employment - wrongful discharge - sex discrimination - covered employers

Weaver v. Harpster and Shipman - Pa. Supreme Court - July 20, 2009 (5-2 decision)

http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-53-2008mo.pdf

Under the Pennsylvania Human Relations Act (PHRA), 43 P.S. §§ 951-963, employers with four or more employees are prohibited from discriminating against their employees on the basis of sex. See 43 P.S. §§ 954 (defining employer), 955 (listing “unlawful discriminatory practices”).
At common law, an employer may terminate an at-will employee for any reason unless that reason violates a clear mandate of public policy emanating from either the Pennsylvania Constitution or statutory pronouncements.

In this case, we address the intersection of the PHRA and the public policy exception to at-will employment, namely, whether an employer with fewer than four employees, although not subject to the PHRA’s prohibition against sexual discrimination, nevertheless is prohibited from discriminating against an employee on the basis of sex.

Because the PHRA reflects the unambiguous policy determination by the legislature that employers with fewer than four employees will not be liable for sex discrimination in Pennsylvania, we are constrained to conclude that a common law claim for wrongful discharge, resulting from sex discrimination, will not lie against those employers. We therefore reverse the Superior Court.


Dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-53-2008do.pdf
I believe the Pennsylvania Constitution, supported by statutory law, makes it unmistakably clear that the public policy of our Commonwealth simply does not tolerate invidious gender discrimination here in the form of sexual harassment with respect to continued employment.

For the reasons stated more fully below, while I would reaffirm the vitality of the at-will doctrine in our Commonwealth, I believe that we should join other states that have considered similar issues and recognize a cause of action for wrongful discharge, for those individuals who fall outside of the coverage of the Pennsylvania Human Relations Act (“Human Relations Act”), to redress a termination that contravenes our Commonwealth’s fundamental public policy against gender discrimination. Thus, I would affirm the order of the Superior Court.

Furthermore, a finding of a cause of action for those individuals who fall outside of the coverage of the Human Relations Act is entirely consonant with the conclusions reached by courts which have recognized a claim for wrongful discharge based upon a violation of public policy expressed in a state constitution, even when the state legislature has enacted an anti-discrimination statute which limits the size of the employer covered by the statute. See, e.g., Molesworth v. Brandon, 341 Md. 621, 672 A.2d 608 (1996) (upholding Maryland’s common law cause of action for wrongful discharge of an employee based on sex discrimination against an employer with less than 15 employees where public policy against sex discrimination was evidenced by constitutional amendment, statutes, and executive order); accord Thurdin v. SEI Boston, LLC, 452 Mass. 436, 895 N.E.2d 446 (2008) (concluding employee may bring claim for sex discrimination under state equal rights act where employer was not covered by Massachusetts’ state employment discrimination law); Collins v. Rizkana, 73 Ohio St. 3d 65, 652 N.E.2d 653 (1995) (recognizing common law tort claim for wrongful discharge in violation of Ohio public policy based upon statutory and judicial sources); Williamson v. Greene, 200 W.Va. 421, 490 S.E.2d 23 (1997) (determining common law claim for retaliatory discharge based on sex discrimination in light of West Virginia’s public policy found in state human relations act); Roberts v. Dudley, 140 Wn.2d 58, 993 P.2d 901 (2000) (finding claim for wrongful discharge in violation of Washington’s public policy against gender discrimination based upon statutes and judicial decisions); but see Jarman v. Deason, 173 N.C. App. 297, 618 S.E.2d 776 (2005) (concluding no claim of wrongful discharge for age discrimination in North Carolina relying on legislative prerogative but in absence of constitutional basis for public policy); Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, Inc., 994 P.2d 1261 (Utah 2000) (same).

Ten Practical Tips for Making Your Case Appealable

The ABA Section of Litigation has published "Ten Practical Tips for Making Your Case Appealable" as part of their Tips from the Trenches series.

The tips, authored by Alex Wilson Albright and Susan Vance, offer ten practice tips to help ensure that your case is appealable—and “appealing”—to a reviewing court.

Ten Practical Tips for Making Your Case Appealable

divorce - equitable distribution - rental credit - exclusion from home in PFA

Lee v. Lee - Pa. Superior Court - July 15, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A24031_08.pdf

In divorce-related equitable distribution, when a spouse has been excluded from the marital home by a protection from abuse order, the other spouse may raise an equitable defense against the first spouse’s claim to rental credit for the time period in which the order was in effect.

