admin. law - regulations - type, adoption, validity

Slippery Rock School District v. UCBR - Pennsylvania Supreme Court - November 30, 2009

http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-72-2009mo.pdf

This case concerns the adoption by the Pennsylvania Dept. of Labor and Industry (DOLI) of a UC regulation concerning benefits for teachers and other educ. employees, who are disqualified from receiving benefits if they have a "reasonable assurance" of continuing employment during the ensuing regular school period, UC Law sec. 402.1, 43 P.S. sec. 802.1.

The regulation involved established a new test of "economic equivalency" -- that there is reasonable assurance only if the "economic terms and conditions" offered for the ensuing academic period are "not substantially less that the terms and conditions of the individual's employment" prior to being laid off at the end of the first academic period. 34 Pa. Code sec. 65.161(a)

In holding that the DOLI regulation in question was valid, the court discussed several important features of state administative law concerning the types, adoption, and validity of regulations.

Pennsylvania courts have developed a two-step process for determining whether an administrative regulation is mandatory and binding. First, a court must determine what type of regulation it is examining (legislative or interpretive) and second, whether the regulation is valid.
Depending on what type it is, the regulation may be either binding (legislative) or merely entitled to deference (interpretive). Id. Generally, a legislative regulation establishes “a substantive rule creating a controlling standard of conduct.”

Legislative regulation - validity - A legislative regulation is valid if adopted pursuant to delegated legislative power, in accordance with the appropriate administrative procedure, and is reasonable. By comparison, an interpretive regulation merely construes and does not expand upon the terms of a statute.

Interpretive regulation - validity - An interpretive regulation is valid if it “genuinely track[s] the meaning of the underlying statute.” Id. If the interpretive regulation “is unwise or violative of legislative intent, courts disregard [it].” The test for determining the validity of an interpretive regulation is also applied to a regulation that establishes a substantive rule in two other circumstances: if the regulation was adopted by a Commonwealth agency without lawmaking power or if it was adopted without meeting the appropriate procedural requirements.

Scope of DOLI power and authority to adopt regulations
Under Section 201 of the Act, 43 P.S. § 761(a), the Department shall have power and authority to adopt, amend, and rescind such rules and regulations . . . as it deems necessary or suitable. Such rules and regulations shall not be inconsistent with the provisions of [the Act.]

The court rejected the school district’s argument that the Section 201(a) limitation regarding regulations inconsistent with the statute should be given the broad interpretation that the Department may not adopt any legislative regulations. Such an interpretation "leads to the absurd result that enabling statutes that do not contain the limiting language permit the adoption of regulations inconsistent with those statutes. Clearly the legislature would not authorize agencies to adopt binding regulations inconsistent with the applicable enabling statutes. . . .Indeed, all regulations, whether legislative or interpretive “must be consistent with the statute under which they were promulgated.” The sec. 201(a) limitation merely codifies this requirement by stating that only Department regulations consistent with the provisions of the Act are valid.

The court also rejected the school district’s argument that the complex nature and “detailed statutory scheme” of the UC Act suggests that the Department’s regulatory authority is limited. Indeed, the Act specifically grants the Department “power and authority to adopt, amend, and rescind such rules and regulations . . . as it deems necessary or suitable.” 43 P.S. § 761(a). If the complex nature of a statute (the Act) were a criterion for denying a Commonwealth agency (the Department) the power to promulgate legislative regulations, then the intent of the legislature that the Department adopt regulations “as it deems necessary or suitable,” as expressed by the plain language of the Act, would be thwarted. Indeed, the logical consequence of the School District’s argument is that the Department would not be able to adopt any regulations because the legislature had spoken on every issue. The rules of statutory interpretation do not permit such a conclusion.

The court also refused to consider the complexity of a statutory scheme as an element in determining the ambit of an agency’s statutory power and authority to adopt regulations where the language of the statute is clear and unambiguous in its direction that the agency may adopt such regulations.

What is a "reasonable regulation"?
In deciding whether an agency action, such as promulgation of a legislative regulation, is reasonable, a court is "not at liberty to substitute its own discretion for that of administrative officers who have kept within the bounds of their administrative powers. To show that these have been exceeded in the field of action involved, it is not enough that [the agency’s regulation] shall appear to be unwise or burdensome or inferior to another. Error or unwisdom is not equivalent to abuse. What has been ordered must appear to be so entirely at odds with fundamental principles as to be the expression of a whim rather than an exercise of judgment." Similarly, the Court has held that “appellate courts must accord deference to the agency and may only overturn an agency determination if the agency acted in bad faith or the regulations constituted a manifest or flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions.”

The regulation in question was reasonable and consistent with the UC Law as a whole and corrected an "inequity" in the UC Law
The court held that the regulation was not inconsistent with the language of the state and that it was "reasonable, because it is not so at odds with [the statute's] “fundamental principles as to be the expression of a whim rather than an exercise of judgment.”

According to the school district, the regulation conflict with the legislative intent of sec. 402.1(1) because the purpose of that section is “to eliminate the payment of benefits to school employees during summer. However, the court found that that "view fails to acknowledge that sec. 402.1(1), when read in its entirety and in the context of the Unemployment Compensation Act, offers a limited right to avoid paying unemployment benefits." [emphasis added]

It is true that "intent of the legislature in passing sec. 402.1 was to eliminate the payment of benefits to school employees during summer months and other regularly scheduled vacations, on the rationale that such employees are able to anticipate and prepare for these nonworking periods. The law thus recognizes that these employees are not truly unemployed or suffering from economic insecurity during scheduled recesses."

