Philadelphia Park Casino v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/726CD08_10-14-08.pdf
Claimant had good cause to quit his job where he has negotiated a work shedule with the employer, for religious and health reasons, and employer unilaterally changed the schedule.
Wednesday, October 15, 2008
UC - hearing - continuance - good cause - new job
Ammon v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/795CD08_10-14-08.pdf
Refusal to grant claimant's last minute request for a continuance was an abuse of discretion, where it resulted from an unexpected, last-minute opportunity to begin employment on the day of the hearing.
Normally, last-minute requests are disfavored. However, in this case the request was supported by "proper cause" under 34 Pa. Code § 101.23 http://www.pacode.com/secure/data/034/chapter101/s101.23.html.
The refusal to grant it would penalize a person who actually found work and would be "contrary to the goal of stabilizing employment." Shegan v. UCBR, 564 A.2d 1022, 1025 n. 5 (Pa. Cmwlth. 1989).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/795CD08_10-14-08.pdf
Refusal to grant claimant's last minute request for a continuance was an abuse of discretion, where it resulted from an unexpected, last-minute opportunity to begin employment on the day of the hearing.
Normally, last-minute requests are disfavored. However, in this case the request was supported by "proper cause" under 34 Pa. Code § 101.23 http://www.pacode.com/secure/data/034/chapter101/s101.23.html.
The refusal to grant it would penalize a person who actually found work and would be "contrary to the goal of stabilizing employment." Shegan v. UCBR, 564 A.2d 1022, 1025 n. 5 (Pa. Cmwlth. 1989).
pre-emption - state/local
Hoffman Mining Company v. Zoning Hearing Board - Cmwlth. Court - October 15, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2122CD07_10-15-08.pdf
Whether a state statute preempts local regulation is determined by the intent of the General Assembly. The General Assembly can specifically express its intent by either providing that municipalities may enact ordinances not inconsistent with state law, limiting what subjects of regulation that may be enacted, or by expressly forbidding municipal regulation altogether.
However, the General Assembly is often silent and is not presumed to have preempted the field by legislating in it; therefore, it must clearly be shown that it was the General Assembly’s intent to preempt the field by legislation. Retail Master Bakers Association v. Allegheny County, 400 Pa. 1, 161 A.2d 36 (1960); Baird v. Township of New Britain, 633 A.2d 225 (Pa. Cmwlth. 1993).
The presumption against preemption is based on the understanding that what is being preempted is the ability of the municipality, through its elected local officials, to address the needs of its citizens.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2122CD07_10-15-08.pdf
Whether a state statute preempts local regulation is determined by the intent of the General Assembly. The General Assembly can specifically express its intent by either providing that municipalities may enact ordinances not inconsistent with state law, limiting what subjects of regulation that may be enacted, or by expressly forbidding municipal regulation altogether.
However, the General Assembly is often silent and is not presumed to have preempted the field by legislating in it; therefore, it must clearly be shown that it was the General Assembly’s intent to preempt the field by legislation. Retail Master Bakers Association v. Allegheny County, 400 Pa. 1, 161 A.2d 36 (1960); Baird v. Township of New Britain, 633 A.2d 225 (Pa. Cmwlth. 1993).
The presumption against preemption is based on the understanding that what is being preempted is the ability of the municipality, through its elected local officials, to address the needs of its citizens.
Wednesday, October 08, 2008
UC - willful misconduct - lateness
Turner v. UCBR - Cmwlth. Court - October 8, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/519CD08_10-8-08.pdf
Claimant was guilty of willful misconduct when she stopped on her way to work to get shoes (because her feet hurt), without telling the employer that she was doing so and would be late. Claimant had a history of lateness and had been given a final warning.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/519CD08_10-8-08.pdf
Claimant was guilty of willful misconduct when she stopped on her way to work to get shoes (because her feet hurt), without telling the employer that she was doing so and would be late. Claimant had a history of lateness and had been given a final warning.
child abuse - "imminent risk" - OCYF Bulletin
Montgomery Co. CYS v. DPW - Cmwlth. Court - Octobwer 8, 2008 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/376CD08_10-8-08.pdf
No risk of imminent serious injury by momentary inattention of daycare worker, especially considering the definition of "imminent risk" in proposed regs.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/376CD08_10-8-08.pdf
No risk of imminent serious injury by momentary inattention of daycare worker, especially considering the definition of "imminent risk" in proposed regs.
