SUPREME COURT OF THE UNITED STATES
SUMMERS ET AL. v. EARTH ISLAND INSTITUTE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 07–463. Argued October 8, 2008—Decided March 3, 2009
After the U. S. Forest Service approved the Burnt Ridge Project, a salvage sale of timber on 238 acres of fire-damaged federal land, respondent environmentalist organizations filed suit to enjoin the Service from applying its regulations exempting such small sales fromthe notice, comment, and appeal process it uses for more significant land management decisions, and to challenge other regulations thatdid not apply to Burnt Ridge. The District Court granted a preliminary injunction against the sale, and the parties then settled theirdispute as to Burnt Ridge. Although concluding that the sale was no longer at issue, and despite the Government’s argument that respondents therefore lacked standing to challenge the regulations, thecourt nevertheless proceeded to adjudicate the merits of their challenges, invalidating several regulations, including the notice and comment and the appeal provisions. Among its rulings, the NinthCircuit affirmed the determination that the latter regulations, which were applicable to Burnt Ridge, were contrary to law, but held that challenges to other regulations not at issue in that project were not ripe for adjudication.
Held: Respondents lack standing to challenge the regulations still atissue absent a live dispute over a concrete application of those regulations. Pp. 4–12.
(a) In limiting the judicial power to "Cases" and "Controversies," Article III restricts it to redressing or preventing actual or imminently threatened injury to persons caused by violation of law. See, e.g., Lujan v. Defenders of Wildlife, 504 U. S. 555, 559–560. The standing doctrine reflects this fundamental limitation, requiring that "the plaintiff . . . ‘alleg[e] such a personal stake in the outcome of thecontroversy’ as to warrant his invocation of federal-court jurisdiction," Warth v. Seldin, 422 U. S. 490, 498–499. Here, respondentscan demonstrate standing only if application of the regulations will affect them in such a manner. Pp. 4–5.
(b) As organizations, respondents can assert their members’ standing. Harm to their members’ recreational, or even their mere esthetic, interests in the National Forests will suffice to establish the requisite concrete and particularized injury, see Sierra Club v. Morton, 405 U. S. 727, 734–736, but generalized harm to the forest or the environment will not alone suffice. Respondents have identified noapplication of the invalidated regulations that threatens imminentand concrete harm to their members’ interests. Respondents’ argument that they have standing based on Burnt Ridge fails because, after voluntarily settling the portion of their lawsuit relevant to Burnt Ridge, respondents and their members are no longer under threat of injury from that project. The remaining affidavit submitted in support of standing fails to establish that any member has concrete plans to visit a site where the challenged regulations are being applied in a manner that will harm that member’s concrete interests. Additional affidavits purporting to establish standing were submitted after judgment had already been entered and notice of appeal filed,and are thus untimely. Pp. 5–8.
(c) Respondents’ argument that they have standing because they have suffered procedural injury—i.e., they have been denied the ability to file comments on some Forest Service actions and will continueto be so denied—fails because such a deprivation without some concrete interest affected thereby is insufficient to create Article III standing. See, e.g., Defenders of Wildlife, supra, at 572, n. 7. Pp. 8–9.
(d) The dissent’s objections are addressed and rejected. Pp. 9–12. 490 F. 3d 687, reversed in part and affirmed in part.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
Thursday, March 05, 2009
federal courts - pre-emption - drug warnings
SUPREME COURT OF THE UNITED STATES - WYETH v. LEVINE
CERTIORARI TO THE SUPREME COURT OF VERMONT
No. 06–1249. Argued November 3, 2008—Decided March 4, 2009
Petitioner Wyeth manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the "IVpush" method, whereby a drug is injected directly into a patient’s vein, the drug entered Levine’s artery, she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that Levine’s injury would not have occurred if Phenergan’s label includedan adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as aprofessional musician. Declining to overturn the verdict, the trial court rejected Wyeth’s argument that Levine’s failure-to-warn claimswere pre-empted by federal law because Phenergan’s labeling hadbeen approved by the federal Food and Drug Administration (FDA). The Vermont Supreme Court affirmed.
Held: Federal law does not pre-empt Levine’s claim that Phenergan’slabel did not contain an adequate warning about the IV-push method of administration. Pp. 6–25.
(a) The argument that Levine’s state-law claims are pre-empted because it is impossible for Wyeth to comply with both the state-law duties underlying those claims and its federal labeling duties is rejected. Although a manufacturer generally may change a drug labelonly after the FDA approves a supplemental application, the agency’s"changes being effected" (CBE) regulation permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety. Pursuant to the CBE regulation, Wyeth could have unilaterally added a stronger warning about IV-push administration,and there is no evidence that the FDA would ultimately have rejected such a labeling change. Wyeth’s cramped reading of the CBE regulation and its broad assertion that unilaterally changing the Phenerganlabel would have violated federal law governing unauthorized distribution and misbranding of drugs are based on the fundamental misunderstanding that the FDA, rather than the manufacturer, bearsprimary responsibility for drug labeling. It is a central premise of theFood, Drug, and Cosmetic Act (FDCA) and the FDA’s regulationsthat the manufacturer bears responsibility for the content of its label at all times. Pp. 11–16.