However, this "rationale breaks down with respect to school employees like the claimant. The decrease in her income was not caused simply by the summer vacation but by the school district’s decision to offer her a position with fewer hours, salary, and benefits. The regulation addresses the inequitable gap created for school employees like claimant when her position disappears during the second academic year and her only option is to be unemployed or accept a position with less or possibly no compensation."

The Department’s regulation thus "remedies the inequity pursuant to the stated purposes of the Unemployment Compensation Act. The first stated goal is humanitarian: to provide “[s]ecurity against unemployment and the spread of indigency.” 43 P.S. § 752 (Declaration of public policy). The Regulation extends unemployment benefits to persons who have suffered a loss of income." [emphasis added]

The Act’s second stated and equally important goal is to cooperate fully with USDOL so as “to secure to this Commonwealth and its citizens all advantages available under the provisions of the Social Security Act that relate to unemployment compensation.” 43 P.S. § 767(a)(1). As the Pa. Bulletin publication recounts, USDOL notified the Commonwealth of its failure to conform to federal law in its interpretation of “reasonable assurances.” The Department’s regulation adjusted Pennsylvania unemployment law to conform to USDOL’s requirement and, as a result, met its statutory mandate. Placed into context, the regulation is clearly consonant with Section 402.1(1) and the rest of the Act so it is therefore reasonable.

contracts - student handbook

Tran v. State System of Higher Eduction - Cmwlth. Court - December 2, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1912CD08_12-2-09.pdf

Nursing student at state university sued school for improperly dismissing her from the program, in violation of the terms set out in the student handbook.

The court held that the handbook "does not constitute a bilateral contract by which the University was bound. The cases relied upon by Petitioner...to establish the existence of such a contract involved private college students pursuing contract damages against private colleges and universities for averred violations of the disciplinary procedures in the respective student handbooks. Pennsylvania Courts have held consistently that the relationship between a student and a privately funded college is “strictly contractual in nature.” Reardon, 926 A.2d at 480; see also Barker v. Bryn Mawr College, 278 Pa. 121, 122, 122 A. 220, 221 (1923); Psi Upsilon of Philadelphia v. University of Pennsylvania, 591 A.2d 755, 758 (Pa. Super. 1991); Boehm v. University of Pennsylvania School of Veterinary 7 Medicine, 573 A.2d 575, 579 (Pa. Super. 1990); Morein v. Drexel University, 44 Pa. D. & C. 4th 13 (2000); Smith v. Gettysburg College, 22 Pa. D. & C. 3d 607 (1982); and Eter v. College Misericordia, 28 Pa. D. & C. 3d 402 (1982). (emphasis in original).

Commonwealth Court "has declined to construe the student handbook of a public university as a contract between the public university and the student. Crabtree v. California University of Pennsylvania, 606 A.2d 1239, 1240 n. 3 (Pa. Cmwlth. 1990). Accordingly, because the University is a public entity, we conclude that the Handbook did not constitute a contract between Petitioner and the University. Rather, the Handbook set forth the administrative procedures and remedies available and, if the University failed to follow those procedures and remedies, Petitioner could have, and should have, appealed the University’s determinations.

Query: What is the basis for distinguishing private v. public here?

execution - entireties property

State Farm v. Lincow - ED Pa. - December 1, 2009 (decision of magistrate judge)

http://www.paed.uscourts.gov/documents/opinions/09D1420P.pdf

The property at issue -- season tickets to the Philadelphia Eagles -- is not the sort that our clients are likely to have, but the principles involved are very important and relevant.

The creditor got a judgment against husband and began execution on Eagles season tickets. The judgment debtor moved for a determination of ownership, claiming that the tickets were entireties property belong to both him and his wife.

Under Pennsylvania law, a judgment creditor may execute on property held by husband and wife as tenants by the entireties only if both spouses are judgment debtors. Klebach v. Mellon Bank, N.A., 565 A.2d 448, 450 (Pa. Super. Ct. 1989). If only one spouse is the judgment debtor, entireties property is immune from process, execution, or sale. The judgment in this case was just against the husband and not the wife.
The issue of ownership of is a matter of contract interpretation. Under Pennsylvania law, when the intention of the parties is clear in the written contract, there is no need to resort to extrinsic evidence. Instead, the meaning of a clear and unequivocal written contract “must be determined by its contents alone.” Bohler-Uddeholm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79, 92 (3d Cir. 2001), cert. denied, 534 U.S. 1162 (2002).

However, where the contract terms are ambiguous and susceptible to more than one reasonable interpretation, the court may receive extrinsic parol evidence to resolve the ambiguity. See id at 93. A contract “will be found ambiguous if, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning.” Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 614 (3d Cir. 1995).

In this case, only the husband signed the agreement. However, he testified that was because there was only one signature line. In addition, the tickets were paid for in the past from a joint account, and both husband and wife are listed as ticket owners on several documents. The court thus found that the agreements are ambiguous concerning ownership, and the court considered parol evidence to resolve the ambiguities. That evidence strongly favored a finding that the property was held by the entireties.