There is no legal authority on point on the question of whether a PFA, or a spouse’s abusive behavior prompting a PFA, can be the basis of a meritorious equitable defense to an award of rental credit. However, the Divorce Code provides that its purpose is to “[e]ffectuate economic justice between parties who are divorced or separated . . . and insure a fair and just determination and settlement of their property rights.” 23 Pa.C.S.A. § 3102(a)(6). Section 3323(f) provides: In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this part and may grant such other relief or remedy as equity and justice require against either party . . . . 23 Pa.C.S.A. § 3323(f). “He who comes into a court of equity must come with clean hands.”

In this instance, it is clear that Husband’s behavior prompted the PFA, which in turn excluded him from the home. No matter the reason for Husband’s not living in the marital residence at a certain point in time, there is no dispute that as of the date of entry of the PFA order, he was precluded from even visiting the home. We therefore conclude that equity prohibits Husband from receiving a monetary credit from Wife for the time that he was excluded by the PFA, as the order was entered on the basis of his misbehavior toward her. Thus, we agree with Wife that Husband was not entitled to any rental credit after the PFA was issued against him.

custody - Hague Convention - surrender of passports, etc.

Axford v. Axford - ED Pa. - July 10, 2009

http://www.paed.uscourts.gov/documents/opinions/09D0808P.pdf

Expedited ex parte Motion for Expedited Service and Surrender of Passports and Travel Documents granted.

International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq., which implemented the Hague Convention, entitles a person whose child has been wrongfully removed to the United States, usually by a parent, to petition a federal court to order the child returned. See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 270 (3d Cir. 2007) (“A person claiming that a child has been wrongfully removed to or retained in the United States can commence judicial proceedings under the Hague Convention by filing a petition for the return of the child in a state or federal court which has jurisdiction where the child is located.” (citing 42 U.S.C. § 11603(b)). The Hague Convention reflects a universal concern about the harm done to children by parental kidnaping and a strong desire among the Contracting States to implement an effective deterrent to such behavior. Hague Convention, Preamble, 42 U.S.C. § 11601(a)(1)-(4)

The Hague Convention has two main purposes: “to ensure the prompt return of children to the state of their habitual residence when they have been wrongfully removed,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006) (citations omitted). The Hague Convention’s procedures are designed “to restore the status quo prior to any wrongful removal or retention and to deter parents from engaging in international forum shopping in custody cases.” Baxter v. Baxter, 423 F.3d 363, 367 (3d Cir. 2005) (citing Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995)). The Hague Convention is not designed to settle international custody disputes, but rather to ensure that cases are heard in the proper court. See Hague Convention, art. 19 (“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”).

Surrender of passports, etc. - A court exercising jurisdiction under the Hague Convention “may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child’s further removal or concealment before the final disposition of [a] petition.” 42 U.S.C. § 11604(a). In accordance with this authority, federal courts have ordered respondents to surrender their passports to the Clerk of Court and to remain in the court’s jurisdiction pending resolution of a petition.

UC - eligibility - employer/claimant agreement

Goldsmith v. UCBR - Cmwlth. Court - July 9, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1385CD08_7-9-09.pdf

This is an unreported decision, but there's still a lot of important, useful stuff in it. The discussion about referees duties highlights why advocates should not bring claimants into willful misconduct hearings under some circumstances, e.g., the employer doesn't show up or doesn't bring witnesses with first-hand information.

______________________________________________

During the course of administrative proceedings in a UC case, claimant and employer entered into an agreement and sumitted it to the UCBR as a "stipulation." The terms included the employer dropping opposition to the UC claim. The Board ignored the stipulation and issued a decision.

Employer-claimant agreements about eligibility are not valid - The Court held that the Board's failure to address the stipulation was proper, since "[i]n the context of unemployment compensation benefits, '[a]n employer and employee . . . cannot determine the employee’s entitlement to benefits by subsequent agreement” after a finding that Claimant, under the facts of the case, is not legally entitled to benefits. Sill-Hopkins, 563 A.2d at 1289; Cozzone v. UCBR, 103 A.2d 284, 285 (Pa. Super. 1954); Turner v. UCBR, 381 A.2d 223, 224 (Pa. Cmwlth. 1978). Similarly, the courts have refused to give determinative weight to an agreement between an employer and a claimant that resolved their dispute that had led to the claimant’s discharge, and affirmed the denial of benefits even when, by agreement, employer reinstated claimant in his position. Nesmith v. UCBR, 402 A.2d 1132, 1133 (Pa. Cmwlth. 1979).