(b) Wyeth’s argument that requiring it to comply with a state-law duty to provide a stronger warning would interfere with Congress’ purpose of entrusting an expert agency with drug labeling decisions is meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to preempt state law. The history of the FDCA shows that Congress didnot intend to pre-empt state-law failure-to-warn actions. In advancing the argument that the FDA must be presumed to have established a specific labeling standard that leaves no room for different state-law judgments, Wyeth relies not on any statement by Congress but on the preamble to a 2006 FDA regulation declaring that statelaw failure-to-warn claims threaten the FDA’s statutorily prescribed role. Although an agency regulation with the force of law can preempt conflicting state requirements, this case involves no such regulation but merely an agency’s assertion that state law is an obstacleto achieving its statutory objectives. Where, as here, Congress has not authorized a federal agency to pre-empt state law directly, theweight this Court accords the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency,and persuasiveness. Cf., e.g., Skidmore v. Swift & Co., 323 U. S. 134. Under this standard, the FDA’s 2006 preamble does not merit deference: It is inherently suspect in light of the FDA’s failure to offer interested parties notice or opportunity for comment on the preemption question; it is at odds with the available evidence of Congress’ purposes; and it reverses the FDA’s own longstanding positionthat state law is a complementary form of drug regulation without providing a reasoned explanation. Geier v. American Honda Motor Co., 529 U. S. 861, is distinguished. Pp. 17–25.
___ Vt. ___, 944 A. 2d 179, affirmed.
STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA, J., joined.
CERTIORARI TO THE SUPREME COURT OF VERMONT
No. 06–1249. Argued November 3, 2008—Decided March 4, 2009
Petitioner Wyeth manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the "IVpush" method, whereby a drug is injected directly into a patient’s vein, the drug entered Levine’s artery, she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that Levine’s injury would not have occurred if Phenergan’s label includedan adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as aprofessional musician. Declining to overturn the verdict, the trial court rejected Wyeth’s argument that Levine’s failure-to-warn claimswere pre-empted by federal law because Phenergan’s labeling hadbeen approved by the federal Food and Drug Administration (FDA). The Vermont Supreme Court affirmed.
Held: Federal law does not pre-empt Levine’s claim that Phenergan’slabel did not contain an adequate warning about the IV-push method of administration. Pp. 6–25.
(a) The argument that Levine’s state-law claims are pre-empted because it is impossible for Wyeth to comply with both the state-law duties underlying those claims and its federal labeling duties is rejected. Although a manufacturer generally may change a drug labelonly after the FDA approves a supplemental application, the agency’s"changes being effected" (CBE) regulation permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety. Pursuant to the CBE regulation, Wyeth could have unilaterally added a stronger warning about IV-push administration,and there is no evidence that the FDA would ultimately have rejected such a labeling change. Wyeth’s cramped reading of the CBE regulation and its broad assertion that unilaterally changing the Phenerganlabel would have violated federal law governing unauthorized distribution and misbranding of drugs are based on the fundamental misunderstanding that the FDA, rather than the manufacturer, bearsprimary responsibility for drug labeling. It is a central premise of theFood, Drug, and Cosmetic Act (FDCA) and the FDA’s regulationsthat the manufacturer bears responsibility for the content of its label at all times. Pp. 11–16.
(b) Wyeth’s argument that requiring it to comply with a state-law duty to provide a stronger warning would interfere with Congress’ purpose of entrusting an expert agency with drug labeling decisions is meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to preempt state law. The history of the FDCA shows that Congress didnot intend to pre-empt state-law failure-to-warn actions. In advancing the argument that the FDA must be presumed to have established a specific labeling standard that leaves no room for different state-law judgments, Wyeth relies not on any statement by Congress but on the preamble to a 2006 FDA regulation declaring that statelaw failure-to-warn claims threaten the FDA’s statutorily prescribed role. Although an agency regulation with the force of law can preempt conflicting state requirements, this case involves no such regulation but merely an agency’s assertion that state law is an obstacleto achieving its statutory objectives. Where, as here, Congress has not authorized a federal agency to pre-empt state law directly, theweight this Court accords the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency,and persuasiveness. Cf., e.g., Skidmore v. Swift & Co., 323 U. S. 134. Under this standard, the FDA’s 2006 preamble does not merit deference: It is inherently suspect in light of the FDA’s failure to offer interested parties notice or opportunity for comment on the preemption question; it is at odds with the available evidence of Congress’ purposes; and it reverses the FDA’s own longstanding positionthat state law is a complementary form of drug regulation without providing a reasoned explanation. Geier v. American Honda Motor Co., 529 U. S. 861, is distinguished. Pp. 17–25.
___ Vt. ___, 944 A. 2d 179, affirmed.
STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA, J., joined.
Wednesday, March 04, 2009
UC - willful misconduct - nolo contendere plea
Smith v. UCBR - Cmwlth. Court - February 27, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1760CD08_2-27-09.pdf
A nolo contendre plea to theft by deception "essentially constituted an admission of the facts charged in the underlying criminal proceedings" and constituted substantial evidence of willful misconduct under sec. 402(e) and fault under sec. 3
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1760CD08_2-27-09.pdf
A nolo contendre plea to theft by deception "essentially constituted an admission of the facts charged in the underlying criminal proceedings" and constituted substantial evidence of willful misconduct under sec. 402(e) and fault under sec. 3
Thursday, February 19, 2009
UC - subpoena - standard for granting
Alston v. UCBR - Cmwlth. Court - February 19, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf
The court reversed the UCBR decision on the merits and remanded the case for a hearing with claimant witnesses whom the referee improperly refused to subpoena.
The court rejected the Board's claim that the witnesses' evidence would be "directly contradictory" to that of the employer and held that it need only lead to "relevant and provative evidence," citing Hamilton v. UCBR, 532 A.2d A.2d 535, 537 (Pa. Cmwlth. 1987).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf
The court reversed the UCBR decision on the merits and remanded the case for a hearing with claimant witnesses whom the referee improperly refused to subpoena.
The court rejected the Board's claim that the witnesses' evidence would be "directly contradictory" to that of the employer and held that it need only lead to "relevant and provative evidence," citing Hamilton v. UCBR, 532 A.2d A.2d 535, 537 (Pa. Cmwlth. 1987).