In the alternative, even if the court found that the terms of the agreements were not ambiguous, and that the husband/signatory of the contracts was the sole owner, "this is not dispositive because under Pennsylvania law the intent of the husband and wife to hold property by the entireties should be given effect if the evidence supports that fact. See Plastipak Packaging, Inc. v. DePasquale, 937 A.2d 1106, 1110 (Pa. Super. Ct. 2007) (“[I]ntention is the cardinal and controlling element, and if intention that the husband and wife shall take as such, i.e., by entireties, sufficiently appears, it will be given effect.”) (citation omitted), appeal denied, 956 A.2d 436 (Pa. 2008) (Table).

In the absence of a writing executed by both spouses, property titled in one spouse’s name alone, but treated by both spouses during the marriage as property owned by the entireties, constitutes jointly held property. See Hengst v. Hengst, 420 A.2d 370, 370 (Pa. 1980) (applying this principle to a savings plan titled in husband’s name alone; property owned by the entireties where both spouses treated it as jointly held property during the marriage). See also In re Estate of Holmes, 200 A.2d 745, 747-48 (Pa. 1964) (shares of stock purchased by the husband with his own funds, but the certificates for which were issued in the name of the husband and wife, created a gift and an estate by the entireties).

Here, despite only the signature of the husband on the agreements, it is clear that wife and husband treated the Eagles tickets throughout their marriage as entireties property, and intended them to be held as such. This intent is confirmed by the listing of both their names on two separate agreements. Thus, under Pennsylvania law, the property must be considered as being held as tenants by the entireties. As entireties property, the Eagles Tickets, and license associated therewith, are exempt from execution.

UC - reasonable assurance - economic equivalency

Slippery Rock School District v. UCBR - Pa. Supreme Court - November 30, 2009

http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-72-2009mo.pdf


Former long-term substitute teacher who was offered only day-to-day position in the ensuing school year did not have "reasonable assurance" of continuing employment and was thus eligible for UC benefits when laid off from the long-term position.


Section 402.1(1) of the UC Law provides that teachers and other school employees are not entitled to receive unemployment benefits during the summer recess if they have “reasonable assurance” of returning to their job in the next academic year, 43 P.S. § 802.1(1)


The decision was based on 34 Pa. Code § 65.161, which was held to be a reasonable, valid and binding regulation, which was properly adopted, within the Department's powers, and consistent with the terms of the UC Law, sec. 402.1, 43 P.S. § 802.1(1), even though it concededly created a "new standard of conduct" -- economic equivalency.


Under sec. 65.161, there is no reasonable assurance where the "economic terms and conditions of the employment offered to the individual for the second academic period are. . . substantially less than the terms and conditions of the individual’s employment in the first academic period.... (c) For the purposes of subsection (a), economic terms and conditions of employment include wages, benefits and hours of work. "The element of 'reasonable assurance' addressed by the Regulation is known as economic equivalency."


"The Regulation addresses the inequitable gap created for school employees like [the claimant] when her position disappears during the second academic year and her only option is to be unemployed or accept a position with less or possibly no compensation.


The Department’s Regulation also remedies the inequity pursuant to the stated purposes of the UC Act. The first stated goal is humanitarian: to provide “[s]ecurity against unemployment and the spread of indigency.” 43 P.S. § 752 (Declaration of public policy). The Regulation extends unemployment benefits to persons who have suffered a loss of income."


The Act’s second stated and equally important goal is to cooperate fully with USDOL so as “to secure to this Commonwealth and its citizens all advantages available under the provisions of the Social Security Act that relate to unemployment compensation.” 43 P.S. § 767(a)(1). As the Pa. Bulletin publication recounts, USDOL notified the Commonwealth of its failure to conform to federal law in its interpretation of “reasonable assurances.” 33 Pa. Bull. 25 (January 4, 2003). The department’s regulation adjusted Pennsylvania unemployment law to conform to USDOL’s requirement and, as a result, met its statutory mandate. Placed into context, the Regulation is clearly consonant with Section 402.1(1) and the rest of the Act so it is therefore reasonable. The court held that the regulation, 34 Pa. Code § 65.151 was a "valid exercise of the Department’s power to promulgate legislative regulations."

consumer - arbitration clause

Kaneff v. Delaware Title Loan - 3d Cir. - November 24, 2009

http://www.ca3.uscourts.gov/opinarch/081007p.pdf

This case involves a personal loan for $550 on which the plaintiff's car was collateral. Over a 6-month period, plaintiff paid over $800 but still owed over more than $700 on this loan, on which the interest rate was 300%. After a series of unfortunate events, including repossession, plaintiff sued the loan company. She eventually got the car back then brought a class action under a number of consumer protection statutes.

The lower court dismissed the case and granted defendant's motion to compel arbitration, pursuant to a clause in the contract.

Here are comments about the case from plaintiff's counsel, Robert Salvin, staff attorney with Community Impact Legal Services. His brief is attached.

---

We finally have a decision in the Kaneff case, and unfortunately it is not good. The Third Circuit affirmed the district court decision enforcing the arbitration agreement. It is quite disheartening. A copy of the decision is attached. I was so much hoping that after all this time there would be a better decision than this one. The court did not find that the class action waiver was unconscionable.

