UC - pro se appeal - timeliness

DeWitt v. UCBR - Cmwlth. Cour - July 15, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2638CD09_7-15-10.pdf



The court held that it did not have the power, under Rule 211 of its Internal Operating Procedure, 210 Pa. Code sec. 67.13, to extend the time for a party to take a pro se appeal beyond that stated in the rule, which provides that

(a) Upon receipt by the chief clerk from a pro se party of a written communication which evidences an intention to appeal, the chief clerk shall timestamp the writing with the date of receipt. The chief clerk shall advise the party by letter:
(1) As to the procedures necessary to perfect the appeal.
(2) That the date of receipt of the pro se communication will be preserved as the date of filing of the appeal, on condition that the party files a proper petition for review within 30 days of the date of the letter from the chief clerk. If the party fails to file a proper petition for review within that period, the chief clerk shall advise the party by letter that the court will take no further action in the matter.
(b) Upon receipt by the chief clerk of a notice of appeal in cases in which a petition for review is the proper appeal document, the chief clerk shall time-stamp the notice of appeal with the date of receipt and the court shall forthwith enter an order giving the party 30 days to file a petition for review and indicating that the failure to do so will result in the dismissal of the appeal. (emphasis added)

The court held that, if the petitioner files its petition for review more than 30 days from the date of the explanatory letter from the chief clerk, referred to abuse, the appeal will be dismissed.

The jurisdictional requirements of filing a petition for review can be deemed met when a petitioner has provided the Court with notice that he/she intends to appeal. Larocca. IOP 211(a)(2) preserves the filing date “on the condition that the party files a proper petition for review within 30 days of the letter from the chief clerk.” 210 Pa. Code § 67.13(a)(2). It then provides that if the party fails to do so “the chief clerk shall advise the party by letter that the court will take no further action in the matter.” Id. Thus, our jurisdiction is conditional on the party filing a perfected petition for review within thirty days of the chief clerk’s letter. Once this thirty-day time period expires, the date of the receipt of the pro se communication is no longer preserved and our jurisdiction is extinguished.

UC - willful misconduct - sleeping on job - medical condition

Philadelphia Parking Authority v. UCBR - Cmwlth. Court - July 14, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1995CD09_7-14-10.pdf


A claimant is not guilty of willful misconduct even when she admittedly slept on the job, under the circumstances of this case, since a) her violation of the employer rule was not deliberate, and b) she had a physical condition (sleep apnea) which caused the conduct and about which she informed the employer.


The court discussed claimant's proof of her physical condition at length, but ultimately resolved the case on the ground the employer did not prove that claimant had deliberately violated the employer rules against sleeping at work.

The record reveals that Claimant’s position involved sitting in the money room for hours with nothing to do and that she would get drowsy. Claimant recognized the problem and attempted to address it by informing Employer that she was tiring and asking for additional work to keep her busy and alert. However, with the exception of two small assignments, Employer did not provide her with additional work or take any other action to remedy the situation. Although Claimant fell asleep during her shift, Claimant attempted to resolve her drowsiness problem in a responsible manner that protected the interests of Employer. Considering Claimant’s actions in light of all of the circumstances of this case, we conclude that Employer failed to prove that Claimant deliberately or intentionally violated its work rules by sleeping during her shift. Because Employer failed to meet its initial burden, the burden never shifted to Claimant to demonstrate good cause for her actions, and we need not address whether Claimant’s testimony was sufficient to establish that medical problems provided her with good cause for sleeping on the job.

Here is the court's discussion about how a claimant must prove a medical condition/physical illness:

Physical illness can constitute good cause for a claimant's noncompliance with an employer's directive. Brillhart v. UCBR, 447 A.2d 697 (Pa. Cmwlth. 1982). To establish such a claim, a claimant is not required to produce expert testimony, but rather need only introduce “competent evidence”: The distinction between ‘competent evidence’ … and the ‘competent medical evidence’ requirement articulated in the opinion of the court below is vital. The former is a broader standard which allows an applicant to meet the burden with his own testimony and supporting documents. The latter is a more stringent requirement which could result in the denial of benefits simply because an applicant fails to provide the expert testimony of a physician even where such testimony would be superfluous or cumulative. The broader standard more effectively comports with this Court's view that the Unemployment Compensation Law must be liberally and broadly construed. Steffy v. UCBR, 499 Pa. 367, 372, 453 A.2d 591, 594 (1982) (emphasis added). This Court subsequently interpreted Steffy to allow a claimant to satisfy his or her burden of production by presenting her testimony and/or supporting documents. Lee Hospital v. UCBR, 637 A.2d 695 (Pa. Cmwlth. 1994); Judd v. UCBR, 496 A.2d 1377 (Pa. Cmwlth. 1985). In Goettler Distributing, Inc. v. Unemployment Compensation Board of Review, 508 A.2d 630 (Pa. Cmwlth. 1986), this Court expressly concluded that the disjunctive “and/or” interpretation of Steffy was the better analysis and was consistent with the broad and liberal interpretation of the Law.

In a concurring opinion, one panel member addressed proof of a medical/physical condition as follows:

I believe that, ordinarily, corroborative medical evidence, either documentary or testimonial, should be required, or at least some corroborating circumstances. Thus, I would revisit those prior published opinions which suggest, in dicta,4 that the claimant’s testimony alone is sufficient as a matter of law. I would not do so here, however, for two reasons. Arguably, medical condition or not, anyone left alone in a room for hours on end late at night with nothing to do might well fall asleep unintentionally. Second, because of this claimant’s significant prior medical history and pre-termination complaints to employer, I would find her credited testimony to be sufficient.

employment - health insurance - employer Ch. 11 bankruptcy

In re Visteon Corp. - 3d Circuit - July 13, 2010


http://www.ca3.uscourts.gov/opinarch/101944p.pdf (95 pp.)