UC - appeal letter - pro se litigant
Alston v. UCBR - Cmwlth. Court - February 19, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf
A letter to the court served as an appeal under Pa. RAP 1514(a) and sec. 67.13 of court internal operating procedure, which gives a pro se claimant 30 days from receipt of timely appeal letter in which to file a proper petition for review.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf
A letter to the court served as an appeal under Pa. RAP 1514(a) and sec. 67.13 of court internal operating procedure, which gives a pro se claimant 30 days from receipt of timely appeal letter in which to file a proper petition for review.
Wednesday, January 28, 2009
arbitration - class action - no stay as to plaintiffs whose contracts do not have arbitration clause
Mendez, et al. v. Puerto Rican International Companies - 3d Cir. - January 26, 2009
http://www.ca3.uscourts.gov/opinarch/074053p.pdf
The issue for resolution is whether a defendant who is entitled to arbitrate an issue which it has with one plaintiff in a suit can insist on a mandatory stay of litigation of issues it has with other plaintiffs who are not committed to arbitrate those issues. We conclude that Section 3 was not intended to mandate curtailment of the litigation rights of anyone who has not agreed to arbitrate any of the issues before the court.
We acknowledge at the outset that Section 3 can be read literally to confer a right to a mandatory stay in the context of this case. Section 3 is an integral part of a statutory scheme, however, and reading it in the context of the FAA as a whole, we decline to attribute that intent to Congress.
The purpose of the FAA is to render agreements to arbitrate fully enforceable. 9 U.S.C. § 2 (a contract to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”). The purpose of Section 3, in particular, is to guarantee that a party who has secured the agreement of another to arbitrate rather than litigate a dispute will reap the full benefits of its bargain. In short, the “liberal policy ‘favoring arbitration agreements . . . is at bottom a policy guaranteeing the enforcement of private contractual arrangements.’”
Accordingly, “under the FAA, ‘a court may compel a party to arbitrate where that party has entered into a written agreement to arbitrate that covers the dispute.’” Because Congress thus limited the rights it created in the FAA to situations involving corresponding obligations voluntarily assumed by another, we decline appellants’ invitation to interpret Section 3 in a way that would mandate the imposition of a material burden on a party’s right to litigate claims it has not agreed to arbitrate.
While Section 3, as appellants read it, would postpone rather than eliminate a party’s right to litigate its claims against another, it would nevertheless defer that right for the duration of a proceeding over which the constrained party has no control and would deprive the Court of any discretion to consider the impact of that delay on that party. We find no persuasive evidence in the FAA for sanctioning such a burden.
http://www.ca3.uscourts.gov/opinarch/074053p.pdf
The issue for resolution is whether a defendant who is entitled to arbitrate an issue which it has with one plaintiff in a suit can insist on a mandatory stay of litigation of issues it has with other plaintiffs who are not committed to arbitrate those issues. We conclude that Section 3 was not intended to mandate curtailment of the litigation rights of anyone who has not agreed to arbitrate any of the issues before the court.
We acknowledge at the outset that Section 3 can be read literally to confer a right to a mandatory stay in the context of this case. Section 3 is an integral part of a statutory scheme, however, and reading it in the context of the FAA as a whole, we decline to attribute that intent to Congress.
The purpose of the FAA is to render agreements to arbitrate fully enforceable. 9 U.S.C. § 2 (a contract to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”). The purpose of Section 3, in particular, is to guarantee that a party who has secured the agreement of another to arbitrate rather than litigate a dispute will reap the full benefits of its bargain. In short, the “liberal policy ‘favoring arbitration agreements . . . is at bottom a policy guaranteeing the enforcement of private contractual arrangements.’”
Accordingly, “under the FAA, ‘a court may compel a party to arbitrate where that party has entered into a written agreement to arbitrate that covers the dispute.’” Because Congress thus limited the rights it created in the FAA to situations involving corresponding obligations voluntarily assumed by another, we decline appellants’ invitation to interpret Section 3 in a way that would mandate the imposition of a material burden on a party’s right to litigate claims it has not agreed to arbitrate.
While Section 3, as appellants read it, would postpone rather than eliminate a party’s right to litigate its claims against another, it would nevertheless defer that right for the duration of a proceeding over which the constrained party has no control and would deprive the Court of any discretion to consider the impact of that delay on that party. We find no persuasive evidence in the FAA for sanctioning such a burden.
Tuesday, January 27, 2009
disability - attorney fees - subantially justified
Magwood v. Astrue - ED Pa. - January 21, 2009
http://www.paed.uscourts.gov/documents/opinions/09D0086P.pdf
Government's position was not substantially justified where it was contrary to clearly established law concerning step 2 (severity) of the disability evaluation process. The government's prior "string of successes" before a 3d Cir. reversal was not enough to satisfy its burden.
A fee of $12,275.21 was awarded (68.30 hours at a rate of $176.23, plus $238.70 for expenses)
http://www.paed.uscourts.gov/documents/opinions/09D0086P.pdf
Government's position was not substantially justified where it was contrary to clearly established law concerning step 2 (severity) of the disability evaluation process. The government's prior "string of successes" before a 3d Cir. reversal was not enough to satisfy its burden.
A fee of $12,275.21 was awarded (68.30 hours at a rate of $176.23, plus $238.70 for expenses)
mortgage foreclosure - defective Act 91 - prejudice
Wells Fargo v. Monroe - Superior Court - January 26, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s71014_08.pdf
An allegedly defective* Act 91 notice was held not to be a defense to a foreclosure action when the mortgagors were given and availed themselves of the opportunity to pursue mortgage assistance through the HEMAP program.