The court agreed that the cost sharing provision of the arbitration agreement was unconscionable, and severed it from the agreement. That cost sharing provision, which was presumably in all of the contracts, required borrowers to pay their own fees and costs even though the applicable consumer protection statutes would allow fees and costs (including attorney's fees) to be shifted to Delaware Title Loans in a successful case. I had argued that even the presence of the clause was a problem because it was a misrepresentation to all of the consumers who signed similar contracts of their ability to obtain fees and costs in a successful arbitration and would having a chilling effect on challenges. There is not really any discussion of that argument in the decision. There is not much discussion of the exception to arbitration that allowed Delaware Title Loans to bypass arbitration and repossess borrowers' cars by self help. The court basically concludes in summary fashion that the arbitration clause is not unconscionable under Pennsylvania law.

There is one good point to the decision, which is that the court performed a choice of law analysis and did find that Pennsylvania law applied. That is a finding that supports the merits of the argument for every Pennsylvania borrower that title loans originating in Delaware are illegal in Pennsylvania. It is certainly helpful in the Salvatico case.

So the court makes a key choice of law decision that Pennsylvania law applies to the transaction despite the choice of law clause in the contract contrary, but then abandons thousands of Pennsylvanians who have borrowed money from this lender and others like it by depriving them of an effective remedy in the form of a class action.

I do not think it is clear that a Pennsylvania court would reach the same conclusion as to the class action waiver. The Third Circuit has previously indicated its rejection of the Pennsylvania Superior Court cases on class action waivers, which are favorable consumers, but a trial court in Pennsylvania would be bound by those decisions. In other words, I would suggest that a similar case could still be filed in state court against a similar entity challenging a class action waiver under the Superior Court authority, and such a case could be kept in state court if the complaint was limited to state law causes of action and contained express limitations on damages, not more than $74,999 per in person, not more than $4,999,999 in the aggregate. Food for thought. There is some possible subtlety in the decision. I suggest you take a look. I am wondering whether the court is suggesting that an arbitrator could still find that the entire contract, including the class action waiver, is unconscionable?

One might think the choice of law part of the decision would have a chilling effect on loans made to Pennsylvanians in the future, but I doubt it.

There is a limited period, ten days I suppose (but I need to check), to file for en banc review.

PFA - "family/household member" - grandfather of plaintiff's child

Slusser v. DeBoer - Superior Court - November 23, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a26039_09.pdf

PFA order properly granted PFA order to mother of defendant's grandchild. Defendant was a "family or household member" under the Act.

The court rejected grandfather's argument that his relationship to the mother of his grandchild does not fit within any of the relationships described in the definition of "abuse" -- the "occurrence of one or more...acts between family or household members, sexual or intimate partners or persons who share biological parenthood." (emphasis in original)

Both parties "have a direct blood relationship to the child, and by extension are inextricably linked to each other by that relationship. In fact, the parties are more directly related by consanguinity than the in-law relationship that was deemed adequate to invoke the protection of the Act in McCance v. McCance, 908 A.2d 905, 910 (Pa.Super. 2006) (Court interpreted “affinity” to include a family relationship of in-laws)."

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The abuse here consisted of defendant pulling a gun out of the glove compartment, showing it to plaintiff andt telling her that if she didn't let him see his granddaughter, she knows what he could do.

__._,_.___

child abuse - dependency - appeal - aggrieved party

In the Interest of J.G., a minor - Superior Court - November 13, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1948CD08_11-17-09.pdf

County child welfare agency (CWA) was not an "aggrived party" under PRAP 501 and did not have standing to appeal a lower court decision holding that the subject child was dependent, but failing to specify that the child's parents had committed the abuse.

CWA petitioned the court for a dependency order. It did not request a specific finding that the parents had abused the child. The lower court refused to make such a finding, given the fact that the child had been under the control of both the parents and a babysitter during the period when the abuse had taken place, thus preventing the application of the presumption in 23 Pa. C.S. 6381.

"Although a prevailing party may disagree with the trial court’s legal reasoning or findings of fact, the prevailing party’s interest is not adversely affected by the trial court’s ultimate order because the prevailing party was meritorious in the proceedings below.....Under Pa.R.A.P. 501, “[o]nly an aggrieved party can appeal from an order entered by a lower court.” ...This Court has consistently held that for purposes of Pa.R.A.P. 501, “[a] party is ‘aggrieved’ when the party has been adversely affected by the decision from which the appeal is taken. A prevailing party is not ‘aggrieved’ and therefore, does not have standing to appeal an order that has been entered in his or her favor.”

There is no statutory provision in the Child Protective Services Law or the Juvenile Act to suggest that the trial court must make a specific finding as to which caretaker perpetrated the abuse in order to adjudicate a dependent. These are two separate inquires. Where, as here, the evidence is inconclusive as to who had control or supervision over the child at the time of the abuse, the presumption in 23 Pa.C.S.A. § 6381(d) is inherently self-rebutting, and applying it to one or both persons alleged to be the perpetrators would be arbitrary and capricious in the absence of a credibility determination and a factual finding by the trial court to the contrary.

UC - referee performance - backlog

Horwitz v. Dept. of Labor and Industry - Cmwlth. Court - November 16, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/221CD09_11-16-09.pdf

UC referee's challenge to his employee performance report (EPR) rejected, holding that there was no discrimination against him based on non-merit factors.