The Industrial Division of the Communications Workers of America , as the representative of approximately 2,100 retirees from Visteon Corporation’s manufacturing plants, appeals the district court’s order, affirming the bankruptcy court’s order permitting Visteon to terminate retiree health and life insurance benefits without complying with the procedures set forth in 11 U.S.C. § 1114.


Both courts reasoned that, notwithstanding the language of that statute, it would be unreasonable to interpret § 1114 as limiting an employer’s right to modify or terminate benefits during the pendency of a Chapter 11 bankruptcy proceeding, if the employer could unilaterally terminate those benefits outside of bankruptcy pursuant to a reservation of rights clause in the benefit plan. Since Visteon reserved the right to unilaterally terminate the retiree benefits at issue here, the courts concluded that Congress did not intend § 1114 to limit that right.


On appeal, the union argues that the plain language and legislative history of § 1114 compel exactly the result the district and bankruptcy courts avoided. The union claims that Congress intended to restrict a debtor’s ability to modify or terminate, except through the § 1114 process, any retiree benefits during a Chapter 11 bankruptcy proceeding, regardless of whether the debtor could terminate those benefits outside of bankruptcy. Based on the plain language of § 1114 (as well as its legislative history), we agree. Accordingly, as explained more fully below, we will reverse the order of the district court and remand for further proceedings.


----------

Section 1114 was enacted...as the primary substantive component of the Retiree Benefits Bankruptcy Protection Act of 1988 (“RBBPA”), Pub. L. No. 100-334, 102 Stat. 610 (1988) (codified as amended at 11 U.S.C. §§ 1114, 1129(a)(13)). Congress enacted the RBBPA in response to LTV Corporation’s termination of the health and life insurance benefits of 78,000 retirees during its 1986 Chapter 11 bankruptcy, with no advance notice to the affected retirees.

In crafting § 1114, Congress provided certain procedural and substantive protections for retiree benefits during a Chapter 11 proceeding. Section 1129(a)(13) ensures that some measure of those protections extends beyond the proceeding....and provides additional protection for retiree benefits by giving them priority they would not otherwise have.

tax sale - notice - posting - hearsay evidence

Ebersole v. Blair County Tax Claim Bureau - Cmwlth. Court - July 9, 2010
unreported memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/2002CD09_7-9-10.pdf


Hearsay evidence about posting by employee of the tax office was not sufficient under the law to prove proper posting.


It is well settled that a valid tax sale requires strict compliance with all three of the notice provisions of the Law, and that the sale is void if any of the three forms of notice are defective. In re Upset Sale Tax Claim Bureau McKean County on September 10, 2007 (Miller), 965 A.2d 1244 (Pa. Cmwlth.), petition for allowance of appeal denied, 602 Pa. 682, 981 A.2d 221 (2009). Strict compliance is necessary to guard against any deprivation of property without due process of law. Id.; Ban v. Tax Claim Bureau of Washington County, 698 A.2d 1386 (Pa. Cmwlth. 1997); In re Upset Price Tax Sale of September 10, 1990 (Sortino), 606 A.2d 1255 (Pa. Cmwlth. 1992).

In determining whether a property is properly posted, a court “[m]ust consider not only whether the posting is sufficient to notify the owner of the pending sale, but provides sufficient notice to the public so that any interested parties will have an opportunity to participate in the auction process.” Ban, 698 A.2d at 1388. By notifying the public at large of the sale, the taxing authority has the greatest opportunity to recover lost tax revenues. O’Brien v. Lackawanna County Tax Claim Bureau, 889 A.2d 127 (Pa. Cmwlth. 2005).

As a result, a court may set aside a tax sale where the property is not properly posted under Section 602(e)(3), even though the property owner possesses actual knowledge of the tax sale, because a defect in posting prevents adequate notice to the public. Ban.

Section 602(e)(3) does not provide a specific method of posting, merely stating that “[e]ach property scheduled for sale shall be posted at lease ten (10) days prior to the sale.” 72 P.S. § 5860.602(e)(3). Although a presumption of the regularity of the posting exists until the contrary appears, a property owner may create a contrary appearance and overcome this presumption by filing exceptions to the tax sale on the basis that the Law’s notice provisions were not strictly followed. Miller; Sortino.

The burden then shifts to the Bureau or to the purchaser to show that the Bureau strictly complied with the notice provisions of the Law. Miller; Sortino. “[T]he case law clearly establishes that the posting must be done in a manner reasonably calculated to provide notice to the public. The courts have required that the posting be conspicuous.” O’Brien, 889 A.2d at 128. “’Conspicuous’ means posting such that it will be seen by the property owner and the public generally. In re Sale of Real Estate by Montgomery County Tax Claim Bureau, 836 A.2d 1037 (Pa. Cmwlth. 2003).” Wiles v. Washington County Tax Claim Bureau, 972 A.2d 24, 28 (Pa. Cmwlth. 2009).

Based on the foregoing, it is clear that the trial court erred in concluding that the Bureau had sustained its burden of proof with respect to the posting requirements of Section 602(e)(3) of the Law. That portion of the testimony that was found credible by the trial court11 merely demonstrates that the witness from the tax office could not independently recall how the parcels of property had been posted, and that she relied upon the Bureau exhibits in testifying regarding the manner by which the parcels had been posted.

punitive damages - constitutional factors

Klein v. Weidner - ED Pa. - July 2, 2010

http://www.paed.uscourts.gov/documents/opinions/10D0644P.pdf


This case involved an award of punitive damages for defendant's violation of the Pennsylvania Uniform Fraudulent Transfer Act, 12 Pa. C.S. § 5101, et seq. Defendant fraudulently transfered monies from his corporation to himself and his wife, as tenants by the entireties, in an attempt to shield the money.