Monday, October 06, 2008
disability - treating physician opinion; credibility
Wilson v. Astrue - ED Pa. November 28, 2007
http://www.paed.uscourts.gov/documents/opinions/07D1402P.pdf
Benefits granted in this case, with good discussions of standards for evaluating opinion of treating physician and judging claimant credibility.
http://www.paed.uscourts.gov/documents/opinions/07D1402P.pdf
Benefits granted in this case, with good discussions of standards for evaluating opinion of treating physician and judging claimant credibility.
Sunday, October 05, 2008
UC - vol. quit - intolerable conditions - unjust accusations
First Federal Savings Bank v. UCBR - Commonwealth Court - October 2, 2008
http://www.courts.state.pa.us/OpPosting/Cwealth/out/427CD08_10-2-08.pdf
Held that claimant had good cause/necessitour & compelling reason to quit her job, where
- she was a valued management employeee
- a fellow employee “engaged in outbursts, was talking, defiant and argumentative, and was quite disrespectful to the claimant personally.”
- claimant expressed her concerns about this to senior management, who did not do anything about it
- claimant established that “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.”
- She had ‘good cause’ for voluntarily leaving (i.e. that cause which is necessitous and compelling) resulting from circumstances which produced pressure to terminate employment that was both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.”
- "Perhaps most important to the present case, it is well established that “a claimant need not indefinitely subject herself to unjust accusations and abusive conduct.” However, “[r]esentmentof a reprimand, absent unjust accusations, profane language or abusive conduct …mere disappointment with wages … and personality conflicts, absent intolerable working atmosphere … do not amount to necessitous and compelling causes.”
- Claimant demonstrated more than a mere belief of unjust accusations, as the Board concluded that Claimant was, in fact, unjustly reprimanded with abusive language and that Claimant was subjected to intolerable working conditions.
- Claimant made attempts on various occasions to preserve her employment relationship with Employer without success. Claimant took her concerns to senior management officials and was reasonable in doing so
http://www.courts.state.pa.us/OpPosting/Cwealth/out/427CD08_10-2-08.pdf
Held that claimant had good cause/necessitour & compelling reason to quit her job, where
- she was a valued management employeee
- a fellow employee “engaged in outbursts, was talking, defiant and argumentative, and was quite disrespectful to the claimant personally.”
- claimant expressed her concerns about this to senior management, who did not do anything about it
- claimant established that “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.”
- She had ‘good cause’ for voluntarily leaving (i.e. that cause which is necessitous and compelling) resulting from circumstances which produced pressure to terminate employment that was both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.”
- "Perhaps most important to the present case, it is well established that “a claimant need not indefinitely subject herself to unjust accusations and abusive conduct.” However, “[r]esentmentof a reprimand, absent unjust accusations, profane language or abusive conduct …mere disappointment with wages … and personality conflicts, absent intolerable working atmosphere … do not amount to necessitous and compelling causes.”
- Claimant demonstrated more than a mere belief of unjust accusations, as the Board concluded that Claimant was, in fact, unjustly reprimanded with abusive language and that Claimant was subjected to intolerable working conditions.
- Claimant made attempts on various occasions to preserve her employment relationship with Employer without success. Claimant took her concerns to senior management officials and was reasonable in doing so
Friday, September 26, 2008
consumer - UTPCPL - fraud in the inducement - parol evidence
Devine v. America's Whole Lender, et al. - ED Pa. - September 25, 2008
http://www.paed.uscourts.gov/documents/opinions/08D1132P.pdf
Plaintiff's evidence about defendant's preliminary, fraudulent misrepresentations is barred by the Pennsylvania application of the parol evidence rule barring evidence about fraud in the inducement.
From the opinion (read it and weep)
Under Pennsylvania law, evidence of prior or contemporaneous oral or written negotiations or agreements is generally inadmissible to explain or vary the terms of a contract that covers or purports to cover the entire agreement of the parties. Yocca v. The Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004); Bardwell v. Willis Co., Inc., 100 A.2d 102, 104 (Pa. 1953). In Yocca, the Pennsylvania Supreme Court explained the fraud exception to the parol evidence rule as follows:
"Notably, while parol evidence may be introduced based on a party's claim that there was fraud in the execution of the contract, i.e., that a term was fraudulently omitted from the contract, parol evidence may not be admitted based on a claim that there was fraud in the inducement of the contract, i.e., that an opposing party made false representations that induced the complaining party to agree to the contract. Yocca, 854 A.2d at fn. 26; see also HCB Contractors v. Liberty Place Hotel Assocs., 652 A.2d 1278, 1279 (Pa. 1995)."