The EPR essentially reflects the Department’s conclusion that Horwitz had an unacceptable backlog of decisions. Two standards pertinent to the present case provide as follows:

Disposal of Cases - Each referee is to schedule and dispose of an average of 30-35 appeals per week. 30-35 meets standard, more than 35 exceeds standard.
Issuance of Decisions - Federal mandates will remain the same until new mandates are promulgated in the near future. 60% of all hearings decided within 30 days, 80% of all hearings decided within 45 days are satisfactory.

In addition to the federal standards, DOLI requires that all Referees issue decisions as quickly as possible after hearings.

The opinion indicates that there were "nine complaints during the fall of 2007 from parties who had waited two to four months for decisions from Horwitz."

UC - voluntary quit - personal preference v. necessitous and compelling reason

Dopson v. UCBR - Cmwlth. Court - November 13, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1129CD09_11-13-09.pdf

Claimant requested an FMLA leave to go to South Carolina to help care for the young child of her son and daughter-in-law, who were finishing students teaching study for medical board tests, respectively. The court held that "Claimant did not quit her job to rejoin a spouse, but to temporarily relocate to assist her son and daughter-in-law. While laudable, this was her personal preference. This Court agrees with the Board that Claimant lacked a necessitous and compelling reason to terminate her employment." Hammond v. UCBR, 569 A.2d 1013 (Pa. Cmwlth. 1990),

The court distinguished decisions in Truitt v. UCBR, 527 Pa. 138, 589 A.2d 208 (1991), Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000), and Wagner v. UCBR, 965 A.2d 324 (Pa. Cmwlth. 2009).

housing - disability - reasonable accommodation

Solivan v. Valley Housing Development Corp. - ED Pa. - November 9, 2009

http://www.paed.uscourts.gov/documents/opinions/09D1355P.pdf

This case involved a plaintiff-tenant's claims against a sec. 8 landlord for, inter alia, failure to reasonably accommodate her disability in the leasing of an apartment. For the most part, the Court rejected the defendant's motion for summary judgment, as follows:

- statute of limitations - plaintiff apparently came within the two-year statute

- disability - plaintiff present sufficient evidence that she was "disabled" under the ADA, i.e., that she suffered from “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2)

- reasonable accommodation - The Court must consider: 1) whether Plaintiff’s requested accommodation/modification was necessary to afford her an equal opportunity to use and enjoy the dwelling; and 2) whether Plaintiff’s requested accommodation was reasonable, or whether it imposed an undue hardship on Defendant. To show that a requested accommodation is necessary, a plaintiff “must show that, but for the accommodation, [she] will likely be denied an equal opportunity to enjoy the housing of [her] choice.” Lapid-Laurel, LLC v. Zoning Bd. Of Adjustment of Twp. Of Scotch Plains, 284 F.3d 442, 461 (3d Cir. 2002). Here, without the accommodation of a first floor apartment, Plaintiff was required to walk up two flights of stairs in order to enter or leave her apartment, which took her 30 minutes.

- expert testimony - not required at this point - The standard for whether expert testimony is required under federal law is as follows: Expert testimony is not necessary . . . if all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation. Padillas v. Stork-Gamco, Inc., 186 F.3d 412, (3d Cir. 1999).

- money damages - Under the section of the ADA prohibiting discrimination in public accommodations, private plaintiffs may not obtain monetary damages. Preventive relief, including an injunction or restraining order, is the only remedy. 42 U.S.C. § 12188 (a)(1) (providing that “the remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter;” 42 U.S.C. § 2000a-3(a) describes preventive relief). Summary judgment on this issue to defendant.

- sec. 1983 - The private landlord was not a state actor, in spite of receipt of rent in the form of govt. subsidies. Cases considering the application of 42 U.S.C. § 1983 against housing providers who accept and even rely exclusively on Section 8 vouchers hold that such housing providers are private actors who are not acting under color of state law. Miller v. Hartwood Apartments, 689 F.2d 1239, 1242 (5th Cir. 1982); Young, supra at 366; see Morris v. Dehaan, 1991 U.S. App. Lexis 22135, *10 (6th Cir. 1991); Tosta v. Williams, 1987 WL 17233, *3 (E.D.P.A. 1987).

disability - ALJ duty to a) order consultative exams and b) to develop the record

Poleck v. Astrue - ED Pa. - November 9, 2009

http://www.paed.uscourts.gov/documents/opinions/09D1349P.pdf

The Magistrate Judge found that the ALJ failed to fully articulate his reasons for denying plaintiff's claims regarding his alleged heart impairment and carpal tunnel syndrome and recommended that these claims be remanded for further consideration by the Commissioner. Plaintiff appealed, claiming that the ALJ should have ordered second consultative examination and should have more fully developed the record. The court disagreed.

Failure to Order a Second Consultative Examination
Plaintiff claims that 20 C.F.R. § 1519a creates an independent duty on the part of the ALJ to order a second consultative examination even though plaintiff had informed the ALJ that he had medical insurance and would see his doctors for further evaluation. Plaintiff's 443). Plaintiff's reading of the regulation is incorrect.

Section 1519a states that a consultative examination may be purchased when the record as a whole is insufficient to support a decision on a claim. It then lists five situations that normally require a consultative examination.1 None of them apply in this case. Moreover, 20C.F.R. § 404.1512 states that it is the claimant’s responsibility to provide medical evidence showing the existence and scope of any impairment. This is consistent with the general principle that the claimant – not the Commissioner – has the burden of proof.