A key reason behind this principle is that “[t]he Board is charged with the duty of safeguarding the [unemployment compensation] fund.” Phillips v. UCBR, 30 A.2d 718, 723 (Pa. Super. 1943); see also Amspacher v. UCBR, 479 A.2d 688, 691 (Pa. Cmwlth. 1984) (the Commonwealth has a “duty to protect the unemployment compensation fund against dissipation by those not entitled to benefits.”)....[P]rivate agreements between claimants and employers that rely on the fund threaten the viability of the unemployment compensation system." Department of Labor and Industry v. UCBR, 418 Pa. 471, 211 A.2d 463, 469-470 (1965).

In this case, employer and claimant essentially seek to use the UC fund as the source of a settlement of Claimant’s separate civil rights claims against the Employer. Such purpose is not congruent with the purposes behind the UC Law.

Duty to referee to develop record - This safeguarding responsibility requires the referee and Board to examine the facts of each case to determine if the circumstances surrounding a claimant’s unemployment qualify that claimant, under the law, for compensation from the fund. See PTC v. UCBR (In re Gagliardi), 141 A.2d 410, 415 (Pa. Super. 1958) (“It is the duty of the referee, as representative or agent for the board ‛to fairly develop the facts.’”) This duty extends beyond merely passively “hearing the witnesses who voluntarily appear,” and gives “the referee or the Board [the responsibility] to call witnesses” should “additional testimony [be] required” to adequately assess the factual circumstances surrounding a claimant’s unemployment. Phillips, 30 A.2d at 723.

The responsibility is necessary, in part, because an employer’s interests may not coincide with the Board’s interest of protecting the fund. Given this possible divergence of interests, the Board and referee must necessarily investigate the circumstances, independent of any representations made by the Employer. See generally, DiGiovanni v. UCBR, 404 A.2d 449, 450 (Pa. Cmwlth. 1979) (noting the responsibility of the Board to protect the unemployment compensation fund, as well as the investigative power of the Board toward that end, and citing to numerous cases of this Court where an employer’s nonparticipation had no bearing on the ultimate decision).

UC - willful misconduct - inability to do work

Durham v. UCBR - Cmwlth Court - July 2, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/30CD09_7-2-09.pdf

The court reversed the decision of the Board, affirming the referee decision that Claimant was not eligible for benefits under Section 402(e) of the UC Law, 43 P.S. §802(e), for alleged willful misconduct, because "the facts showed only Claimant’s inability to complete assignments, as opposed to refusal to do so..."

Claimant was unable to catch up on progress notes because of a 5-day absence for health reasons. Even though the Board found Employer’s witnesses credible, the substance of that credited testimony does not support a finding that Claimant intentionally disregarded his job duties. This is simply a case of an employee working to the best of his ability but still falling short of his employer’s expectations. This does not amount to willful misconduct.

On the employer testimony, the Board found that Claimant’s conduct was intentional. However, the testimony established only that Claimant was not performing at a rate which she considered satisfactory, and that in her opinion Claimant’s productivity had declined. Employer’s reaction to Claimant’s supposed misconduct indicates that it, too, believed Claimant was simply incompetent. Indeed, Employer took measures to assist him in completing his backlog of work. This suggests that Employer believed Claimant needed extra time and help in order to complete his workload, not that he refused to complete it or refused to exercise the requisite diligence. The employer witness did not testify that Claimant disregarded Employer’s interests or his duties; her testimony showed only that Claimant did not complete the duties assigned to him. In short, Claimant’s failure to complete his work was the result of “mere incompetence, inexperience, or inability.”