In awarding punitive damages, the Court had to consider the constitutional parameters of punitive damages awards. “The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003). To determine the constitutionality of a punitive damages award, courts consider: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” Id. at 418.


"The most important factor of these three is the reprehensibility element. Id. at 419. Analysis of reprehensibility for constitutional purposes requires a different test than the analysis required by Pennsylvania law. To determine degree of reprehensibility for constitutional purposes, courts must consider whether “the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.” Id. at 419. No single factor is dispositive. Id."

admin. law - local agency appeal - adequacy of record

Pittsburgh Water and Sewer v. Gladstone - Cmwlth. Court - June 23, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/382CD09_6-23-10.pdf


In a local agency appeal, the authority of the common pleas court to remand or hear a case de novo is tied to a finding that a complete record was not made before the local agency. Only if common pleas determined that the record before the agency was incomplete does it have discretion to determine the manner of correcting a deficient record. Ret. Bd. of Allegheny County v. Colville, 852 A.2d 445, 450 (Pa. Cmwlth 2004) appeal after remand at 888 A.2d 21 (Pa. Cmwlth. 2005), aff’d¸592 Pa. 433, 926 A.2d 424 (2007); The School District of the City of Erie v. Hamot Med. Center of the City of Erie, 602 A.2d 407, 408 (Pa. Cmwlth. 1992) (“It is clear from the language of Section 754 that the trial court is empowered to hear the case de novo only if it determines that the record before the local agency was incomplete.”).

The CCP here determined that it had committed an error of law pursuant to Section 754 of the AAL by failing to determine whether the record submitted by the Authority was a complete record before proceeding to a de novo hearing. 2 Pa. C.S. § 754 provides:

(a) INCOMPLETE RECORD.-- In the event a full and complete record of the proceedings before the local agency was not made, the court may hear the appeal de novo, or may remand the proceedings to the agency for the purpose of making a full and complete record or for further disposition in accordance with the order of the court.

(b) COMPLETE RECORD.-- In the event a full and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency. After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter B of Chapter 5 (relating to practice and procedure of local agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. § 706 (relating to disposition of appeals).

A review of the transcript here shows that common pleas proceeded to a hearing de novo after being advised by counsel for the Authority that this was the appropriate method of review of the agency determination It did so, however, without first independently reviewing the record to determine its completeness. We agree with the trial court that this procedure was not in accordance with Section 754 of the AAL.

The court did, however, make such a review post trial and determined the agency record to be inadequate. Moreover, at the de novo hearing both parties had the opportunity to submit documents into evidence and adduce testimony, thus compiling a complete record, and the trial court did not find that any error occurred during the course of that hearing. Therefore, the failure to make the determination required by Section 754 before proceeding de novo is entirely harmless, and we reverse the grant of a new trial.

-----------------

On the merits, concerning a very large water bill , the Authority sent an invoice to Appellants for water service at the Residence for the thirty-four day period of $12,627.18 based upon a purported consumption of 1,204,000 gallons of water. The meter reading history for water usage at the Residence for the twenty-three months prior to May 2007 indicated usage had not exceeded 10,000 gallons per month and often had not exceeded 5,000 gallons per month. The average monthly invoice amount, which reflected both actual meter readings and estimates, was less than fifty dollars. After a de novo hearing in the CCP, the court reduced the invoice to $42.98

housing - sec. 8 - criminal conviction

Belajac v. Allegheny Co. Housing Authority - Cmwlth. Court - June 30, 2010 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1319CD09_6-30-10.pdf


The court upheld the decision of ACHA to terminate the petitioner's sec. 8 benefits based on a criminal convictions involving sexual offenses against a minor child that had taken place six (6) years earlier.

The court said that "the Authority is permitted to terminate Section 8 assistance “[i]f the family violates any family obligations under the program.” 24 C.F.R § 982.552(c)(1)(i). The family obligation set forth in Section 982.551(l) of the HUD regulations provides: “The members of the household may not engage in . . . violent criminal activity or other criminal activity that threatens the health, safety, or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises.” 24 C.F.R. § 982.551(l).


The tenant had been involved in the Section 8 program since 1995. In November of 2002, tenant was arrested and charged with indecent assault, endangering the welfare of children, corruption of minors, and involuntary deviate sexual intercourse. The charges related to conduct involving a five-year-old female victim, which occurred August 3, 2002, at tenant's subsidized unit at the time. On advice of counsel, tenant pleaded guilty to indecent assault and corruption of minors on September 24, 2003, and, as a result, was required to register as a sex offender with the Pennsylvania State Police for a period of ten years. In 2005, Belajac moved to his current subsidized unit located. On August 25, 2008, the Authority sent notification that it intended to terminate his Section 8 assistance for violating his family obligations2 and for being a lifetime registered sex offender.


The criminal incident was not reported to the HA. It is not stated in the facts when the HA became aware of it.


All the circumstances -- At the termination hearing, tenant presented mitigating evidence that he suffered a severe head injury in 1991, resulting in diminished competency, memory loss, high frustration levels, and temperament problems. He also presented letters of support from citizens of his community, including the chief of police. Citing its decision in Housing Authority of York v. Dickerson, 715 A.2d 525 (Pa. Cmwlth. 1998), allocatur denied, 560 Pa. 676, 742 A.2d 172 (1999), the Court held that, althought he hearing officer had in fact considered the mitigating evidence, "consideration of all of the circumstances in each case is discretionary, not mandatory," noting that Dickerson had overruled the decision in Housing Authority of York v. Ismond, 700 A.2d 559 (Pa. Cmwlth. 1997), affirmed, 556 Pa. 436, 729 A.2d 70 (1999), where it had held that the PHA was required to consider the mitigating factors listed in then-existing Section 882.216(c)(2) of the HUD regulations, formerly 24 C.F.R. § 882.216(c)(2), before terminating Section 8 assistance.