They met with a credit counseling agency within the 30, as provided by the Act 91 Notice, and applied for mortgage assistance, which was ultimately denied. Under these circumstances, no prejudice could be presumed because of lack of compliance with the Act 91 requirements, and no prejudice was shown.
The " trial court did not abuse its discretion in finding that the Act 91 Notice sufficiently apprised the Monroes of their options with regard to the aid to which they were entitled. Therefore, the trial court’s grant of the motion for summary judgment filed by Wells Fargo was proper."
*The Act 91 notice was alleged to be defective for lack of notation of a place to cure and the inclusion of improper fees.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s71014_08.pdf
An allegedly defective* Act 91 notice was held not to be a defense to a foreclosure action when the mortgagors were given and availed themselves of the opportunity to pursue mortgage assistance through the HEMAP program.
They met with a credit counseling agency within the 30, as provided by the Act 91 Notice, and applied for mortgage assistance, which was ultimately denied. Under these circumstances, no prejudice could be presumed because of lack of compliance with the Act 91 requirements, and no prejudice was shown.
The " trial court did not abuse its discretion in finding that the Act 91 Notice sufficiently apprised the Monroes of their options with regard to the aid to which they were entitled. Therefore, the trial court’s grant of the motion for summary judgment filed by Wells Fargo was proper."
*The Act 91 notice was alleged to be defective for lack of notation of a place to cure and the inclusion of improper fees.
attorney fees - lease - prevailing party
Bayne v. Smith - Superior Court - January 26, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a28016_08.pdf
The court reversed the trial court and held that the lease was not an adhesion contract and that the attorney fee provision was not unconscionable. The tenant did not show a lack of meaningful choice about whether to accept the provision, or that the provision unreasonably favored the landlord.
The court held that critical language in Galligan v. Arovitch, 421 Pa. 301[, 219 A.2d 463] (1966), was mere dicta. It found that the trial court’s reliance on Galligan and Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 485-486, 329 A.2d 812, 830 (1974)] was "misplaced" and the the tenant "failed to satisfy her burden as to unconscionability."
The fee provision in question would have allowed the tenant to recover attorney fees from the landlord had she prevailed in her defense. It gave the "prevailing party" the right to recover fees.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a28016_08.pdf
The court reversed the trial court and held that the lease was not an adhesion contract and that the attorney fee provision was not unconscionable. The tenant did not show a lack of meaningful choice about whether to accept the provision, or that the provision unreasonably favored the landlord.
The court held that critical language in Galligan v. Arovitch, 421 Pa. 301[, 219 A.2d 463] (1966), was mere dicta. It found that the trial court’s reliance on Galligan and Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 485-486, 329 A.2d 812, 830 (1974)] was "misplaced" and the the tenant "failed to satisfy her burden as to unconscionability."
The fee provision in question would have allowed the tenant to recover attorney fees from the landlord had she prevailed in her defense. It gave the "prevailing party" the right to recover fees.
discovery - sanctions - Pa. courts
Cove Centre, Inc. v. Westhafer Construction Co. - Superior Court - January 26, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a32023_08.pdf
Where a discovery sanction either terminates the action directly or would result in its termination by operation of law, the court must consider multiple factors balanced together with the necessity of the sanction.(1) the nature and severity of the discovery violation;(2) the defaulting party's willfulness or bad faith;(3) prejudice to the opposing party;(4) the ability to cure the prejudice; and(5) the importance of the precluded evidence in light of the failure to comply.
With few exceptions, there is no greater sanction in a civil case than a deemed admission of a Request for Admission, as well as preclusion of expert testimony and entry of judgment, so a balancing of the equities emphasizing the nature and motive of the non-compliant party’s conduct is mandatory.
The mere failure of an unrepresented party to comply with discovery rules does not amount to “willfulness or bad faith” as contemplated by case law.
As concerns potential prejudice occasioned by the failure to comply with discovery, the record discloses no hardship to the party seeking sanctions which is not readily remedied upon remand.
The party never filed a Motion to Compel Discovery so as to invoke the trial court’s authority in the interest of advancing the litigation and minimizing delay, which has now been extended by the necessity of this appeal. Moreover, the violations in question did not result in a loss of evidence favorable to the movant. Compliance with the discovery requests in question, even at this late date, would allow the matter to proceed to a full and fair resolution.Compared to the extraordinary prejudice of a sanction order that the trial court has since repudiated, the prejudice to the movant imposed by the failure to comply with discovery is minimal.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a32023_08.pdf
Where a discovery sanction either terminates the action directly or would result in its termination by operation of law, the court must consider multiple factors balanced together with the necessity of the sanction.(1) the nature and severity of the discovery violation;(2) the defaulting party's willfulness or bad faith;(3) prejudice to the opposing party;(4) the ability to cure the prejudice; and(5) the importance of the precluded evidence in light of the failure to comply.
With few exceptions, there is no greater sanction in a civil case than a deemed admission of a Request for Admission, as well as preclusion of expert testimony and entry of judgment, so a balancing of the equities emphasizing the nature and motive of the non-compliant party’s conduct is mandatory.
The mere failure of an unrepresented party to comply with discovery rules does not amount to “willfulness or bad faith” as contemplated by case law.
As concerns potential prejudice occasioned by the failure to comply with discovery, the record discloses no hardship to the party seeking sanctions which is not readily remedied upon remand.
The party never filed a Motion to Compel Discovery so as to invoke the trial court’s authority in the interest of advancing the litigation and minimizing delay, which has now been extended by the necessity of this appeal. Moreover, the violations in question did not result in a loss of evidence favorable to the movant. Compliance with the discovery requests in question, even at this late date, would allow the matter to proceed to a full and fair resolution.Compared to the extraordinary prejudice of a sanction order that the trial court has since repudiated, the prejudice to the movant imposed by the failure to comply with discovery is minimal.