It is important to focus on the definition of “willful.” Actual intent to wrong the employer is not necessary. Willful misconduct can be proven by a finding of “conscious indifference to the duty owed the employer.” Homony v. UCBR, 312 A.2d 77, 78 (Pa. Cmwlth. 1973). However, “mere incompetence, inexperience, or inability which may indeed be sufficient to justify discharge, will not constitute willful misconduct.” Ungard v. UCBR, 442 A.2d 16, 19 (Pa. Cmwlth. 1982). Where an employee works to the best of his ability, it does not amount to willful misconduct. Radio Station WVCH v. UCBR, 430 A.2d 737, 740 (Pa. Cmwlth. 1981); Geslao v. UCBR, 519 A.2d 1096, 1098 (Pa. Cmwlth. 1987); Herndon v. UCBR, 540 A.2d 633, 634 (Pa. Cmwlth. 1988). The record in this case does not support the Board’s conclusion that Claimant’s failure to complete his work constituted willful misconduct.

certificate of merit - actions against licensed professionals

Zatuchni v. Richman, et al - ED Pa. - June 30, 2009

http://www.paed.uscourts.gov/documents/opinions/09D0762P.pdf

Under Pennsylvania law, a Certificate of Merit (COM) is required when a professional liability claim is asserted against a licensed professional, and when it is asserted against “a partnership, unincorporated association, corporation or similar entity where the entity is responsible for a licensed professional who deviated from an acceptable professional standard.”26 PA. R. CIV. P. 1042.1(a).

This rule is one of substantive law to be applied by federal courts sitting in diversity.
A COM must be filed for all actions, whether in state or federal court, that are “based upon an allegation that a licensed professional deviated from an acceptable professional standard.”

federal courts - private right of action - Nursing Home Reform Amendments - 42 USC 1396r et seq.

Grammer v. John J. Kane Regional Centers - 3d Cir. - June 30, 2009

http://www.ca3.uscourts.gov/opinarch/072358p.pdf

We are asked in this appeal to determine whether an action will lie under 42 U.S.C. § 1983 to challenge the treatment Appellant’s decedent received (or did not receive) at the Appellee nursing home – treatment Appellant argues violated the Federal Nursing Home Reform Amendments (FNRA), 42 U.S.C. § 1396r et seq. We answer that question in the affirmative and will reverse and remand the cause to the District Court.

In so holding, we conclude that the language of the FNHRA is sufficiently rights-creating and that the rights conferred by its various provisions are neither “vague and amorphous” nor impose upon states a mere precatory obligation. See Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002) (citing Alexander v. Sandoval, 532 U.S. 275-288-89 (2001)). Further, we conclude that § 1983 provides the proper avenue for relief because the Appellee has failed to demonstrate that Congress foreclosed that option by adopting another, more comprehensive enforcement scheme. See Gonzaga Univ., 536 U.S. at 284.

UC- able and available - health issues

Poolpak Technologies v. UCBR - Cmwlth Court - June 30, 2009 - unreported decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/70CD09_6-30-09.pdf

The court affimed the UCBR decision that the claimant was able to work and available for work, despite his prior health leave of absence from the employer, which was caused by work-related stress caused by his relationship with his supervisor.

The Board made findings that, after Claimant’s FMLA leave expired, Employer replaced Claimant because Employer was not willing to accommodate Claimant’s need for a different work situation. Claimant was able to work and was available for work, except work with his previous supervisor.

Section 401(d) of the UC Law states that unemployment benefits are payable to any employee who is unemployed and who is able to work and is available for suitable work. It is presumed that an employee who registers for unemployment benefits is able to work and is available for suitable work. Penn Hills School District v. UCBR, 496 Pa. 620, 437 A.2d 1213 (1981). However, an employer may rebut this presumption by presenting countervailing evidence. Id.
If the UCBR’s finding of availability is supported by substantial evidence, it is binding on an appellate court. Penn Hills. To see if substantial evidence exists in the record to support a finding of availability, an appellate court must examine the evidence in the light most favorable to the party in whose favor the fact-finder has ruled, giving that party the benefit of all logical and reasonable inferences. Id.

Here, Claimant applied for unemployment benefits, thereby creating the presumption that he was able to work and was available for suitable work. Employer rebutted the presumption with a psychologist’s report stating that Claimant was being seen by a psychologist and by a psychiatrist for major depression and was considered unable to work at that time.

Claimant, however, presented the decision of Employer’s own short-term disability insurer, which had rejected Claimant’s appeal from the insurer’s denial of benefits. Claimant testified that he submitted the psychologist’s report to Employer’s insurer in support of his appeal, but the insurer still denied Claimant benefits because, although Claimant was not able to work with a particular supervisor, Claimant was able to work for a different employer or in a different work situation. Such testimony constitutes substantial evidence to support the UCBR’s finding that Claimant was able to work and was available for suitable work.

disability - attorney fees - "substantially justified"

Cruz v. Astrue - ED Pa. - June 22, 2009

http://www.paed.uscourts.gov/documents/opinions/09D0725P.pdf

Despite the plaintiff having prevailed, the court held that the position of SSA was substantially justified, because

- treating physician - there were inconsistencies in the Medical Source Statement, records, and objective tests

- credibility - "Given the conflict between subjective complaints and the other evidence, the ALJ’s finding that plaintiff was not totally credible was reasonable, and the Commissioner’s defense of the same was substantially justified."

