.2d at 51. 

civil procedure - I.D. of parties - pseudonyms - federal court

Doe v. Moravian College – ED Pa. – January 8,2021

 

https://www.paed.uscourts.gov/documents/opinions/21D0044P.pdf

 

Plaintiff allowed to proceed with pseudonym is case involving sexual assault under F.R. Civ. P. 10 (a)

 

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n. 1-  Plaintiff Jane Doe, a college freshman, alleges that she was sexually assaulted on her college campus by fellow students and their guest. She brings this action against her alleged attackers, for the assault, and against the college, for not protecting her. See ECF No. 4 (Amended Complaint). The plaintiff is seeking the Court’s permission to continue litigating this matter under a pseudonym. ECF No. 17. Only one of the individual defendants opposes the motion but, in the alternative, requests that he be permitted to also use a pseudonym in this matter. ECF Nos. 24, 31. 

Federal Rule of Civil Procedure 10(a) requires parties to identify themselves in their pleadings. Doe v. Meglass, 654 F.3d 404, 408 (3d Cir. 2011) (citing to Fed. R. Civ. P. 10(a)). “Courts have explained that [Rule 10(a)] illustrates ‘the principle that judicial proceedings, civil as well as criminal, are to be conducted in public.’” Id. (quoting Doe v. Blue Cross & Blue Shield United, 112 F.3d 869, 872 (7th Cir. 1997)). Part of the public nature of judicial proceedings is the identification of the parties. See id. (“Identifying the parties to the proceeding is an important dimension of publicness.” (quoting Blue Cross, 112 F.3d at 872)). Therefore, a litigant’s “use of a pseudonym ‘runs afoul of the public's common law right of access to judicial proceedings.” Id. (quoting Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000)). 

Despite Rule 10(a)’s identification requirement, courts have the discretion to permit litigants to proceed anonymously “in exceptional cases.” See id. The litigant must demonstrate that they have “a reasonable fear of severe harm that outweighs the public’s interest in open judicial proceedings.” Id. The Third Circuit has endorsed a set of non-exhaustive factors when balancing these competing interests. Id. at 409. The factors that favor a litigant’s request to proceed anonymously are: 

(1) the extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases; (3) the magnitude of the public interest in maintaining the confidentiality of the litigant's identity; (4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant's identities; (5) the undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and (6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives. 

Id. (quoting Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. 464, 467 (E.D. Pa. 1997). The factors that weigh against a litigant’s request for anonymity include: 

(1) the universal level of public interest in access to the identities of litigants; (2) whether, because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant's identities, beyond the public's interest which is normally obtained; and (3) whether the opposition to pseudonym by counsel, the public, or the press is illegitimately motivated. 

Id. (quoting Provident Life, 176 F.R.D. at 467). Considering the public’s interest in open court proceedings, courts have found that there is “an independent duty to determine whether ‘exceptional circumstances’ warrant a departure from the normal method of proceeding’ in federal litigation.” Freedom from Religion Foundation, Inc. v. New Kensington-Arnold School Dist., 2012 WL 6629643, at *3 (W.D. Pa. Dec. 19, 2012) (quoting Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004)); see also Doe v. County of Lehigh, 2020 WL 7319544, at *3 (E.D. Pa. Dec. 11, 2020) (Leeson, J.). 

After careful review, the Court finds that the factors balance in favor of permitting plaintiff to continue litigating this case under a pseudonym. Weighing in favor of pseudonymity are the plaintiff’s attempts to keep her identity confidential; her fear of increased embarrassment, humiliation, and stigmatization as a rape victim that would compound the “severe emotional damage” caused by the alleged actions of the defendants if her identity was disclosed; the magnitude of the public interest in maintaining the confidentiality of the identities of sexual assault victims; her assertion that she will refuse to continue to pursue this litigation should she be precluded from using a pseudonym; the plaintiff’s lack of illegitimate motive; and the fact that no public figure is involved in this litigation. The remaining factors, such as the universal level of public interest in access to the identities of litigants, do not outweigh the interests in favor of pseudonymity. For these reasons, the plaintiff’s motion will be granted. 

n. 2 Similarly, the factors weigh in favor of allowing the defendant to also proceed using a pseudonym. 