Threat to safety - Despite the remoteness of tenant's conduct, the HA and court held that his "obligation to register as a sex offender was 'highly suggesti[ve]' that he 'threatens the safety of other residents and those in the immediate vicinity of the premises' due to the fact that the purpose of the registration requirement is the protection of the community. The hearing officer determined that the conviction was not prohibitively remote due to the fact that he had a continuing obligation to register as a sex offender until 2014. In addition, the hearing officer explained that the period of time between tenant's conviction and the Authority’s decision to terminate Section 8 assistance was due to tenant's failure to report the conviction to the Authority. The hearing officer stated, “[t]here is no evidence that the [Authority] had knowledge of the conviction at the time it occurred. . . . [T]he conviction was discovered during a background check, rather than through normal reporting requirements of the tenant.” This discussion addresses the question of why the HA acted to terminate sec. 8 assistance when it did.


Scope of review - The court held that the trial court, which had reviewed and reversed the HA decision to terminate sec. 8 assistance, had exceeded its powers and wrongly substituted its discretion for that of the HA. "In Allegheny County Housing Authority v. Liddell, 722 A.2d 750, 753 (Pa. Cmwlth. 1998), this Court discussed a court’s scope of review when reviewing local agency action that by law is committed to the agency’s discretion. We stated: [C]ourts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion, in the absence of bad faith, fraud, capricious action or abuse of power; they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution. It is true that the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions." That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion. Liddell, 722 A.2d at 753 (emphasis in original).

consumer - FDCPA - Rooker-Feldman doctrine - prior state court judgment

Rivera v. Ragan and Ragan - ED Pa. - June 25, 2010

http://www.paed.uscourts.gov/documents/opinions/10D0624P.pdf

Defendant, a debt collection law firm, got a state court judgment for its client against federal plaintiff. Plaintiff-consumer then sued the law firm in federal court, based on alleged improper collection efforts. Defendant moved to dismiss the federal case, alleging lack of jurisdiction based on Rooker-Feldman doctrine.

The Rooker-Feldman doctrine derives its name from two Supreme Court decisions, Rooker v. Fidelity Trust Comany, 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). “The Rooker-Feldman Doctrine bars federal jurisdiction under two circumstances: if the claim was ‘actually litigated’ in state court or if the claim is ‘inextricably intertwined’ with the state court adjudication.” ITT Corp. v. Intelnet Int’l Corp., 366 F.3d 205, 210 (3d Cir. 2004). In determining whether an issue was “actually litigated” by the state court, “a plaintiff must present its federal claims to the state court, and the state court must decide those claims.” Id. at 210 n.8 (citing Desi’s Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 419 (3d Cir. 2003)). Determining that a claim was “actually litigated” “requires that the state court has considered and decided precisely the same claim that the plaintiff has presented to the federal court.” Id.

The Rooker-Feldman doctrine has been narrowed by the Exxon Mobil decision, which held that it does not prevent a district court from exercising subject matter jurisdiction where a state court judgment exists, and a plaintiff brings an independent claim(s) from the state court action in federal court.

In Exxon Mobil Corporation v. Saudi Basic Industries Corporation, 544 U.S. 280 (2005), the Court observed that the Rooker-Feldman doctrine had “sometimes been construed to extend far beyond the contours of the Rooker and Feldman cases.” 544 U.S. at 283. The Court clarified that the scope of the doctrine is “confined” to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Id. at 284; accord Lance v. Dennis, 546 U.S. 459 (2006) (observing that the Court in Exxon Mobil explained that Rooker-Feldman is a “narrow doctrine”). The Court added: “[i]f a federal plaintiff ‘present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party[,] . . . then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.’” Exxon Mobil,544 U.S. at 293.

Here, Rivera does not challenge the judgment against him in state court, but rather, only claims that Ragan’s collection practices violated sections of the FDCPA. Thus, Rivera’s claims in the instant Complaint are independent of the state judgment that was rendered against him, and the Rooker-Feldman doctrine does not preclude subject matter jurisdiction. In support of this conclusion we have found at least seven post-Exxon Mobile cases that have considered the applicability of the Rooker-Feldman doctrine to circumstances similar to those in this case, ie., where creditors or debt collectors obtain a judgment in state court but have their collection practices challenged in federal court under the FDCPA.

UC - self-employment - attorney

Schneider v. UCBR - Cmwlth Court- June 18, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2238CD09_6-18-10.pdf

arbitration - one-sidedness; belated resort to arbitration

Nino v. The Jewelry Exchange - 3d Cir. - June 15, 2010

http://www.ca3.uscourts.gov/opinarch/091268p.pdf

Rajae Nino brought this action against his former employer, alleging that he was discriminated against on account of his gender and national origin. After litigating the matter before the District Court for fifteen months, the employer invoked an arbitration provision in Nino’s employment contract and moved the District Court to compel the parties to arbitrate their dispute.

Nino opposed the motion, arguing (1) that the arbitration agreement was unconscionable and, therefore, unenforceable, and (2) that by engaging in extensive litigation of this dispute, the employer had waived its right to compel arbitration.

The District Court concluded that although the arbitration agreement contained unconscionable terms, those provisions could be severed from the contract and the remainder of its terms could be enforced. The Court then concluded that the employer did not, through its litigation conduct, waive its right to compel arbitration. We disagree.

In our view, the pervasively one-sided nature of the arbitration agreement’s terms demonstrates that the employer did not seek to use arbitration as a legitimate means for dispute resolution. Instead, the employer created a system that was designed to give it an unfair advantage through rules that impermissibly restricted employees’ access to arbitration and that gave the employer an undue influence over the selection of the arbitrator.