- witness testimony - testimony of plaintiff's daughter was "not particularly probative," not in conflict with ALJ findings, and "not unbiased"

- RFC assessment - state agency opinions, on which the ALJ relied, were "most consistent with the medical evidence"

social security - disability - severity - consideration of evidence - need for finding

Rupard v. Astrue - ED Pa. - June 16, 2009

http://www.paed.uscourts.gov/documents/opinions/09D0709P.pdf

Over defendant's objection, the court upheld the magistrates recommenddation “that the case be remanded for further consideration of Plaintiff’s hand impairment” because Plaintiff presented sufficient evidence to satisfy the de minimis requirement of step two...."

The ALJ's “scattered references” to Plaintiff’s hand impairment “do not rise to the level of a proper step-two determination” The ALJ’s failure to make a finding concerning the severity of Plaintiff’s hand impairment requires that the case be remanded for further proceedings. There is no question that the ALJ did not expressly consider Plaintiff’s alleged hand impairment at step two. The ALJ made no finding one way or the other concerning Plaintiff’s hand impairment. This silence cannot be interpreted as a determination that Plaintiff’s hand impairment is not “severe,” especially considering the fact that the ALJ expressly determined that Plaintiff’s depression and drug and alcohol abuse are non-severe impairments.

It was incumbent upon the ALJ to expressly consider the hand impairment at step two. We remand this case because the ALJ failed to make any determination about Plaintiff’s hand impairment at step two. Based upon the ALJ’s failure to expressly consider evidence of Plaintiff’s hand impairment, we cannot conclude that the ALJ’s final determination is supported by substantial evidence.

consumer - debt collection - information from third parties

Smith v. NCO Financial Systems - ED Pa. - June 12, 2009 - class action

http://www.paed.uscourts.gov/documents/opinions/09D0695P.pdf

Debt collector sent a collection notice with the following privacy statement.

InformationWe Collect
We collect non-public personal information about you fromthe following sources:
• From you on applications or other forms, over the telephone, in face-toface meetings and via the Internet. Examples of information we receive from you include your name and address, telephone number, social security number, employment information, credit history and other financial information. . . .
• From employers and others to verify information you have given to us.

Plaintiff alleges that this statement “misleads the consumer into believing that third parties such as her boss, co-workers or others may be contacted and asked to provide information concerning the consumer, when the FDCPA forbids such third party contact.”

In light of these allegations, Plaintiff has stated claims under Sections 1692e and 1692e(5) upon which relief can be granted.

As explained supra, debt collectors contacting third parties to obtain anything other than location information about the consumer is prohibited by the FDCPA. Upon reading the Privacy Notice, the least sophisticated debtor could believe that Defendants could and would legally contact employers and other persons to verify non-public personal information such as one’s social security number, credit history and other financial information. The least sophisticated debtor could also believe that Defendants are allowed to verify a much broader range of employment information than is actually permitted under the FDCPA.

As this reading of the Privacy Notice is neither “bizarre or idiosyncratic,” Plaintiff has adequately alleged a violation of Sections 1692e and 1692e(5) of the FDCPA, and the Court will not grant Defendant’s Motion for judgment on the same

UC- willful misconduct - violation of employer rule - good cause

Roberts v. UCBR - Cmwlth. Court - June 8, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1989CD08_6-8-09.pdf

Claimant, a client care worker in a residential facility for persons with special needs, had good cause for his violation of an employer rule.

Claimant was directly responsible for the care of a “one-to-one” client who was subject to “close reach supervision … at all times due to behavioral concerns.” Employer’s rule required close supervision of one-to-one clients. However, these clients were alone and unattended between the hours of 11:00 p.m. and 7:00 a.m. except for checks every thirty minutes.

Good cause is established “where the action of the employee is justified or reasonable under the circumstances.” Frumento v. UCBR, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976). Precedent teaches that taking actions to advance a patient’s health and safety will constitute good cause to violate an employer’s work rule.