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This case is also reported in the PLAN Legal Update  http://planupdate.blogspot.com/ , which is searchable and can be accessed without a password.

 

 

 

 

 

 

 

UC - employee v. independent contractor - "actually engaged" in own business

Subcontracting Concepts, Inc. v. UCBR – Cmwlth. Court – 12-16-20 – unreported, non-precedential decision**

 

Held: UCBR decision affirmed, that claimant was not an independent contractor, despite an written agreement stating that he was.  The employer did not offer proof that the claimant was actually engaged in his own business.

 

This case is reported here, because it contains a helpful, extended discussion of the issue, citing important recent precedent, including 

-A Special Touch v. Department of Labor & Industry, 228 A.3d 489 (Pa. 2020)

-Danielle Viktor, Ltd. v. Department of Labor & Industry, Bureau of Employer Tax Operations, 892 A.2d 781 (Pa. 2006).

- Lowman v. UCBR, 235 A.3d 278 (Pa. 2020

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*An unreported, non-precedential Commonwealth Court case can be cited for its persuasive value but is not binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

 

 

PFA - reasonable fear does not require proof of past physical abuse

C.J.L. v. W.S.M. , SR. – Pa. Superior – December 16, 2020 – non-precedential decision**

 

Held: Course of conduct which creates reasonable fear of bodily injury can be based solely on non-physical factors, such as threats and following victim to work.  It does not require proof of past physical violence. D.H. v. B.O., 734 A.2d 409 (Pa. Super. 1999) and Burke v. Bauman, 814 A.2d 206 (Pa. Super. 2002) distinguished.

Burke and D.H. hold that reasonable fear can be based on persistent communications particularly where there is a history of abuse. Neither case required evidence of past abuse or held that communications alone can never form the basis for a PFA. Moreover, the record reflects more than mere communication. The victim testified that on one occasion defendant, from his car, noticed her travelling in the opposite direction and turned around and followed her to work. 

Evidence issue – The fact that the physical text message and letters were not in evidence was not relevant, where they were read into evidence in open court, and the parties testified as to their perceived meaning 

 

 

*An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.  See 210 Pa. Code 65.37(B).

UC - willful misconduct - ER failure to give reason for firing at time of termination does not preclude later proof of reason

The Community Youth and Women’s Alliance v. UCBR – Cmwlth. Court – 12-12-20 – unreported memorandum decision, no precential**

 

Held:  The failure of an employer to give claimant a reason for her firing at the time of termination does not preclude the employer from later establishing one in response to initial determination or at hearing, so long as the latter two are consistent.

 

From the opinion:

In determining whether an employer has discharged an employee for willful misconduct, we have held that an employer is prohibited from offering one reason for discharge at the time of separation and then later relying on a completely different reason. See Saleem v. UCBR., 35 A.3d 1283, 1290-93 (Pa. Cmwlth. 2012); Browning-Ferris Indus. of Pa., Inc. v. UCBR., 561 A.2d 856, 857 (Pa. Cmwlth. 1989). 

However, that is not the same as not giving a reason at the time of discharge, but later offering one in response to the initial determination and later at an appeal hearing.  Precedent does not constrain an employer that fails to provide a reason at discharge from later establishing one. In the matter before us, Employer has alleged the same reasons for Claimant’s discharge at all times since it completed the employer questionnaire: general financial mismanagement, lapse of insurance, excessive trash fees, and lack of financial disclosure to the board of directors. Employer’s failure to provide these reasons to Claimant at the time of discharge does not prevent Employer from later establishing them in order to meet its burden of proof under Section 402(e) of the Law. 

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This case is also reported in the PLAN Legal Update  http://planupdate.blogspot.com/ , which is searchable and can be accessed without a password.