Monday, January 26, 2009
contracts - right-to-cure clause - incurable breach
LJL Transportation v. Pilot Air Freight Corp. - Pa. Supreme Court - January 22, 2009
http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-60-2008mo.pdf
Held: A party’s conduct in breaching a francise agreement can may justify its immediate termination, even if the contract includes an express provision granting the breaching party the right to cure before the contract is terminated, when there is a material breach of the contract so serious it goes directly to the heart and essence of the contract, rendering the breach incurable.
The wrongful conduct consisted of plaintiff's admittedly dishonest, indefensible diversion of business to defendant's competitor.
The court looked to the law of other states, which had adopted the “Williston view,” which provides, “Unless a contract provision for termination for breach is in terms exclusive . . . it is a cumulative remedy and does not bar the ordinary remedy of termination for a breach which is material or which goes to the root of the matter or essence of the contract.” Williston, A Treatise on The Law of Contracts, § 842, 165 n.1 (3d. ed. 1962).
http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-60-2008mo.pdf
Held: A party’s conduct in breaching a francise agreement can may justify its immediate termination, even if the contract includes an express provision granting the breaching party the right to cure before the contract is terminated, when there is a material breach of the contract so serious it goes directly to the heart and essence of the contract, rendering the breach incurable.
The wrongful conduct consisted of plaintiff's admittedly dishonest, indefensible diversion of business to defendant's competitor.
The court looked to the law of other states, which had adopted the “Williston view,” which provides, “Unless a contract provision for termination for breach is in terms exclusive . . . it is a cumulative remedy and does not bar the ordinary remedy of termination for a breach which is material or which goes to the root of the matter or essence of the contract.” Williston, A Treatise on The Law of Contracts, § 842, 165 n.1 (3d. ed. 1962).
diability - examining physician opinion
Brownawell v. Commissioner - 3d Cir. - Dec. 9, 2008
http://www.ca3.uscourts.gov/opinarch/074405p.pdf
The appellate court entered an outright reversal and directed the payment of benefits, because
- the decision to deny benefits was improperly based on a number of erroneous facts and discredits the opinions of two examining doctors (who clearly considered her to be disabled), improperly favoring the opinion of a non-examining psychologist, and
- because substantial evidence on a fully developed record indicates that Brownawell is disabled.
http://www.ca3.uscourts.gov/opinarch/074405p.pdf
The appellate court entered an outright reversal and directed the payment of benefits, because
- the decision to deny benefits was improperly based on a number of erroneous facts and discredits the opinions of two examining doctors (who clearly considered her to be disabled), improperly favoring the opinion of a non-examining psychologist, and
- because substantial evidence on a fully developed record indicates that Brownawell is disabled.
Wednesday, January 21, 2009
birth registration - "gestational carrier"
In re I.L.P. - Superior Court - January 21, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A30027_08.pdf
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A30027_08.pdf
Friday, January 16, 2009
employment - wages - "hours worked" - donning and doffing
Lugo, et al. v. Farmers Pride, Inc. - Superior Court - January 15, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a10011_08.pdf
Dismissal of employees wage claims reversed on appeal.
The Pennsylvnaia Minimum Wage Act requires that certain minimum wages be paid for all “hours worked.” 43 P.S. § 333.104(a). The focal point of the issue before us is whether the concept of “hours worked” includes, under the PMWA, the time that appellants spent donning, doffing, and sanitizing their protective gear for their work in a chicken processing plant.
"The answer, under the facts of this case, is found in the regulations promulgated in support of the Pennsylvnaia Minimum Wage Act, which defines “hours worked” to include "time during which an employee is required by the employer to be on the premises of the employer, to be on duty or to be at the prescribed work place, time spent in traveling as part of the duties of the employee during normal working hours and time during which an employee is employed or permitted to work...." 34 Pa.Code § 231.1" Under that definition, the time spent donning, doffing, and sanitizing work gear is included in "hours worked" and is compensable.
The court also held that the employees could alternatively plead a claim for unjust enrichment.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a10011_08.pdf
Dismissal of employees wage claims reversed on appeal.
The Pennsylvnaia Minimum Wage Act requires that certain minimum wages be paid for all “hours worked.” 43 P.S. § 333.104(a). The focal point of the issue before us is whether the concept of “hours worked” includes, under the PMWA, the time that appellants spent donning, doffing, and sanitizing their protective gear for their work in a chicken processing plant.
"The answer, under the facts of this case, is found in the regulations promulgated in support of the Pennsylvnaia Minimum Wage Act, which defines “hours worked” to include "time during which an employee is required by the employer to be on the premises of the employer, to be on duty or to be at the prescribed work place, time spent in traveling as part of the duties of the employee during normal working hours and time during which an employee is employed or permitted to work...." 34 Pa.Code § 231.1" Under that definition, the time spent donning, doffing, and sanitizing work gear is included in "hours worked" and is compensable.
The court also held that the employees could alternatively plead a claim for unjust enrichment.
Wednesday, January 14, 2009
criminal conviction - expungement - factual basis and nature of plea agreement
Commonwealth v. Hanna - Superior Court - January 14, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a18026_08.pdf
Case remanded for hearing to resolve factual disputes about the factual basis and nature of the defendant's plea agreement, under which he pleaded guilty to one charge and many others were dismissed.
In the course of the opinion, the court reviewed many of the most important expungement cases, including Wexler and A.M.R., infra, as well as Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001)
General principles
“The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth. We review the decision of the trial court for an abuse of discretion.” Commonwealth v. Rodland, 871 A.2d 216, 218 (Pa. Super. 2005) (citation omitted).