1 The five situations in which a consultative examination is required are when (1) additional evidence needed is not contained in the claimant’s medical sources, (2) evidence from the claimant’s medical source cannot be obtained for reasons beyond the claimant’s control, (3) the evidence is highly technical or highly specialized and not available from the claimant’s medical sources, (4) a conflict, inconsistency, ambiguity or insufficiency in the evidence must be resolved but cannot be by contacting the claimant’s medical source and (5) there is an indication of a change in the claimant’s condition that is likely to affect the claimant’s ability to work but the severity of the change cannot be established. 20 C.F.R. § 1519a(b)(1) - (5).

ALJ Duty to Develop the Record
Claimant argued that the 1) status of his alleged back, heart and mental impairments was unknown at the time of the hearing, 2) in such circumstances the ALJ has an affirmative duty to develop the record, 3) this duty could only be satisfied by ordering a second consultative examination, 4) the ALJ did not order such an examination and, therefore, 5) the ALJ’s decision is not supported by substantial evidence.

"This argument’s third premise is mistaken. It is important to recognize that the scope of an ALJ’s duty to independently investigate the facts is relatively narrow. In Sims v.Apfel, the Supreme Court stated that ALJs have a duty “to investigate the facts and develop the arguments both for and against granting benefits,” but this portion of his opinion was joined by only three other members of the court and is not precedential. 530 U.S. 103, 111 (2000). Although the Third Circuit has quoted this language favorably in two precedential opinions, it has never formally imposed a broad duty to investigate and develop arguments for all parties...."

The regulation describing the duties of the ALJ states, in part, that the ALJ "shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. If the ALJ believes that there is relevant and material evidence available which has not been presented at the hearing, the ALJ may adjourn the hearing or, at any time prior to the mailing of notice of the decision, reopen the hearing for the receipt of such evidence." 20 C.F.R. § 410.640 (emphasis added).

The only Third Circuit opinion directly interpreting the scope of this regulation is Hess v. Secretary, 497 F.2d 837 (3d Cir. 1974). In Hess, an ALJ denied the claimant's benefits claim without consulting his attending physician and without interviewing or examining the plaintiff. Id. at 840. The Third Circuit concluded that this was error, explaining that the claimant had the burden of proving his disability but that “due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary systemprevails.” Id.

In its application of thismore tolerant standard the Third Circuit explicitly refused to hold “that the responsibility will always be upon the hearing officer to secure current medical evaluations.” Id. at 841. Instead, it stated that “some lesser effort might be employed” and, in a non-exclusive list of examples, noted that an ALJ might advise claimants of the importance of current medical evaluations and suggest their submission at a later date. Id.

The Third Circuit explicitly refused to hold “that the responsibility will always be upon the hearing officer to secure current medical evaluations.” Id. at 841. Instead, it stated that “some lesser effort might be employed” and, in a non-exclusive list of examples, noted that an ALJ might advise claimants of the importance of current medical evaluations and suggest their submission at a later date. Id.

Here, the magistrate judge balanced plaintiff’s right to have his record developed by the ALJ with his burden to prove that he is disabled. The ALJ questioned claimant about the possibility of obtaining additional medical records. Claimant said that he had medical insurance, that he would consult his doctor, and that he would agree to any tests recommended by his doctor. His attorney said nothing to the contrary. Before this exchange, the ALJ had already agreed to leave the record open for thirty days so that claimant and his counsel could submit additional evidence. In these circumstances, the ALJ had every reason to believe that claimant would provide him with a complete record.

drivers license - refusal to take chemical test - location of request/refusal - silence

Deal v. PennDOT - Cmwtlh. Court - November 5, 2009 - unpublished memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/344CD09_11-5-09.pdf

silence - In Broadbelt v. DOT, 903 A.2d 636 (Pa. Cmwlth. 2006), our court determined that the licensee’s silence when asked to submit to chemical testing after having been read the DL-26 form, constituted a refusal in violation of Section 1547 of the Vehicle Code. This court has consistently held that “police officers are not required to spend effort either cajoling the [licensee] or spend time waiting to see if the [licensee] will ultimately change his mind.” King v. DOT, 828 A.2d 1, 5, n.8 (Pa. Cmwlth.), appeal denied, 577 Pa. 738, 848 A.2d 931 (2002)

location of request/refusal - Our Supreme Court in DOT v. Scott, 546 Pa. 241, 253, 684 A.2d 539, 545 (1996), stated that: the police must advise the motorist that in making this decision, he does not have the right to speak with counsel, or anyone else, before submitting to chemical testing, and further, if the motorist exercises his right to remain silent as a basis for refusing to submit to testing, it will be considered a refusal and he will suffer the loss of his driving privileges.

[I]t would be absurd for an officer to drive a licensee to the situs of the breath, blood or urine testing equipment, which could be miles away from the scene of arrest, in order to allow the licensee to look at the equipment prior to the licensee’s silence being considered a refusal. Requiring a police officer to drive the licensee to the situs of testing when the licensee has already been properly warned but has refused chemical testing, either explicitly or through his silence, would fail to serve the purposes of the current Implied Consent Law and would be a waste of valuable and limited police, and State Trooper, resources.