**An unreported, non-precedential Commonwealth Court case can be cited for its persuasive value but is not binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

 

LT - request for order of possession - time limit extended to 180 days from entry of judgment

Order -           http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%20104625461121365958.pdf?cb=1\

Rule                http://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20-%20104625461121365893.pdf?cb=1

Final Report  http://www.pacourts.us/assets/opinions/Supreme/out/Report%20-%20104625461121365777.pdf?cb=1

 

 

Recommendation 4-2020, Minor Court Rules Committee

Amendment of Pa.R.C.P.M.D.J. Nos. 515 and 516

EXTENSION OF TIME FOR A LANDLORD TO REQUEST AN ORDER FOR POSSESSION IN A RESIDENTIAL LEASE CASE

Introduction

FINAL REPORT1

The Minor Court Rules Committee (“Committee”) recommended amendments to Rules 515 and 516 of the Pennsylvania Rules of Civil Procedure Governing Actions and Proceedings Before Magisterial District Judges (“Rules”). The amendments will permit a landlord in a case involving a residential lease to request an order for possession within 180 days from the date of entry of judgment rather than the current 120 days. The recommendation is necessitated by exigent circumstances requiring the immediate adoption of the proposal and is adopted in accordance with Pa.R.J.A. No. 103(a)(3), without prior publication for public comment.

I. Background and Discussion

Following the issuance of a judgment in a landlord-tenant case and the requisite waiting period, a landlord seeking to regain property must file a request for an order for possession with the magisterial district court. See Rule 515. In residential landlord-tenant cases, the landlord must file the request for an order for possession no later than 120 days from the date of entry of the judgment. See Rule 515B(1). Certain actions will stay the period within which a request for order for possession must be filed, such as an appeal or writ of certiorari operating as a supersedeas, or a bankruptcy or other stay required by state or federal law. See Rule 515B(2).

Since the onset of the COVID-19 pandemic, the Court, the federal government, the Governor, and the Centers for Disease Control and Prevention (“CDC”), inter alia, have promulgated laws and orders suspending certain residential evictions.

One of the most recent orders staying some residential evictions, issued by the CDC, will expire on December 31, 2020.

The Committee received correspondence recommending an extension of the 120- day period within which a landlord must file a request for an order for possession in a residential landlord-tenant case. An extension would provide the parties with greater flexibility to negotiate and enter into private forbearance agreements. Such private agreements could allow the tenants additional time in which to satisfy back rent obligations while maintaining current rental payments and housing status. Therefore, the Committee recommended increasing the time period within which a landlord must file a request for an order for possession in a residential lease case from 120 days to 180 days. 

III. Rule Changes

Rules 515 and 516 are amended to provide for 180 days within which a landlord in a residential lease case must request an order for possession. Rule 516C is further amended to provide that upon written request of the landlord in a case arising out of a residential lease, the magisterial district judge shall reissue an order for possession for no more than two additional 60-day periods.

Docket, In re: General Statewide Judicial Emergency, p. 12. See also Coronavirus Aid, Relief, and Economic Security Act, P.L. 116-136 (“CARES Act”); Commonwealth of Pennsylvania, Executive Order May 7, 2020, § 2, as amended, May 21, 2020; Commonwealth of Pennsylvania, Executive Order July 9, 2020, § 2; Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55292 (Sept. 4, 2020) (“CDC Order”).

 

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1 The Committee’s Final Report should not be confused with the Official Notes to the Rules. Also, the Supreme Court of Pennsylvania does not adopt the Committee’s Official Notes or the contents of the explanatory Final Reports.

2 See Order of March 18, 2020, Nos. 531 and 532 Judicial Administration Docket, In re: General Statewide Judicial Emergency, pp. 8-9 (suspending eviction, ejectment, or other displacement from a residence based upon the failure to make a rent, loan, or other similar payment). See also Order of April 1, 2020, Nos. 531 and 532 Judicial Administration Docket, In re: General Statewide Judicial Emergency, p. 6, Second Supplemental Order; Order of April 28, 2020, Nos. 531 and 532 Judicial Administration