This Court explained the nature of the right to expungement as follows: In this Commonwealth, there exists the right to petition for expungement of a criminal arrest record. This right is an adjunct of due process and is not dependent upon express statutory authority.
In Commonwealth v. Wexler, [431 A.2d 877, 879 (Pa. 1981)], the seminal case on expungement hearings in the Commonwealth, our Supreme Court defined the responsibilities of a court as it decides whether to expunge an arrest record: “In determining whether justice requires expungement, the court, in each particular case, must balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth's interest in preserving such records.”
The Wexler factors “include the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.” Wexler, 431 A.2d at 879.
The Commonwealth’s retention of an arrest record, in and of itself, may cause serious harm to an individual. See Commonwealth v. Malone, 366 A.2d 584, 588 (Pa. Super. 1976) (noting possible effects of maintaining an arrest record, including economic and non-economic losses and injury to reputation). Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005) (footnote omitted).
In this case, counsel argued that Appellant was 26 years old at the time of the offense, had no prior criminal record, and successfully served his probation. Appellant is a high-school graduate with college credits and technology-class credits. He is married and supports three children. According to counsel, the dismissed charges were having a serious adverse effect on Appellant’s employment prospects in the computer field.
If the defendant is convicted of a crime, he is not entitled to expungement except under the extremely limited circumstances permitted by statute. Commonwealth v. Maxwell, 737 A.2d 1243, 1244 (Pa. Super. 1999), citing 18 Pa.C.S.A. § 9122. At the opposite extreme, if the defendant is acquitted, he is generally entitled to automatic expungement of the charges for which he was acquitted. Commonwealth v. D.M., 695 A.2d 770 (Pa. 1997); cf. Rodland, 871 A.2d at 219 (where the defendant is acquitted of some charges and not others, the court should expunge the acquitted charges unless the Commonwealth “demonstrates to the trial court that expungement is impractical or impossible under the circumstances”).
"Unsurprisingly, the cases posing the most difficulty fall in between these extremes."
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a18026_08.pdf
Case remanded for hearing to resolve factual disputes about the factual basis and nature of the defendant's plea agreement, under which he pleaded guilty to one charge and many others were dismissed.
In the course of the opinion, the court reviewed many of the most important expungement cases, including Wexler and A.M.R., infra, as well as Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001)
General principles
“The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth. We review the decision of the trial court for an abuse of discretion.” Commonwealth v. Rodland, 871 A.2d 216, 218 (Pa. Super. 2005) (citation omitted).
This Court explained the nature of the right to expungement as follows: In this Commonwealth, there exists the right to petition for expungement of a criminal arrest record. This right is an adjunct of due process and is not dependent upon express statutory authority.
In Commonwealth v. Wexler, [431 A.2d 877, 879 (Pa. 1981)], the seminal case on expungement hearings in the Commonwealth, our Supreme Court defined the responsibilities of a court as it decides whether to expunge an arrest record: “In determining whether justice requires expungement, the court, in each particular case, must balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth's interest in preserving such records.”
The Wexler factors “include the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.” Wexler, 431 A.2d at 879.
The Commonwealth’s retention of an arrest record, in and of itself, may cause serious harm to an individual. See Commonwealth v. Malone, 366 A.2d 584, 588 (Pa. Super. 1976) (noting possible effects of maintaining an arrest record, including economic and non-economic losses and injury to reputation). Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005) (footnote omitted).
In this case, counsel argued that Appellant was 26 years old at the time of the offense, had no prior criminal record, and successfully served his probation. Appellant is a high-school graduate with college credits and technology-class credits. He is married and supports three children. According to counsel, the dismissed charges were having a serious adverse effect on Appellant’s employment prospects in the computer field.
If the defendant is convicted of a crime, he is not entitled to expungement except under the extremely limited circumstances permitted by statute. Commonwealth v. Maxwell, 737 A.2d 1243, 1244 (Pa. Super. 1999), citing 18 Pa.C.S.A. § 9122. At the opposite extreme, if the defendant is acquitted, he is generally entitled to automatic expungement of the charges for which he was acquitted. Commonwealth v. D.M., 695 A.2d 770 (Pa. 1997); cf. Rodland, 871 A.2d at 219 (where the defendant is acquitted of some charges and not others, the court should expunge the acquitted charges unless the Commonwealth “demonstrates to the trial court that expungement is impractical or impossible under the circumstances”).
"Unsurprisingly, the cases posing the most difficulty fall in between these extremes."
Tuesday, January 13, 2009
court - rules - children's fast-track appeals
Order Adopting Amendments to Pa.R.A.P. 102, 904, 905, 1112, 1113, 1116, 1123, 1925, 1931, 1972, 2113, 2154, 2172, 2185, 2542, 2545, and to Official Notes to Pa.R.A.P. 2572 and 3723, No. 197 Appellate Procedural Rules Docket No. 1
Opinion Type: Rules
197aplt.1.pdf
Opinion Type: Rules
197aplt.1attach.pdf
Children’s fast track appeal—Any appeal from an order involving dependency, termination of parental rights, adoptions, custody or paternity. See 42 Pa.C.S. §§ 6301 et seq.; 23 Pa.C.S. §§ 2511 et seq.; 23 Pa.C.S. §§ 2101 et seq.; 23 Pa.C.S. §§ 5301 et seq.; 23 Pa.C.S. §§ 5102 et seq.