We hold that it is not appropriate, in the face of such pervasive one-sidedness, to sever the unconscionable provisions from the remainder of the arbitration agreement. We further conclude that the employer, by engaging in protracted litigation of this matter before belatedly seeking to arbitrate its dispute, waived its right to compel arbitration. We will thus reverse the District Court’s order compelling the parties to arbitrate.

attorney fees - EAJA - offset - indiv. debt owed to government

Astrue v. Ratliff - US Supreme Court - June 14, 2010 - http://www.supremecourt.gov/opinions/09pdf/08-1322.pdf

SUPREME COURT OF THE UNITED STATES

Syllabus

ASTRUE, COMMISSIONER OF SOCIAL SECURITY v. RATLIFF

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 08–1322. Argued February 22, 2010—Decided June 14, 2010

Respondent Ratliff was Ruby Kills Ree’s attorney in Ree’s successful suit against the United States Social Security Administration for Social Security benefits. The District Court granted Ree’s unopposed motion for attorney’s fees under the Equal Access to Justice Act(EAJA), which provides, inter alia, that "a court shall award to a prevailing party . . . fees and other expenses . . . in any civil action . . . brought by or against the United States." 28 U. S. C. §2412(d)(1)(A).Before paying the fees award, the Government discovered that Ree owed the United States a debt that predated the award. Accordingly,it sought an administrative offset against the award under 31 U. S. C. §3716, which subjects to offset all "funds payable by the United States," §3701(a)(1), to an individual who owes certain delinquent federal debts, see §3701(b), unless, e.g., payment is exempted by statute or regulation. See, e.g., §3716(e)(2). The parties to this case have not established that any such exemption applies to §2412(d) fees awards, which, as of 2005, are covered by the TreasuryDepartment’s Offset Program (TOP). After the Government notified Ree that it would apply TOP to offset her fees award against a portion of her debt, Ratliff intervened, challenging the offset on thegrounds that §2412(d) fees belong to a litigant’s attorney and thusmay not be used to satisfy the litigant’s federal debts. The District Court held that because §2412(d) directs that fees be awarded to the "prevailing party," not to her attorney, Ratliff lacked standing to challenge the offset. The Eighth Circuit reversed, holding that under its precedent, EAJA attorney’s fees are awarded to prevailing parties’ attorneys.

Held:

A §2412(d)(1)(A) attorney’s fees award is payable to the litigant and is therefore subject to an offset to satisfy the litigant’s preexisting debt to the Government. Pp. 3–11.

(a) Nothing in EAJA contradicts this Court’s longstanding view that the term "prevailing party" in attorney’s fees statutes is a "term of art" that refers to the prevailing litigant. See, e.g., Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 603. That the term has its usual meaning in subsection (d)(1)(A) is underscored by the fact that subsection (d)(1)(B) and other provisions clearly distinguish the party who receives the fees award (the litigant) from the attorney who performed the work that generated the fees. The Court disagrees with Ratliff’s assertion that subsection (d)(1)(A)’s use of the verb "award" nonetheless renders §2412(d) fees payable directly to a prevailingparty’s attorney. The dictionaries show that, in the litigation context, the transitive verb "award" has the settled meaning of giving or assigning by judicial decree. Its plain meaning in subsection (d)(1)(A) is thus that the court shall "give or assign by . . . judicial determination" to the "prevailing party" (here, Ree) attorney’s fees in theamount sought and substantiated under, inter alia, subsection (d)(1)(B). That the prevailing party’s attorney may have a beneficial interest or a contractual right in the fees does not alter this conclusion. Pp. 3–6.

(b) The Court rejects Ratliff’s argument that other EAJA provisions, combined with the Social Security Act (SSA) and the Government’s practice of paying some EAJA fees awards directly to attorneys in Social Security cases, render §2412(d) at least ambiguous onthe question presented here, and that these other provisions resolvethe ambiguity in her favor. Even accepting that §2412(d) is ambiguous¸ the provisions and practices Ratliff identifies do not alter theCourt’s conclusion. Subsection (d)(1)(B) and other provisions differentiate between attorneys and prevailing parties, and treat attorneys on par with other service providers, in a manner that forecloses the conclusion that attorneys have a right to direct payment of subsection (d)(1)(A) awards. Nor is the necessity of such payments established by the SSA provisions on which Ratliff relies. That SSA fees awards are payable directly to a prevailing claimant’s attorney, see 42 U. S. C. §406(b)(1)(A), undermines Ratliff’s case by showing that Congress knows how to create a direct fee requirement where it desires to do so. Given the stark contrast between the language of the SSA and EAJA provisions, the Court is reluctant to interpret subsection (d)(1)(A) to contain a direct fee requirement absent clear textual evidence that such a requirement applies. Such evidence is not supplied by a 1985 EAJA amendment requiring that, "where the claimant’s attorney receives fees for the same work under both [42 U. S. C. §406(b) and 28 U. S. C. §2412(d)], the . . . attorney [must] refun[d] to the claimant the amount of the smaller fee." See note following§2412. Ratliff’s argument that this recognition that an attorney willsometimes "receiv[e]" §2412(d) fees suggests that subsection (d)(1)(A) should be construed to incorporate the same direct payments to attorneys that the SSA expressly authorizes gives more weight to "recei[pt]" than the term can bear: The ensuing reference to the attorney’s obligation to "refund" the smaller fee to the claimant demonstrates that the award belongs to the claimant in the firstplace. Moreover, Ratliff’s reading is irreconcilable with the textual differences between the two Acts. The fact that the Government, until 2006, frequently paid EAJA fees awards directly to attorneys inSSA cases in which the prevailing party had assigned the attorney her rights in the award does not alter the Court’s interpretation of the Act’s fees provision. That some such cases involved a prevailing party with outstanding federal debts is unsurprising, given that it was not until 2005 that the TOP was modified to require offsets against attorney’s fees awards. And as Ratliff admits, the Government has since discontinued the direct payment practice except in cases where the plaintiff does not owe a federal debt and has assigned her right to fees to the attorney. Finally, the Court’s conclusion is buttressed by cases interpreting and applying 42 U. S. C. §1988, which contains language virtually identical to §2412(d)(1)(A)’s.See, e.g., Evans v. Jeff D., 475 U. S. 717, 730−732, and n. 19. Pp. 6–

11. 540 F. 3d 800, reversed and remanded.