The plaintiffs claim they signed the loan documents based on defendant's assurances that the payment option they desired would be added to the package after execution of the documents. This is fraud in the inducement. The parol evidence rule bars the introduction of this evidence because plaintiffs seek to vary the terms of the written loan documents, which purported to cover the parties' entire agreement. There is no evidence that a term was fraudulently omitted from the contract. Thus, what happened here does not fall within the fraud exception under Yocca.
Given Pennsylvania's adoption of the parol evidence rule, the plaintiffs cannot be said to have justifiably relied on the defendants' representations regarding the amount of the monthly payments due under the loans because these representations are in direct conflict with the parties' contract. Yocca, 854 A.2d at 502. Thus, plaintiffs' claim under the UTPCPL fails.
Accordingly, the court will grant summary judgment on plaintiffs' claims under the catch-all provision of the UTPCPL which are based on defendants' alleged misrepresentations.6
n. 6 - The plaintiffs' brief in opposition to the defendants' motion for summary judgment for the first time asserts that their claims "are based in part on the ground that a violation of any portion of the UTPCPL, notably here the violations of 73 P.S. section 201-7 and the violation of any other consumer protection laws, such as the TILA, constitute per se violations of section 201-4(2) of the TPCPL." However, paragraph 32 of the plaintiffs' complaint premises their per se violations of the UTPCPL on the defendants' alleged violations of the Pa. Credit Services Act and the Pa. Loan Broker Trade Practices Regulations ("LBTP") only. To the extent the plaintiffs have premised their claims under the UTPCPL on the alleged violations of TILA and § 201-7 of the UTPCPL, such claims come too late.
http://www.paed.uscourts.gov/documents/opinions/08D1132P.pdf
Plaintiff's evidence about defendant's preliminary, fraudulent misrepresentations is barred by the Pennsylvania application of the parol evidence rule barring evidence about fraud in the inducement.
From the opinion (read it and weep)
Under Pennsylvania law, evidence of prior or contemporaneous oral or written negotiations or agreements is generally inadmissible to explain or vary the terms of a contract that covers or purports to cover the entire agreement of the parties. Yocca v. The Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004); Bardwell v. Willis Co., Inc., 100 A.2d 102, 104 (Pa. 1953). In Yocca, the Pennsylvania Supreme Court explained the fraud exception to the parol evidence rule as follows:
"Notably, while parol evidence may be introduced based on a party's claim that there was fraud in the execution of the contract, i.e., that a term was fraudulently omitted from the contract, parol evidence may not be admitted based on a claim that there was fraud in the inducement of the contract, i.e., that an opposing party made false representations that induced the complaining party to agree to the contract. Yocca, 854 A.2d at fn. 26; see also HCB Contractors v. Liberty Place Hotel Assocs., 652 A.2d 1278, 1279 (Pa. 1995)."
The plaintiffs claim they signed the loan documents based on defendant's assurances that the payment option they desired would be added to the package after execution of the documents. This is fraud in the inducement. The parol evidence rule bars the introduction of this evidence because plaintiffs seek to vary the terms of the written loan documents, which purported to cover the parties' entire agreement. There is no evidence that a term was fraudulently omitted from the contract. Thus, what happened here does not fall within the fraud exception under Yocca.
Given Pennsylvania's adoption of the parol evidence rule, the plaintiffs cannot be said to have justifiably relied on the defendants' representations regarding the amount of the monthly payments due under the loans because these representations are in direct conflict with the parties' contract. Yocca, 854 A.2d at 502. Thus, plaintiffs' claim under the UTPCPL fails.