Opinion Type: Rules
197aplt.1.pdf
Opinion Type: Rules
197aplt.1attach.pdf
Children’s fast track appeal—Any appeal from an order involving dependency, termination of parental rights, adoptions, custody or paternity. See 42 Pa.C.S. §§ 6301 et seq.; 23 Pa.C.S. §§ 2511 et seq.; 23 Pa.C.S. §§ 2101 et seq.; 23 Pa.C.S. §§ 5301 et seq.; 23 Pa.C.S. §§ 5102 et seq.
Monday, January 12, 2009
UC - vol. quit - unjust accusations - abusive employer conduct
Yellow Breeches Educ. Center v. UCBR - Cmwtlh. Court January 12, 2009 - unreported mem. decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1291CD08_1-12-09.pdf
Claimant had good cause to quit her job where the employer, in an abusive manner, unjustly accused her of insubordination.
A claimant need not indefinitely subject herself to unjust accusations and abusive conduct. First Federal Savings Bank v. UCBR, 957 A.2d 811 (Pa. Cmwlth. 2008). However, resentment of a reprimand, absent unjust accusations, profane language or abusive conduct, does not amount to a necessitous and compelling cause. Id. Here, the UCBR found that Claimant was subject to unjust accusations and abusive conduct prior to Claimant’s leaving her employment.
The court distinguished St. Barnabas, Inc. v. UCBR, 525 A.2d 885 (Pa. Cmwlth. 1987), where it had not found abusive conduct when a supervisor made an unjust accusation against an employee and, in doing so, yelled at the employee with his office door ajar. In St. Barnabas, the employer had a handbook that required employees to report problems to higher management. There was no such policy here. Moreover, unlike the employee in St. Barnabas, Claimant made a good faith effort to resolve the problems with her supervisor by speaking directly with her. Therefore, St. Barnabas does not apply.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1291CD08_1-12-09.pdf
Claimant had good cause to quit her job where the employer, in an abusive manner, unjustly accused her of insubordination.
A claimant need not indefinitely subject herself to unjust accusations and abusive conduct. First Federal Savings Bank v. UCBR, 957 A.2d 811 (Pa. Cmwlth. 2008). However, resentment of a reprimand, absent unjust accusations, profane language or abusive conduct, does not amount to a necessitous and compelling cause. Id. Here, the UCBR found that Claimant was subject to unjust accusations and abusive conduct prior to Claimant’s leaving her employment.
The court distinguished St. Barnabas, Inc. v. UCBR, 525 A.2d 885 (Pa. Cmwlth. 1987), where it had not found abusive conduct when a supervisor made an unjust accusation against an employee and, in doing so, yelled at the employee with his office door ajar. In St. Barnabas, the employer had a handbook that required employees to report problems to higher management. There was no such policy here. Moreover, unlike the employee in St. Barnabas, Claimant made a good faith effort to resolve the problems with her supervisor by speaking directly with her. Therefore, St. Barnabas does not apply.
UC - vol. quit - marital, family, or domestic reasons - fiancée
Wagner v. UCBR - Cmwlth. Court - January 12, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1023CD08_1-12-09.pdf
The court held that a claimant had good cause to quit his job under the following "marital, family or domestic reasons."
He took 28 days leave from his job in Iraq to lend support to his fiancée, who was dealing with a contentious custody battle with an abusive ex-boyfriend, and a child who suffered from a congenital heart defect and microcephaly. Claimant left to return to Iraq but found that he was unable to handle the issues in his home life from that significant distance. He spoke to his manager to try to get a job in the US but was told none were available and that, in any event, he was not eligible for such a job even it it existed. He then resigned and returned home.
Family obligations can be sufficiently necessitous and compelling to entitle a claimant to unemployment compensation benefits. Wallace v. UCBR, 393 A.2d 43 (Pa. Cmwlth. 1978) (declared unconstitutional the section of the UC Law that disqualified from benefits claimants who voluntarily terminate their employment for marital, filial or domestic reasons).
The Supreme Court in Taylor v. UCBR, 474 Pa. 351, 359, 378 A.2d 829, 833 (1977) held that if a worker leaves his employment when he is compelled to do so by necessitous circumstances or because of legal or family obligations, his leaving is voluntary with good cause, and under the act he is entitled to benefits. The pressure of necessity, of legal duty, or family obligations, or other overpowering circumstances and his capitulation to them transform what is ostensibly voluntary unemployment into involuntary unemployment. Accord, Bliley Elec. Co. v. UCBR, 45 A.2d 898 (Pa. Super. 1946)); Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000) (claimant when he quit his job to return to live with his son, who was suffering from emotional and behavioral problems in his absence); Speck v. UCBR, 680 A.2d 27 (Pa. Cmwlth. 1996) (claimant quit his job when a transfer created a daily commute consisting of 337 miles each way and he was newly married, and the only child of a parent who needed his assistance from time to time due to a heart condition.)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1023CD08_1-12-09.pdf
The court held that a claimant had good cause to quit his job under the following "marital, family or domestic reasons."
He took 28 days leave from his job in Iraq to lend support to his fiancée, who was dealing with a contentious custody battle with an abusive ex-boyfriend, and a child who suffered from a congenital heart defect and microcephaly. Claimant left to return to Iraq but found that he was unable to handle the issues in his home life from that significant distance. He spoke to his manager to try to get a job in the US but was told none were available and that, in any event, he was not eligible for such a job even it it existed. He then resigned and returned home.
Family obligations can be sufficiently necessitous and compelling to entitle a claimant to unemployment compensation benefits. Wallace v. UCBR, 393 A.2d 43 (Pa. Cmwlth. 1978) (declared unconstitutional the section of the UC Law that disqualified from benefits claimants who voluntarily terminate their employment for marital, filial or domestic reasons).