As police officers are now required to give licensees warnings prior to asking them to consent to chemical testing, and such warnings state that “remaining silent when asked to submit to chemical testing will constitute a refusal,” remaining silent will constitute a refusal, irrespective of where the licensee is at the time the warnings are given.

drivers license - refusal to take chemical test - knowing refusal - influence of prescr. drug and head injury

Sitoski v. PennDOT - Cmwlth. Court - October 29, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/431CD09_10-29-09.pdf

If a licensee takes a prescription drug, knowing its side effects, and then sustains a head injury in an accident, the licensee can establish an inability to make a knowing and conscious refusal by presenting expert medical testimony that the head injury played a greater role in the refusal than the prescription drug.

Here, the licensee presented medical testimony, but not about whether licensee’s closed-head injury played a greater role than the prescription sleep medication in his inability to make a knowing and conscious refusal. The doctor testified only that the sleep medication in combination with the closed-head injury made licensee unable to make a knowing and conscious refusal. The suspension, therfore, was proper.
__._,_.___

child abuse - expungement - founded report - finality of appeal

LC v. DPW - Cmwlth. Court - October 29, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/189CD09_10-29-09.pdf

DPW was not required to wait until appellant's criminal appeals were finally resolved to list him as an abuser in a "founded" report. Section 6303 of the Child Protective Services Law defines “founded report” as a child abuse report made pursuant to “any judicial adjudication” of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse. 23 Pa. C.S. §6303. Thus, DPW was not required to wait until L.C. exhausted his appeals to list him as an abuser in a “founded report.”

RESPA - anti-kickback provision - private right of action - no overcharge allegation requiredd

Alston et al. v. Countrywide Financial Corp. - 3d Cir. - October 28, 2009

http://www.ca3.uscourts.gov/opinarch/084334p.pdf

This is a class action brought by homebuyers who sought to recover statutory treble damages pursuant to §8(d)(2) of the Real Estate Settlement Procedures Act of 1974 (“RESPA”), 12 U.S.C. § 2607(d)(2).

Plaintiffs alleged that their private mortgage insurance premiums were channeled into an unlawful “captive reinsurance arrangement”—essentially, a kickback scheme—operated by their mortgage lender and its affiliated reinsurer, in violation of RESPA §8(a) and §8(b), 12 U.S.C. § 2607(a)-(b).*

The thrust of the complaint is that, in enacting and amending section 8, Congress bestowed upon the consumer the right to a real estate settlement free from unlawful kickbacks and unearned fees, and Countrywide’s invasion of that statutory right, even without a resultant overcharge, was an injury-in-fact for purposes of Article III standing. The District Court disagreed and dismissed the complaint without prejudice for lack of jurisdiction.

What is before us for decision turns on a question of statutory interpretation—does or does not the plain language of RESPA section 8(d)** indicate that Congress created a private right of action without requiring an overcharge allegation? We conclude that it does. Accordingly, we will reverse the Order of the District Court.

The plain language of RESPA section 8 does not require plaintiffs to allege an overcharge. The best indication of Congress’s intent in this regard is the method it prescribed for the calculation of statutory damages in [other sections of RESPA]....Critically, none of these provisions contains the word “overcharge” or otherwise implies that the plaintiff must allege that he or she paid more than he or she otherwise would have paid. See id. § 2607(a), (b), (d)(2). Instead, damages are fixed at three times the total charge paid by the consumer in exchange for a settlement service, and not merely any overcharge.

We agree with plaintiffs and the United States, intervening on plaintiffs’ behalf, that the provision of statutory damages based on the entire payment, not on an overcharge, is a certain indication that Congress did not intend to require an overcharge to recover under section 8 of RESPA.
______________
* Section 8(a) prohibits “any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.” 12 U.S.C. § 2607(a). Section 8(b) prohibits unearned fees: “No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service . . . other than for services actually performed.” Id. § 2607(b).

** Congress authorized private actions against a person who violates section 8. As amended in 1983, section 8(d)(2) provides that “[a]ny person or persons who violate the prohibition or limitations of this section shall be jointly and severally liable to the person or persons charged for the settlement service involved in the violation in an amount equal to three times the amount of any charge paid for such settlement service.” Id.

UC - appeal - statement of objections - PRAP 1513(d) - Deal, et al.

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1170CD08_10-28-09.pdf - unreported

Another appeal quashed because the claimant's "general statement of objections to the Board's order in the petition for review fails to fairly embrace the issues raised in his brief filed by his attorney," following Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005) and Maher v. UCBR (Pa. Cmwlth., No. 1843 C.D. 2008, filed October 27, 2009) and rejecting Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008).

UC- vol. quit - follow-the-spouse - necessity

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/652CD09_10-28-09.pdf - unreported

Benefits denied in follow-the-spouse case where spouse took new job in South Carolina to improve his career, and not as a matter of necessity. "It wasn't relocate or else."

“[I]n a following the spouse case the reason for the spouse’s relocation must be beyond the spouse’s control and not a matter of personal preference.” Procito v. UCBR, 945 A.2d 261, 266 (Pa. Cmwlth. 2008). Further, “[w]here a claimant terminates employment to join a relocating spouse, the claimant must demonstrate an economic hardship in maintaining two residences or that the move has posed an insurmountable commuting problem.” Sturpe v. UCBR, 823 A.2d 239, 242 (Pa. Cmwlth. 2003).