Accordingly, the court will grant summary judgment on plaintiffs' claims under the catch-all provision of the UTPCPL which are based on defendants' alleged misrepresentations.6
n. 6 - The plaintiffs' brief in opposition to the defendants' motion for summary judgment for the first time asserts that their claims "are based in part on the ground that a violation of any portion of the UTPCPL, notably here the violations of 73 P.S. section 201-7 and the violation of any other consumer protection laws, such as the TILA, constitute per se violations of section 201-4(2) of the TPCPL." However, paragraph 32 of the plaintiffs' complaint premises their per se violations of the UTPCPL on the defendants' alleged violations of the Pa. Credit Services Act and the Pa. Loan Broker Trade Practices Regulations ("LBTP") only. To the extent the plaintiffs have premised their claims under the UTPCPL on the alleged violations of TILA and § 201-7 of the UTPCPL, such claims come too late.
child abuse - founded report - right to hearing
G.M. v. DPW - Commonwealth Court - September 26, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/765CD08_9-26-08.pdf
There is no right to a civil expungment hearing on a "founded" report of abuse--i.e., one based on a court decision-- where the defendant has previously pleaded nolo contendere in a separate criminal case, if the same underlying factual circumstances are involved in both matters.
The court contrasted its decision in R.F. v. DPW, 845 A.2d 214 (Pa. Cmwlth. 2004), where the generic criminal charges did not correspond to the allegations of abuse in the civil case.
Where “there is an entry of a guilty plea or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstance involved in the allegation of child abuse, an appeal would ‘in most instances, constitute a collateral attack of the adjudication itself, which is not allowed.’” J.G. v. DPW, 795 A.2d 1089, 1093 (Pa. Cmwlth. 2002).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/765CD08_9-26-08.pdf
There is no right to a civil expungment hearing on a "founded" report of abuse--i.e., one based on a court decision-- where the defendant has previously pleaded nolo contendere in a separate criminal case, if the same underlying factual circumstances are involved in both matters.
The court contrasted its decision in R.F. v. DPW, 845 A.2d 214 (Pa. Cmwlth. 2004), where the generic criminal charges did not correspond to the allegations of abuse in the civil case.
Where “there is an entry of a guilty plea or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstance involved in the allegation of child abuse, an appeal would ‘in most instances, constitute a collateral attack of the adjudication itself, which is not allowed.’” J.G. v. DPW, 795 A.2d 1089, 1093 (Pa. Cmwlth. 2002).
Thursday, September 25, 2008
contracts - insurance - interpretation - reasonable expectation of insured
Betz v. Erie Insurance Exchange - Superior Court - September 22, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a23045_08.pdf
Trial court judgment in favor of the insured affirmed on appeal. The case involved a "sinkhole endorsement" to a homeowner's policy, which the court found ambiguous as a matter of law and "insufficiently clear to put the policyholder on notice of what the endorsement actually covered...."
Although the interpretation of insurance policies, like all contracts, depends on the intention of the parties, courts also consider all the circumstances, including the object to be accomplished. Contract principes have only limited application in insurance cases. Our courts have often observed that “‘normal’ contract principles do not apply to insurance transactions.”
The "proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured.” This rule of "reasonable expectations" is "not limited only to situations in which the insurance contract might be deemed ambiguous. Regardless of ambiguity or lack thereof, our courts have reviewed the totality of the underlying circumstances.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a23045_08.pdf
Trial court judgment in favor of the insured affirmed on appeal. The case involved a "sinkhole endorsement" to a homeowner's policy, which the court found ambiguous as a matter of law and "insufficiently clear to put the policyholder on notice of what the endorsement actually covered...."
Although the interpretation of insurance policies, like all contracts, depends on the intention of the parties, courts also consider all the circumstances, including the object to be accomplished. Contract principes have only limited application in insurance cases. Our courts have often observed that “‘normal’ contract principles do not apply to insurance transactions.”
The "proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured.” This rule of "reasonable expectations" is "not limited only to situations in which the insurance contract might be deemed ambiguous. Regardless of ambiguity or lack thereof, our courts have reviewed the totality of the underlying circumstances.
UC - independent contractor - barber
Glatfelter Barber Shop v. UCBR- September 24, 2008 - Commonwealth Court (2-1)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1736CD07_9-24-08.pdf
The court affirmed the Board decision that the claimant was an employee rather than an independent contractor, and thus was not disqualified under sec. 402(h) of the UC Law, 43 P.S. § 802(h).
The court said that there is a presumption that the claimant was an employee (without citing cases), and that the employer had not overcome that with contrary evidence. The court also held that the claimant was not engaged In an independently established trade, occupation, profession or business, citing Viktor v. DOLI, 586 Pa. 196, 892 A.2d 781 (2006).