In this case, the need to retrieve Client’s breakfast provided Claimant good cause for his violation of Employer’s rule. Claimant had the responsibility to make sure Client was properly fed, and he testified that because pantry staff was often not available, client care workers routinely retrieve food from the kitchen for their clients and later put it away. Claimant argues that a “[f]ailure on my part to get and reserve my client food from the kitchen could keep him hungry until lunch.” Claimant acted in the best interests of both Client and Employer by going to the kitchen to secure Client’s breakfast leaving Client, who was secured in his bed with his bedrail in place, for a brief time -- five (5) minutes.

Even though the UCBR found all of the employer testimony credible, there was uncontradicted testimony from Claimant that Employer permitted and even required “one-to-one” clients to be left alone briefly, notwithstanding its close supervision rule. There was a question, therefore, about whether Claimant even violated Employer’s rule.

Assuming Employer’s rule was inflexible, however, Claimant showed good cause to violate it. Claimant was attending to a basic need of Client, having secured Client in his bed, while he left Client for approximately five minutes. The evidence established good cause for Claimant’s violation of the work rule and, thus, the Board erred in finding that Claimant’s actions constituted willful misconduct.

housing - reasonable accommodation - duty of HA in inquire - continuing duty of court to accept evidence

Lebanon County Housing Authority v. Landeck - Superior Court - February 27, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a27022_08.pdf

A court must consider evidence of a tenant's handicap up until time of trial. The common pleas court impropetly refused to accept evidence of the tenant's disability that was offered after the MDJ hearing. Tenant offered some evidence there and tried to offer more after the MDJ judgment. The tenant made clear consistent requests for accommodation, relating to mental problems which caused housekeeping concerns.

“It shall be unlawful to . . .discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or renter.” 42 U.S.C. § 3604(f)(1)(A).

“To establish a reasonable accommodation defense under the Fair Housing Act, the tenant must demonstrate that (1) she suffered from a ‘handicap’[4] (or ‘disability’), (2) the landlord knew or should have known of the disability, (3) an accommodation of the disability may be necessary to afford the tenant an equal opportunity to use and enjoy her apartment, (4) the tenant requested a reasonable accommodation, and (5) the landlord refused to grant a reasonable accommodation.” Douglas v. Kriegsfeld Corporation, 884 A.2d 1109, 1129 (D.C. 2005)

If, as the Authority asserts, it was unclear about what accommodation was being requested, the HA had a duty to “promptly respond” to the Tenant’s request. Douglas, 884 A.2d at 1122. The Douglas court explains: If the request is not sufficiently detailed to reveal the nature of that request, the Act-as properly interpreted-requires the landlord to ‘open a dialogue’ with the tenant, eliciting more information as needed, to determine what specifics the tenant has in mind and whether such accommodation would, in fact, be reasonable under the circumstances.

Tenant has established that she suffered from depression which is a “handicap” under the Fair Housing Act; that the Authority should have known of the handicap; that she requested a reasonable accommodation; and that the Authority refused to make the accommodation. To prevail under the Act, however, Tenant was also required to prove she was unable to maintain her unit as required by the terms of the lease because of her disability. The trial court erroneously prevented Tenant from presenting evidence in support of this final prong of her defense when it refused to consider evidence beyond a certian date or permit witnesses to testify.

The court remanded the case to the trial court for a new non-jury trial to permit tenant to present evidence in support of her assertion she was unable to satisfy the terms of the lease because of her handicap. If she proves her handicap caused the breach of the lease the Authority must produce rebuttal evidence that the requested accommodation was unreasonable before an eviction may be ordered.

CPA - license - revocation

Ake v. State Board of Accountancy - Cmwlth. Court (2-1) - May 20, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1103CD08_5-20-09.pdf

The court reversed the imposition of the maximum penality--revocation of a CPA's license--based on a 2002 Illinois felony conviction for a hate crime, consisting of a series of harassing phone calls to a YWCA director concerning the fact that she was a lesbian, something that was contrary to the appellant's religious, moral and ethical beliefs. The court held that the board had abused its discretion in imposing the maximum penalty, which had the effect of depriving appellant of any opportunity for reinstatement of his CPA license.