Social Security Number - prohibition against disclosure - F.R. Civ. Pa. 5.2(a)

Federal Rules of Civil Procedure 5.2(a) (Privacy Protections for Filings Made with the Court) states that any court filing "may include only" the last 4 digits of a person's social security number and just the year of a person's birth.

A federal district court in Minnesota (Engeseth v. County of Isanti) recently sanctioned an attorney $5,000 for including the full social security numbers of 179 people in an affidavit filed with the court and discussed the serious threat of identity theft.

UC - appeal - statement of objections - PRAP 1513(d) - Deal v. UCBR

Maher v. UCBR - Cmwlth. Court -

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1843CD08_10-27-09.pdf

Pro se attorney claimant appealed an adverse UCBR decision to Commonwealth Court by a Petition for Review which listed the following “Objections to the Determination: 6. The determination of the Unemployment Compensation Board of Review is not supported by substantial evidence. 7. The determination of the Unemployment Compensation Board of Review is based on errors of law."

Majority
The Court granted the UCBR's Motion to Strike the Petition for failing to preserve any issue for the court’s review, relying on Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005), Patla v. UCBR, 962 A.2d 724 (Pa. Cmwlth. 2008) and Jimoh v. UCBR, 902 A.2d 608 (Pa. Cmwlth. 2006), holding that a petition that merely reiterates the court's standard of review and fails to articulate specific objections to the Board’s decision does not satisty Pa. R.A.P. 1513(d), rejecting Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008).

Rule 1513(d) requires “'a general statement of the objections to the order or other determination.' This general statement will be deemed to include every subsidiary question fairly comprised therein. Id. However, more than a restatement of our standard of review is required. Deal. We will not consider issues raised in a party’s brief when they are not sufficiently addressed in the petition for review."

Even though the appellate rules state that “[t]he statement of objections will be deemed to include every subsidiary question fairly comprised therein,” the court held, as it did in Deal, that "a petition for review under Pa. R.A.P. 1513(d) must state its objections with “sufficient specificity to permit the conversion of an appellate document to an original jurisdiction pleading and vice versa should such action be necessary to assure proper judicial disposition.” Pa. R.A.P. 1513, Note." [emphasis in opinion].

Dissent
Judge Leavitt dissented, stating that the "premise to the majority’s decision is that a petition for review must articulate specific objections to the underlying agency decision or face dismissal. That premise, however, is directly contrary to the plain language of the applicable rule of appellate procedure, PA. R.A.P. 1513, which requires only a “general statement” of a petitioner’s objections. How specific must a general statement of objections be? Because Claimant’s petition for review complied with Rule 1513, I would deny the Board’s motion to strike the petition....Rule 1513(d) could not be clearer. In an appellate petition for review, only a “general statement” of a petitioner’s objections to the order or determination is required."

"The word 'general' in this context is free from any ambiguity, and this Court may not disregard the letter of the rule. 1 Pa. C.S. §1921(b). Quite simply, 'general' does not mean 'specific;' it means the opposite of 'specific.'”

The dissent prefered the reasoning in Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008), where the court "offered a better approach for evaluating whether a petition for review contains a “general statement” of issues. In that case, the claimant raised two issues in his petition for review: (1) “the Board failed to ‘review all the facts;’” and (2) “‘this case is not strong enough’ to withhold unemployment compensation benefits.” Pearson, 954 A.2d at 1263. Applying the proviso that “[t]he statement of objections will be deemed to include every subsidiary question fairly comprised therein,” PA. R.A.P. 1513(d), we construed the claimant’s “general statement” of issues to challenge the sufficiency of the evidence and whether the employer had sustained its burden of proof. In doing so, we looked beyond the four corners of the petition for review and noted that “[c]laimant sufficiently addresses these arguments in his handwritten appellate brief.” Pearson, 954 A.2d at 1263."

"Pearson recognizes that a petition for review should not be considered in a vacuum. Indeed, Rule 1513 requires the petitioner to attach a copy of the challenged order or determination, i.e., the adjudication, to the petition for review. By putting the 'general statement' together with the attached adjudication, 'every subsidiary question fairly comprised' can be discussed. The Pearson approach is preferable to the drastic measure of striking a petition for review on a technicality and effectively putting a litigant out of court."

debt collection - "communications" - automated telephone calls

Inman v. NCO Financial Systems - ED Pa. - October 21, 2009

http://www.paed.uscourts.gov/documents/opinions/09D1288P.pdf

Defendant debt collector's automated messages left on Plaintiff's answering machine consituted "communications" under the Fair Debt Collection Pracctices Act, 15 USC sec. 1692a(2). The court relied heavily on the decison in Foti v. NCO Financial Systems, 424 F.Supp. 2d 643 (SDNY 2006)

NCO’s records reflect that automated telephone calls were placed on the dates and times alleged, and that the content of the recordings on Plaintiff’s voicemail system accurately reflects a portion of NCO’s automated interactive “script.” Such portions of the script went as follows:

This message is for - Thomas Inman. Please call us back today at toll-free, 1-800-350-2457. When calling back, the Reference ID is EL9170. Once again, this number is toll-free 1-800-350-2457. Thank you. Goodbye.
or

This message is for - Thomas Inman. Please call us back today at toll-free, 1-800-350-2457. When calling back, the Reference ID is EL9170. Once again, the number is toll-free 1-800-350-2457. Thank you. Goodbye.

There were about 20 such calls over a one-month period.