Finally, the court held that claimant's refusal to sign a non-compete agreement was not willful misconduct, citing Zimmerman v. UCBR, 836 A.2d 1074, 1080-81 (Pa. Cmwlth. 2003) (the refusal to sign an agreement presented to a claimant more as an ultimatum than a matter to be negotiated does not constitute willful misconduct.)
There was a lengthy dissent, arguing that the Board decision was arbitrary and capricious.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1736CD07_9-24-08.pdf
The court affirmed the Board decision that the claimant was an employee rather than an independent contractor, and thus was not disqualified under sec. 402(h) of the UC Law, 43 P.S. § 802(h).
The court said that there is a presumption that the claimant was an employee (without citing cases), and that the employer had not overcome that with contrary evidence. The court also held that the claimant was not engaged In an independently established trade, occupation, profession or business, citing Viktor v. DOLI, 586 Pa. 196, 892 A.2d 781 (2006).
Finally, the court held that claimant's refusal to sign a non-compete agreement was not willful misconduct, citing Zimmerman v. UCBR, 836 A.2d 1074, 1080-81 (Pa. Cmwlth. 2003) (the refusal to sign an agreement presented to a claimant more as an ultimatum than a matter to be negotiated does not constitute willful misconduct.)
There was a lengthy dissent, arguing that the Board decision was arbitrary and capricious.
Thursday, September 18, 2008
disability - failure to consider evidence - remand
Magid v. Astrue - ED Pa. - September 18, 2008
http://www.paed.uscourts.gov/documents/opinions/08D1109P.pdf
The ALJ failed to mention--and presumably consider--the opinion of an examining state agency psychologist, Dr. Gensemer.
"In coming to the determination that Magid did not have any mental limitations that would prevent him from performing “at least semi-skilled work,” it is unclear whether or not the ALJ completely ignored Dr. Gensemer’s opinion. Thus, the case must be remanded for the ALJ to reconsider the medical evidence in the record regarding Magid’s mental limitations and explain his reasoning for accepting and rejecting the various opinions. See Burnett v. Comm’r of Social Sec. Admin., 220 F.3d 112, 121-22 (3d Cir. 2000).
"The above analysis demonstrates that the ALJ failed to fully consider the record before him, and thus, the court will not make a ruling on Magid’s remaining arguments regarding whether or not the ALJ erred in determining that Magid could perform medium work and return to his past relevant work. "
http://www.paed.uscourts.gov/documents/opinions/08D1109P.pdf
The ALJ failed to mention--and presumably consider--the opinion of an examining state agency psychologist, Dr. Gensemer.
"In coming to the determination that Magid did not have any mental limitations that would prevent him from performing “at least semi-skilled work,” it is unclear whether or not the ALJ completely ignored Dr. Gensemer’s opinion. Thus, the case must be remanded for the ALJ to reconsider the medical evidence in the record regarding Magid’s mental limitations and explain his reasoning for accepting and rejecting the various opinions. See Burnett v. Comm’r of Social Sec. Admin., 220 F.3d 112, 121-22 (3d Cir. 2000).
"The above analysis demonstrates that the ALJ failed to fully consider the record before him, and thus, the court will not make a ruling on Magid’s remaining arguments regarding whether or not the ALJ erred in determining that Magid could perform medium work and return to his past relevant work. "
UC - willful misconduct - conscious disregard
Patterson v. UCBR - Commonwealth Court - September 12, 2008 - unreported memorandum opinion
http://www.courts.state.pa.us/OpPosting/CWealth/out/1741CD07_9-12-08.pdf
Housekeeper not guilty of willful misconduct because employer did not show willful/intentional violation of his job duties, only that his performance fell below employer standards.
The court relied on Rung v. UCBR, 689 A.2d 999 (Pa. Cmwlth. 1997), holding that there must be any intentional disregard of the employer's interests, and BK Foods v. UCBR, 547 A.2d 873 (Pa. Cmwlth. 1988), holding that there is a differenence between "mere incompetence, inexperience or inability" and a "conscious disregard of the employer's interest." McCrea v. UCBR, 487 A.2d 69 (Pa. Cmwlth 1986).
There was no showing here of conscious disregard or unwillingness to to work to the best of his ability. Even under the Board's own findings, the most that was shown was a possible mistake about work assignments.