The court relied on the fact that

- the conviction was relatively remote in time;
- appellant had completed all of the conditions of his sentence and probation (14 days in jail, $2000 fine, 30 months probation, psychological counseling)
- the offense would have only been a misdemeanor in Pennsylvania
- the conduct was not of the type that is an "anathema to the accounting profession"
- there was no rehabilition requirement under the CPA law, but if there were, appellant was rehabilitated, having fulfilled each term of his Illinois sentence
- revocation is reserved for the "worst offenders"

The dissent thought that the board had acted within its discretion and had not abused it. It found that appellant's offense related to his moral character, which is a factor under the CPA law, and that it involved his honesty and integrity.

EAJA - attorney fees - substantially justified - totality of circumstances

Segers v. Astrue - ED Pa. - May 8, 2009

http://www.paed.uscourts.gov/documents/opinions/09D0537P.pdf

Noting that neither the Supreme Court nor the Third Circuit Court of Appeals has outlined the correct focus or level of generality for deciding whether the Commissioner’s position was “substantially justified,” and other courts have set forth differing approaches, the court adopted the this Court will adopt a "reasoned approach" in the “totality of the circumstances” method of analysis that examines the entirety of the government’s position in litigation when determining substantial justification, . See Roanoke River Basin Assoc. v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993); Jackson v. Chater, 94 F.3d 274, 278 (7th Cir. 1996); Williams, 595 F. Supp. 2d at 586; Corona, 431 F. Supp. 2d at 514. See also Williams v. Astrue, 595 F. Supp. 2d 582, 585-86 (E.D. Pa. 2009) (comparing the approaches of different courts); Corona, 431 F. Supp. 2d at 512-13 (E.D. Pa. 2006) (same).

In this case, "applying a 'totality of the circumstances' approach, it is clear that the Commissioner had (1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory it propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced. See Morgan 142 F.3d at 684. Accordingly, the Court is satisfied that the ALJ acted reasonably and the Commissioner’s position was substantially justified, and the Court denies Ms. Segers’s motion for attorney’s fees."

UC - appeal - filing by email - timeliness

Roman-Hutchinson v. UCBR - May 11, 2009 - Cmwlth. Court

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2112CD08_5-11-09.pdf

Appeal sent by e-mail which was not received until after the appeal deadline was not timely.

The risk of non-delivery of an e-mail appeal is on the appellant, 34 Pa. Code §101.82(b)(4)

The "common law 'mailbox rule', which provides that the depositing in the post office of a properly addressed letter with prepaid postage raises a natural presumption that the letter reached its destination by due course of mail, does not apply to appeals sent by e-mail. Under the “mailbox rule,” evidence that a letter has been mailed ordinarily will be sufficient to permit a fact finder to find that the letter was, in fact, received by the party to whom it was addressed.

admin. law - appeal - date of decision v. date of mailing

Ribaudo v. DPW - Supreme Court - April 29, 2009

majority - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-115-2008mo.pdf
dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-115-08do.pdf
reversing http://www.courts.state.pa.us/OpPosting/CWealth/out/351CD06_1-4-07.pdf

Held: A notice of adjudication that clearly advised the party of the starting and ending dates of the applicable appeal period, but did not specifically designate the date stamped on the notice as the notice’s mailing date, was held to be sufficient to trigger the start of the appeal period. Therefore, an appeal filed more than 8 months after the decision was untimely.

The statute in qeustion specified that the appeal period was to run from the date of the notice, not the date of mailing of the notice.

The court said that the "linchpin" in the case was its decision in Schmidt v. Commonwealth, 433 A2d 456 (Pa. 1981), where it "addressed whether a notice of adjudication, whose only indication of its date of mailing was a postmark, triggered the relevant appeal period. We construed the statutory language at issue in Schmidt as implying a duty on the part of the government agency to advise the taxpayer of the mailing date, and we concluded it would be “manifestly unjust” to dismiss a taxpayer’s appeal based on some internal departmental mailing date where the taxpayer was never informed of the mailing date."

The court said (and noted that appellant conceded that it "did not impose in Schmidt an absolute rule that all administrative agency notices must contain a mailing date which is specifically designated as such. Rather, Schmidt requires only that an agency’s notice of adjudication sufficiently inform the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights."

The court held that "DPW complied with Schmidt. It notified [appellant] of the starting date of the appeal period and advised appellant that if it disagreed with the findings contained in the audit report, it had “the right to ppeal by filing a written request for a hearing with [the Bureau] within 33 days of the date of this letter,” and the letter was date-stamped “MAR 31, 2004.” The combination of the letter’s content and the date-stamp was sufficient to put appellant on notice that the appeal had to be filed within 33 days of March 31, 2004 ─ “the date of this letter.” Moreover, this information comported with the relevant statute specifying that appeals must be filed within 33 days “of the date of the notice of the departmental action” rather than the date of mailing.