The Supreme Court in Taylor v. UCBR, 474 Pa. 351, 359, 378 A.2d 829, 833 (1977) held that if a worker leaves his employment when he is compelled to do so by necessitous circumstances or because of legal or family obligations, his leaving is voluntary with good cause, and under the act he is entitled to benefits. The pressure of necessity, of legal duty, or family obligations, or other overpowering circumstances and his capitulation to them transform what is ostensibly voluntary unemployment into involuntary unemployment. Accord, Bliley Elec. Co. v. UCBR, 45 A.2d 898 (Pa. Super. 1946)); Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000) (claimant when he quit his job to return to live with his son, who was suffering from emotional and behavioral problems in his absence); Speck v. UCBR, 680 A.2d 27 (Pa. Cmwlth. 1996) (claimant quit his job when a transfer created a daily commute consisting of 337 miles each way and he was newly married, and the only child of a parent who needed his assistance from time to time due to a heart condition.)
Friday, January 09, 2009
admin. law - due process - discovery
Vaders v. State Horse Racing Commn. - Cmwlth. Cour - January 9, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/703CD08_1-9-09.pdf
due process - In an administrative hearing, due process requires, at a minimum, notice and the opportunity to be heard. See Section 504 of the Administrative Agency Law, 2 Pa.C.S. § 504; Grossman v. State Bd. of Psychology, 825 A.2d 748 (Pa. Cmwlth. 2003); and Gruff v. Dep’t of State, 913 A.2d 1008 (Pa. Cmwlth. 2006).
discovery - Discovery, as provided for in the Pennsylvania Rules of Civil Procedure for court proceedings, is not made available in administrative proceedings.
Rule 35.142(a) of the General Rules of Admin. Practice and Procedure 1 Pa. Code § 35.142(a) http://www.pacode.com/secure/data/001/chapter35/s35.142.html allows parties to request subpoenas for the attendance of witnesses or production of documents upon written application to the agency’s head or oral application at a hearing. Weinberg v. Ins. Dep’t, 398 A.2d 1120 (Pa. Cmwlth. 1979).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/703CD08_1-9-09.pdf
due process - In an administrative hearing, due process requires, at a minimum, notice and the opportunity to be heard. See Section 504 of the Administrative Agency Law, 2 Pa.C.S. § 504; Grossman v. State Bd. of Psychology, 825 A.2d 748 (Pa. Cmwlth. 2003); and Gruff v. Dep’t of State, 913 A.2d 1008 (Pa. Cmwlth. 2006).
discovery - Discovery, as provided for in the Pennsylvania Rules of Civil Procedure for court proceedings, is not made available in administrative proceedings.
Rule 35.142(a) of the General Rules of Admin. Practice and Procedure 1 Pa. Code § 35.142(a) http://www.pacode.com/secure/data/001/chapter35/s35.142.html allows parties to request subpoenas for the attendance of witnesses or production of documents upon written application to the agency’s head or oral application at a hearing. Weinberg v. Ins. Dep’t, 398 A.2d 1120 (Pa. Cmwlth. 1979).
UC - willful misconduct - failure to follow employer directive to attent meeting
Bonawitz v. UCBR - Cmwlth Court - Janaury 9, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1027CD08_1-9-09.pdf
“Where an employee is discharged for refusing or failing to follow an employer’s directive, both the reasonableness of the demand and the reasonableness of the employee’s refusal must be examined.” Dougherty v. UCBR, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).
Where an employee’s action is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. UCBR, 450 A.2d 305 (Pa. Cmwlth. 1982). “In other words, if there was ‘good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.” Id. at 308 (citation omitted).
Under some circumstances, a claimant’s mistaken belief can constitute good cause justifying otherwise willful misconduct. Caterpillar, Inc. v. UCBR, 654 A.2d 199 (Pa. Cmwlth. 1995). However, incorrect subjective beliefs as to legal rights do not establish good cause for willful misconduct. Simpson.
Here, the Board did not find that Claimant had a mistaken belief as to the subject of the meeting. Instead, the Board determined Claimant failed to carry his burden to establish good cause for two reasons: [T]he employer credibly established that the claimant had proper representation present since a union steward was already in his office and another one was on the way.
Furthermore, the employer stated that no union representation was necessary, since the employer was not required to have union representation at a counseling session. Clearly, the Board made all credibility findings in favor of the Employer and none in favor of the Claimant. Also, the Board reasoned that any need for union representation was satisfied, regardless of the subject of the meeting.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1027CD08_1-9-09.pdf
“Where an employee is discharged for refusing or failing to follow an employer’s directive, both the reasonableness of the demand and the reasonableness of the employee’s refusal must be examined.” Dougherty v. UCBR, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).
Where an employee’s action is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. UCBR, 450 A.2d 305 (Pa. Cmwlth. 1982). “In other words, if there was ‘good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.” Id. at 308 (citation omitted).
Under some circumstances, a claimant’s mistaken belief can constitute good cause justifying otherwise willful misconduct. Caterpillar, Inc. v. UCBR, 654 A.2d 199 (Pa. Cmwlth. 1995). However, incorrect subjective beliefs as to legal rights do not establish good cause for willful misconduct. Simpson.
Here, the Board did not find that Claimant had a mistaken belief as to the subject of the meeting. Instead, the Board determined Claimant failed to carry his burden to establish good cause for two reasons: [T]he employer credibly established that the claimant had proper representation present since a union steward was already in his office and another one was on the way.
Furthermore, the employer stated that no union representation was necessary, since the employer was not required to have union representation at a counseling session. Clearly, the Board made all credibility findings in favor of the Employer and none in favor of the Claimant. Also, the Board reasoned that any need for union representation was satisfied, regardless of the subject of the meeting.
Subscribe to:
Posts (Atom)