There was a dissent, stating the evidence showed that claimant knew what was he was supposed to do but didn't do it.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1741CD07_9-12-08.pdf
Housekeeper not guilty of willful misconduct because employer did not show willful/intentional violation of his job duties, only that his performance fell below employer standards.
The court relied on Rung v. UCBR, 689 A.2d 999 (Pa. Cmwlth. 1997), holding that there must be any intentional disregard of the employer's interests, and BK Foods v. UCBR, 547 A.2d 873 (Pa. Cmwlth. 1988), holding that there is a differenence between "mere incompetence, inexperience or inability" and a "conscious disregard of the employer's interest." McCrea v. UCBR, 487 A.2d 69 (Pa. Cmwlth 1986).
There was no showing here of conscious disregard or unwillingness to to work to the best of his ability. Even under the Board's own findings, the most that was shown was a possible mistake about work assignments.
There was a dissent, stating the evidence showed that claimant knew what was he was supposed to do but didn't do it.
Thursday, September 11, 2008
UC- willful misconduct - mental illness - evidence
Seneca Valley School District v. UCBR - Commonwealth Court - September 9, 2008 - UNREPORTED MEMORANDUM OPINION
http://www.courts.state.pa.us/OpPosting/CWealth/out/267CD08_9-9-08.pdf
Teacher established good cause for her conduct. There was substantial evidence--the required expert medical evidence, Dept. of Navy v. UCBR, 632 A.2d 622 (Pa. Cmwlth. 1993), from the employer's own witness--to support its finding that claimant's behavior was excused because it was caused by mental illness.
That evidence showed that claimant's conduct was caused by a brief psychotic episode from which she had recovered, and that she was presently able to work.
The employer's claim that its own witness's testimony about its own psychiatrist's findings was hearsay was rejected. The court held that it came under the "admission against interest" exception, a voluntary acknowledgment by a party of the truth of facts which are inconsistent with the party's claim in an action. Such evidence has a "high evidentiary value" and is accepted on the assumption that a witness would not say anything against his interest unless it were true.
http://www.courts.state.pa.us/OpPosting/CWealth/out/267CD08_9-9-08.pdf
Teacher established good cause for her conduct. There was substantial evidence--the required expert medical evidence, Dept. of Navy v. UCBR, 632 A.2d 622 (Pa. Cmwlth. 1993), from the employer's own witness--to support its finding that claimant's behavior was excused because it was caused by mental illness.
That evidence showed that claimant's conduct was caused by a brief psychotic episode from which she had recovered, and that she was presently able to work.
The employer's claim that its own witness's testimony about its own psychiatrist's findings was hearsay was rejected. The court held that it came under the "admission against interest" exception, a voluntary acknowledgment by a party of the truth of facts which are inconsistent with the party's claim in an action. Such evidence has a "high evidentiary value" and is accepted on the assumption that a witness would not say anything against his interest unless it were true.
UC - voluntary quit - conscious intention
Subway List, Inc. v. UCBR - Commonwealth Court - September 5, 2008 - unreported memorandum opinion
http://www.courts.state.pa.us/OpPosting/CWealth/out/2258CD07_9-5-08.pdf
Held that totality of circumstances, the claimant did not show the required "conscious intention to voluntarily quit her job," even when she failed to complete a questionnaire by the time specified by her employer, June 30th.
She was out on a medical leave and did send the employer a letter, received on July 1st, saying that she would respond more precisely after an upcoming checkup. Her "inability to predict the circumstances regarding her return to work did not demonstrate an intention to quit"
Nor were her actions willful misconduct. "The letters that Claimant sent served the same purpose of advising employer of her intentions....Claimant reasonably attempted to comply with employer's request and...her actions did not constitute willful misconduct."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2258CD07_9-5-08.pdf
Held that totality of circumstances, the claimant did not show the required "conscious intention to voluntarily quit her job," even when she failed to complete a questionnaire by the time specified by her employer, June 30th.
She was out on a medical leave and did send the employer a letter, received on July 1st, saying that she would respond more precisely after an upcoming checkup. Her "inability to predict the circumstances regarding her return to work did not demonstrate an intention to quit"
Nor were her actions willful misconduct. "The letters that Claimant sent served the same purpose of advising employer of her intentions....Claimant reasonably attempted to comply with employer's request and...her actions did not constitute willful misconduct."