The court reaffirmed its approach in Schmidt, and held that "whether an agency’s notice of adjudication triggers the start of an appeal period depends on whether, consistent with the applicable statute, the notice sufficiently informs the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights. Because we find that the notice in this case was sufficient, the appeal to the Bureau was untimely."

abuse - expungement - proof of identity - collateral proceedings - standard of proof

C.S. v. DPW - Cmwlth. Court - May 1, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/426CD08_5-1-09.pdf

Welfare authorities in an expungement appeal could not rely on evidence in a dependency case to prove that appellants-parents abused their child, when the evidence in the dependency case was only "prima facie evidence that the parents were the abusers."

The court distinguished J.G. v. DPW, 795 A.2d 1089 (Pa. Cmwlth. 2002), where the identity of the perpetrator was established in a separate court proceeding, and clarified its opinion in K.R. v. DPW, 950 A2d 1069, 1072 (Pa. Cmwlth. 2008) to make clear that where "a founded report is based upon a judicial adjudication in a non-criminal proceeding, such as a dependency action, in which the court enters a finding that the child was abused, but does not issue a corresponding finding that the named perpetrator was responsible for the abuse, a named perpetrator is entitled to an administrative appeal before the secretary to determine whether the underlying adjudication of child abuse supports a ‘founded report’ of abuse."

The court also noted the different between dependency and expungement actions. In dependency cases, CYS needs to establish the fact of abuse by clear and convincing evidence, but the identity on the alleged abuser only by prima facie evidence.

"By contrast, in expungement proceedings, the county agency or DPW has the burden of proving by substantial evidence that the alleged perpetrator's conduct falls within one of the definitions of child abuse set forth in Section 6303(b)(1) of the CPSL....Section 6303(a) of the CPSL defines an "indicated report" as a child abuse report based on a determination by the county agency or the Department that, "substantial evidence of the alleged abuse exists." 23 Pa. C.S. § 6303(a).

For the purpose of an expungement proceeding, substantial evidence is "[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." Thus, the standard for determining the identity of a perpetrator in dependency matters is a significantly lower burden of proof than in expungement proceedings. The different burdens of proof set forth for the proceedings highlight the fundamentally different purposes that dependency proceedings and expungement proceedings serve." (emphasis added)

Note: The use of term "substantial evidence" in the statute is confusing and misleading. The definition is virtually the same as "preponderance of the evidence." "A preponderance of the evidence is defined as "the greater weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement for preponderance of the evidence." Raker v. Raker, 847 A.2d 720, 724 (Pa.Super. 2004)

In fact, there is a strong argument that since expungement cases involve the fundamental right of reputation under Article I, sec. 1, of the Pennsylvania Constitution, the standard of proof should be clear and convincing. As the majority noted, the "CPSL is geared more towards reporting perpetrators of abuse, which may adversely affect a perpetrator’s reputation and employment opportunities. A.Y. v. Department of Public Welfare, 537 Pa. 116, 125 n.7, 641 A.2d 1148, 1152 n.7 (1994); 23 Pa. C.S. § 6338(a).

As the Supreme Court in A.Y. explained, "Although less process is due in an administrative proceeding than where criminal charges have been brought, an administrative adjudication of suspected child abuse is of the most serious nature. Therefore, this society, which was founded upon, inter alia, its citizens' ‘inherent and indefeasible rights . . . of acquiring, possessing and protecting property and reputation,’ cannot blithely surrender those rights in the name of prosecutorial convenience." A.Y., 537 Pa. at 124, 641 A.2d at 1152.... Thus, the higher standard of proof required in an expungement proceeding to prove the identity of a perpetrator is reasonable in light of his "inherent and indefeasible rights" which may be negatively affected."

UC - willful misconduct - negligence v. breach of employer rule

Moran v. UCBR - Cmwlth. Cour - Ap[ril 27, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1659CD08_4-27-09.pdf

The court rejected claimant's argument that his failure to put the brake on his truck was merely negligence, under Navickas v. UCBR, 787 A.2d 284 (Pa. 2001), since claimant was fired not for a negligent error but rather for the violation of the work rule regarding putting the brake on trucks.