THOMAS, J., delivered the opinion for a unanimous Court. SO-

TOMAYOR, J., filed a concurring opinion, in which STEVENS and GINSBURG, JJ., joined.

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contracts - parol evidence - fraud in the inducement - no contract

Kropa v. Cabot Oil and Gas Corporation - MD Pa. - June 9, 2010

http://www.pamd.uscourts.gov/opinions/munley/08v551a.pdf

Defendant's motion to dismiss denied on Plaintiffs’ fraudulent inducement claim concerning and oil/gas lease. Plaintiffs contend that defendant’s agents assured them that the company would never pay more than $25.00 per acre. They relied on this statement and signed the lease, only to discover later that these statements were false and that others had signed far more lucrative deals with defendant. Defendant also represented to plaintiffs that if they failed to sign a lease defendant would negotiate leases with neighbors and capture the gas under plaintiffs’ land through the rule of capture, leaving plaintiffs without a lease or gas on their land. According to the complaint, these statements all were false and all induced plaintiff to sign the lease.

The parol evidence rule is a doctrine of contract interpretation. The rule works “‘to preserve the integrity of written agreements by refusing to permit the contracting parties to attempt to alter the import of their contract through the use of contemporaneous [or prior] oral declarations.’” Hamilton Bank v. Rulnick, 136 (Pa. Super. Ct. 1984) (quoting LaDonne v. Kessler, 389 A.2d 1123, 1126 (Pa. Super. Ct. 1978)).

As defined in Pennsylvania, the parol evidence rule provides that: Where parties, without fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract, . . . and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence. Mellon Bank Corp. v. First Union Real Estate Equity & Mortg. Inv., 951 F.2d 1399, 1405 (3d Cir. 1991) (quoting Gianni v. Russel & Co., 126 A. 791 (Pa. 1924)).

Thus, for the parol evidence rule to apply, a court must answer three questions: “(1) Have the parties made a contract? (2) Is that contract void or voidable because of illegality, fraud, mistake, or any other reason? (3) Did the parties assent to a particular writing as the complete and accurate ‘integration’ of that contract.” CORBIN ON CONTRACTS § 573. If the answer to any of these questions is “no,” then the rule does not apply. Id.

As the Third Circuit Court of Appeals has pointed out, “‘no contract, no parol evidence rule.’” Mellon, 951 F.2d at 1408. The court will deny the motion for reconsideration on these grounds.

The defendant’s argument that the court found the written agreement between the parties to be fully integrated is only a part of the inquiry into whether the parol evidence rule should apply, and it is not material to the issue of whether a contract actually exists between the parties.

The purpose of the parol evidence rule is to give meaning to the writings of parties who sign valid contracts. Here, the plaintiff alleges that no valid contract exits, because the defendant induced plaintiff to sign the contract through fraud. Plaintiff does not ask the court to interpret the terms of the contract between the parties by using oral or written evidence outside that document, but instead asks the court to find that no contract existed between the parties because of fraud in the inducement. “[E]vidence of fraud in the inducement will suspend the parol evidence rule because fraud prevents formation of a valid contract.” Mellon, 951 F.2d at 1408; see also, CORBIN ON CONTRACTS § 580 (noting that “fraud in the inducement of assent, or an antecedent mistake by one known to the other, may make the contract voidable without preventing its existence, and without showing that the writing was not agreed on as a complete integration of its terms.”). The parol evidence rule does not prevent an inquiry into the existence of a contract itself.

welfare - GA - disability - proof

Marshall v. DPW - June 7, 2010 - Cmwlth. Court - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1835CD09_6-7-10.pdf


Applicant did not provide proof of his alleged physical disability. An applicant seeking GA benefits based on a physical disability must provide documentation verifying a disability precluding gainful employment. 55 Pa. Code §141.61(c)(1)(iii)(A). This documentation must be on a form provided by DPW and completed by a physician or a psychologist. 55 Pa. Code §141.61(c)(1)(iii)(B); see 62 P.S. §432(3)(i)(C) (“The verification of the [applicant’s] physical … disability must be established by written documentation in a form prescribed by [DPW] and must be based on acceptable clinical and laboratory diagnostic techniques, rather than a statement of symptoms by the applicant….”).

Here, Marshall’s physician completed and signed two Form PA 1663s, each of which indicated that Marshall was not disabled at the time of his application for benefits. In fact, the most recent form, dated January 13, 2009, indicated that Marshall was presently employable.

The applicant got a fair hearing. His inability to present witnesses on his behalf resulted from his own failure to subpoena them. An applicant for GA benefits has the right to appeal DPW’s determination and to receive a fair hearing. See 55 Pa. Code §275.1(a). During the hearing, the applicant shall have the opportunity “[t]o present evidence on his own behalf, to bring witnesses or documents he deems necessary, and to confront and cross-examine witnesses the county office, administering agency or social service provider will produce to support its decision or action.” 55 Pa. Code §275.3(a)(1). The applicant also has the right “[t]o request a subpoena from the hearing officer for the production of evidence or witnesses that [the applicant] feels will be essential in obtaining necessary facts.” 55 Pa. Code § 275.3(a)(2).