Wednesday, September 10, 2008
UC - reconsideration - new evidence - second bite at the apple
Rose v. UCBR - September 9, 2008 - unreported memorandum decision
http://www.courts.state.pa.us/OpPosting/CWealth/out/145CD08_9-9-08.pdf
The regulation at 34 Pa. Code §101.1116 provides that an aggrieved party may request the Board to reconsider its decision. The Board’s “decision to grant or deny a request for reconsideration is a matter of administrative discretion, this Court’s scope of review of that decision is limited to determining whether the agency abused its discretion.”
Section 101.111(b) provides that the Board will grant a request for reconsideration for “good cause.” In determining whether “good cause” exists, the agency must consider whether the party requesting reconsideration has identified new circumstances or whether the agency failed to consider relevant law.
An offer to provide additional evidence does not constitute good cause unless it can be shown that this “new” evidence was not available at the time of the Referee’s hearing.
Save exceptional circumstances, this Court simply does not allow a party “the proverbial second bite at the apple.” Primecare Medical, Inc. v. Unemployment Compensation Board of Review, 760 A.2d 483, 488 (Pa. Cmwlth. 2000)
http://www.courts.state.pa.us/OpPosting/CWealth/out/145CD08_9-9-08.pdf
The regulation at 34 Pa. Code §101.1116 provides that an aggrieved party may request the Board to reconsider its decision. The Board’s “decision to grant or deny a request for reconsideration is a matter of administrative discretion, this Court’s scope of review of that decision is limited to determining whether the agency abused its discretion.”
Section 101.111(b) provides that the Board will grant a request for reconsideration for “good cause.” In determining whether “good cause” exists, the agency must consider whether the party requesting reconsideration has identified new circumstances or whether the agency failed to consider relevant law.
An offer to provide additional evidence does not constitute good cause unless it can be shown that this “new” evidence was not available at the time of the Referee’s hearing.
Save exceptional circumstances, this Court simply does not allow a party “the proverbial second bite at the apple.” Primecare Medical, Inc. v. Unemployment Compensation Board of Review, 760 A.2d 483, 488 (Pa. Cmwlth. 2000)
due process - emergency - post-deprivation hearing
Elsmere Park Club v. Town of Elsmere - 3d Circuit - September 9, 2008
http://www.ca3.uscourts.gov/opinarch/071821p.pdf
Town condemned apartment complex because of mold and sewage problems.
Held: No pre-deprivation hearing was required because of "exception circumstances" and need for prompt government action, e.g. threat to public health of safety.
The post-deprivation process that was offered--and which owner abandoned--was held to be adequate.
http://www.ca3.uscourts.gov/opinarch/071821p.pdf
Town condemned apartment complex because of mold and sewage problems.
Held: No pre-deprivation hearing was required because of "exception circumstances" and need for prompt government action, e.g. threat to public health of safety.
The post-deprivation process that was offered--and which owner abandoned--was held to be adequate.
federal courts - pleading
Umland v. Planco Financial Services - Third Circuit - Septembe 9, 2008
http://www.ca3.uscourts.gov/opinarch/064688p.pdf
In light of the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955 (2007), we have cautioned that the factual allegations in the complaint must not be “so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
In addition, “it is no longer sufficient to allege mere elements of a cause of action; instead ‘a complaint must allege facts suggestive of [the proscribed] conduct.’ ” Id. (alteration in original) (quoting Twombly, 127 S. Ct. at 1969 n.8).
We have interpreted Twombly’s emphasis on “plausibility” to mean that the complaint’s “ ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ ” Id. at 234 (quoting Twombly, 127 S. Ct. at 1965).
__._,_.___
http://www.ca3.uscourts.gov/opinarch/064688p.pdf
In light of the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955 (2007), we have cautioned that the factual allegations in the complaint must not be “so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
In addition, “it is no longer sufficient to allege mere elements of a cause of action; instead ‘a complaint must allege facts suggestive of [the proscribed] conduct.’ ” Id. (alteration in original) (quoting Twombly, 127 S. Ct. at 1969 n.8).
We have interpreted Twombly’s emphasis on “plausibility” to mean that the complaint’s “ ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ ” Id. at 234 (quoting Twombly, 127 S. Ct. at 1965).
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