Here, Marshall failed to request subpoenas for any witnesses he wished to call on his behalf and failed to make arrangements for any such individuals to testify. (N.T., 2/17/09, at 9.) DPW is not obligated to secure witnesses or evidence for an applicant to present at the hearing. See Integrated Behavioral Health Services v. Department of Public Welfare, 871 A.2d 296, 300 (Pa. Cmwlth. 2005).

__._,_.___

UC - voluntary quit - working conditions, health reasons

Astolfi v. UCBR - Cmwlth. Court - May 27, 2010 (2-1 decision)


http://www.pacourts.us/OpPosting/Cwealth/out/1866CD09_5-27-10.pdf


The court reversed a UCBR decision in favor of the claimant, ruling "[c]oncluding that the facts, as found, do not support the Board’s conclusion that Claimant resigned from her job for necessitous and compelling reasons." It found that her work situation was "uncomfortable but not intolerable," and that a quit for health reasons was negated by claimant's failure to mention those reasons to her employer.


Claimant testified that a chaotic work environment caused her to develop high blood pressure and to incur bouts with hives. Claimant testified that two doctors had advised her to resign from her job. In support, she introduced a note from her psychiatrist stating that Claimant “expressed to me severe stress from the conditions at her work.” Claimant also offered a note from her chiropractor opining that Claimant’s headaches “were likely associated with clenching of the jaw and cervical spine dysfunction.” Dr. Kelly observed that clenching of the teeth is a “direct response to stress,” and that Claimant had complained of work stress on several occasions. Dr. Kelly wrote that she had “seen a difference in [Claimant’s] health since she left her job.”


Claimant believed her resignation was medically necessary, and reiterated at a remand hearing that two doctors had advised her to resign. Claimant offered a follow-up letter from her chiropractor stating that "I had asked [Claimant] on several occasions if it would be possible for her to leave her job due to medical reasons. Her current occupation was adversely affecting her health and I felt that it was necessary for her to leave her job if she was going to improve. Her health was declining largely due to the ongoing stress at her work place." At the remand hearing, the employer, a dentist, disputed Claimant’s characterization of the work atmosphere and the events leading up to Claimant’s resignation.


The Board reversed the Referee’s denial of benefits and granted Claimant’s claim for benefits. Acknowledging that verbal reprimands do not justify a voluntary quit, the Board also observed that this is not the case for verbal abuse. The Board credited Claimant’s testimony that she was “verbally abused” by the employer and found, further, that Claimant took reasonable steps to preserve her employment by presenting her concerns to the employer.


The court found, as a matter of law, that claimant had not shown a necessitous and compelling reason to quit her job. Whether a claimant had cause of a necessitous and compelling nature for leaving work is a question of law subject to this Court’s review. Wasko v. UCBR, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). Based upon the record before us, we cannot say that Claimant’s work environment was intolerable or that a reasonable person would have acted in the same manner.

Our case law distinguishes normal workplace strains from pressures extreme enough to justify a resignation. As we have explained: Resentment of a reprimand, absent unjust accusations, profane language or abusive conduct …; mere disappointment with wages …; and personality conflicts, absent an intolerable working atmosphere … do not amount to necessitous and compelling causes. Lynn v. UCBR, 427 A.2d 736, 737 (Pa. Cmwlth. 1981).

Claimant was not publicly reprimanded or accused of being a criminal like her counterpart in First Federal. She was not subjected to the kinds of intolerable abusive language experienced by successful claimants in other voluntary quit cases. Claimant’s testimony demonstrated “resentment” and “personality conflicts,” Lynn, 427 A.2d at 737, but not an intolerable work environment. Being “yelled” at for talking too much to patients, which is the worst Claimant suffered, is not comparable to being called names or being unjustly accused of criminal conduct. Her work environment was uncomfortable, but not intolerable.

The majority rejected the dissent's emphasis on the fact that Claimant was advised by her chiropractor to quit her job, stating that a reasonable person suffering from rashes, headaches and high blood pressure caused by circumstances at work would feel compelled to terminate her employment. The majority said that this was "beside the point, since Claimant did not establish the elements necessary to have a compelling medical reason to quit.

Pigeon-holing claimant's argument as one relying solely on health reasons, the majority said that to establish health problems as a compelling reason to quit, the claimant must (1) offer competent testimony that adequate health reasons existed to justify the voluntary termination, (2) have informed the employer of the health problems and (3) be available to work if reasonable accommodations can be made. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982). Failure to meet any one of these conditions bars a claim for unemployment compensation….Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695, 698 (Pa. Cmwlth. 1994) (emphasis added) (citation omitted). Claimant met with the employer to discuss the tension between her coworkers, but she never informed the employer of any health problems or that her chiropractor had advised her to quit. Absent such evidence, Claimant’s alleged health problems are simply not relevant.

Dissent

Here, Employer’s verbal abuse produced pressure on Claimant that was both real and substantial. Indeed, the pressure caused Claimant to suffer from rashes, headaches and high blood pressure. Moreover, any reasonable person suffering such physical maladies as a result of circumstances at work would be compelled to terminate her employment. In fact, Claimant’s physician advised Claimant to do just that. To the extent Employer’s verbal assaults on Claimant were due to personality conflicts, given their effect on Claimant’s health, they were intolerable. A claimant should not be required to continue to endure a work environment that causes such afflictions as rashes, headaches and high blood pressure.

The majority states, “We cannot say on this record that Claimant’s work environment was intolerable or that a reasonable person would have acted in the same manner.” In other words, the majority concludes that: (1) Claimant should continue to tolerate the rashes, headaches and high blood pressure caused by Employer’s insults and yelling; and (2) Claimant’s physician is not a reasonable person for suggesting that Claimant quit her job for the sake of her health. I cannot agree with these conclusions.

The majority also suggests that, pursuant to case law, verbal abuse cannot be a necessitous and compelling reason to leave employment unless it is public, racial or sexual in nature. (Majority op. at 6-7.) However, abusive conduct of any kind is always a necessitous and compelling reason for leaving employment. First Federal Savings Bank v. UCBR, 957 A.2d 811 (Pa. Cmwlth. 2008) (stating that a claimant need not indefinitely subject herself to abusive conduct). Moreover, whether an employer’s conduct is abusive is a question of fact, and the majority acknowledges that the “Board credited Claimant’s testimony that she was ‘verbally abused’ by [Employer].”

Accordingly, I would affirm.

consumer - RESPA - perpetrator of Ponzi scheme is not a "loan servicer"

Jones v. ABN AMRO Mortgage Group, et al. - 3d Circuit - May 25, 2010


http://www.ca3.uscourts.gov/opinarch/082353p.pdf

Douglas and Andrea Jones (the “Joneses”) filed suit against, inter alia, Appellees SunTrust Mortgage, Inc. and Countrywide Home Loans, Inc., who were the “lenders” that provided mortgage loans to the Joneses. The Joneses asserted claims for a declaratory judgment, negligence, and violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605. At the heart of the issue before us is a mortgage loan-servicing Ponzi scheme. Of particular interest is whether the perpetrator of the Ponzi scheme can be considered a loan “servicer” under RESPA. The District Court dismissed the Joneses’ Complaint. We will affirm.

abuse - expungement - founded report - no right to appeal hearing

D.D. v. DPW - Cmwlth Court - May 21, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1454CD09_5-21-10.pdf


There is no right to appeal from a founded report, based on court adjudication of dependency and abuse in another, independent case.


Unlike the case of an indicated report of abuse, there is no similar provision affording a perpetrator named in a founded report the right to an administrative hearing following the Secretary’s denial of his or her expunction request. K.R. v. Dep’t of Pub. Welfare, 950 A.2d 1069 (Pa. Cmwlth. 2008) (citing J.G. v. Dep’t of Pub. Welfare, 795 A.2d 1089 (Pa. Cmwlth. 2002)).


A founded report is based on a judicial adjudication wherein the government alleging child abuse by the perpetrator met its burden of proving it. C.S. v. Dep’t of Pub. Welfare, 879 A.2d 1274 (Pa. Cmwlth. 2005) . In an expunction request by an individual named as a perpetrator in a founded report, the Secretary may rely on the trial court’s findings of abuse in the underlying judicial adjudication to dismiss the expunction request where the judicial adjudication also named the individual as the perpetrator of the abuse. C.J. v. Dep’t of Pub. Welfare, 960 A.2d 494 (Pa. Cmwlth. 2008) (citing K.R.) An administrative hearing following denial of the expunction request is not mandated because the named perpetrator had a full and fair opportunity to defend against the allegations in the underlying judicial adjudication. Id. That individual cannot thereafter collaterally attack the trial court’s dependency and abuse findings in an expunction request under the CPSL. Id.

UC - voluntary quit - abusive conduct, cursing by employer

Karpowich v. UCBR - Cmwlth Court - May 19, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/2242CD09_5-19-10.pdf


Grant of benefits upheld for claimant whose employer cursed at him on numerous occasions.


An employee who is subject to unjust accusations, abusive conduct or profanity at the workplace has adequate justification to terminate employment and avoid disqualification provided notice of the conduct has been given to the employer. Moskovitz v. UCBR, 635 A.2d 723 (Pa. Comwlth. 1993), citing Forty v. UCBR, 447 A.2d 1078 (Pa. Cmwlth. 1982); Willet v. UCBR, 429 A.2d 1282 (Pa. Cmwlth. 1981). If the employer is already aware of the problem, notice may not be required. Danner v. UCBR, 443 A.2d 1211 (Pa. Comwlth. 1982).

UC - admission into ARD not willful misconduct

Bruce v. UCBR - Cmwlth Court - May 19, 2010 (2-1)

http://www.pacourts.us/OpPosting/Cwealth/out/2227CD09_8-9-10.pdf

Claimant was found ineligible for violating the employer's no call/no show policy, relating to her failure to call because of an arrest, in which she subsequently was admitted to an ARD program.



In order to determine whether her incarceration constituted good cause for not calling in, the Board looked at whether Claimant’s incarceration was through no fault of her own. The Board conceded that, if on remand, Claimant had put forth evidence that “she had been acquitted of the charges,” Claimant’s incarceration, and her subsequent inability to call off from work, would have resulted through no fault of her own, and, as such, “benefits could not be denied” because her failure to call off would constitute good cause. Still, it found that she had committed willful misconduct, in spite of the ARD disposition.


But in the course of the court opinion, it stated that: " Where a claimant is discharged for a criminal act, such as theft, the subsequent acceptance into an ARD program is insufficient proof of willful misconduct. UCBR v. Vereen, 370 A.2d 1228, 1231 (Pa. Cmwlth. 1977)."


Dissent
The dissent argued that the "question is whether Claimant’s incarceration constitutes good cause for her failing to call off work. As the majority states, the Board concedes that, if Claimant had been acquitted of the charges, the Board would have found that her incarceration was through no fault of her own and would have concluded thatClaimant had good cause for violating Employer’s policy and could not be denied benefits. However, because Claimant entered into the ARD program, the Board found that Claimant’s incarceration was her own fault, i.e., that Claimant was guilty of the charges against her. In my view, the Board’s finding lacks support in the law governing ARD and cannot stand.


Because the Board has conceded that Claimant would be entitled to benefits had she been acquitted, because the Rules governing ARD provide that its successful completion results in the dismissal of charges, because the courts have recognized that entrance into the ARD program is not necessarily a confession of guilt and because the courts have likened ARD to acquittal, I would reverse.