UC - failure of both parties to appear

R.E.G. Investment Properties v. UCBR - unreported - March 8, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/1685CD10_3-8-11.pdf - unreported case

UCSC determination that claimant was employee and not indpt. contractor upheld on appeal, where neither party appeared at hearing and referee made decision based on documents.

There is a presumption that one who performs services for wages is an employee and not an independent contractor.

This presumption can be overcome if an employer sustains its burden in proving that a claimant was (a) free from control and direction in the performance of the work, where the ability to control and not actual control is determinative; and (b) as to such services, [claimant] was customarily engaged in an independent trade or business. Schneider v. Unemployment Comp. Bd. of Review, ____ A.3d ____ (Pa. Cmwlth. No.
2238 C.D. 2009, filed June 18, 2010), slip op. at 2 (citation and quotation marks omitted) (emphasis added).

In addition, “[i]f a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records.” 34 Pa. Code § 101.51.

UC - indpt. contractor v. employee - presumption

http://www.pacourts.us/OpPosting/Cwealth/out/1685CD10_3-8-11.pdf - unreported case - March 2011


UCSC determination that claimant was employee and not indpt. contractor upheld on appeal, where neither party appeared at hearing and referee made decision based on documents.


There is a presumption that one who performs services for wages is an employee and not an independent contractor.

This presumption can be overcome if an employer sustains its burden in proving that a claimant was (a) free from control and direction in the performance of the work, where the ability to control and not actual control is determinative; and (b) as to such services, [claimant] was customarily engaged in an independent trade or business. Schneider v. Unemployment Comp. Bd. of Review, ____ A.3d ____ (Pa. Cmwlth. No.
2238 C.D. 2009, filed June 18, 2010), slip op. at 2 (citation and quotation marks omitted) (emphasis added).


In addition, “[i]f a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records.” 34 Pa. Code § 101.51.

UC - voluntary quit - retirement package - likelihood of layoff

Wright-Swygert v. UCBR - March 3, 2011 - Cmwlth. Court

http://www.pacourts.us/OpPosting/Cwealth/out/930CD10_3-3-11.pdf


In this case, the circumstances surrounding Claimant leaving her employment gave her the reasonable belief that she was going to be laid off; were as if she had been specifically told that she was going to lose her job; and were of a necessitous and compelling nature to accept the volutary early retirement package (VERP) and leave her employment.

First, Claimant alone was called into the Director’s office on two different occasions just weeks before the deadline for accepting the VERP. Each time was at the behest of the senior director telling the Director to speak to Claimant and question her as to whether she was going to accept the VERP. The discussion was a one-on-one discussion, not a general letter to all employees of the company, letting Claimant know that she should seriously consider accepting the VERP.

At the second meeting, when Claimant asked the Director if her job was going to be eliminated, he said “It doesn’t look good.” Claimant further testified regarding the Director: Claimant: ….. [H]e felt bad that he had to talk to me. He said…I didn’t feel comfortable talking to you about it. But the senior director said talk to her now. He then went on to give her the name of his financial person. Under those circumstances, Claimant was justified in believing that her layoff was likely to materialize and that her job was imminently threatened .


In determining whether a necessitous and compelling cause exists in the context of corporate downsizing, this Court in Renda v. UCBR, 837 A.2d 685 (Pa. Cmwlth. 2003), held that the relevant inquiry is whether “the circumstances surrounding a claimant’s voluntary quit indicated a likelihood that fear about the employee’s employment would materialize, that serious impending threats to her job would be realized, and that her belief her job is imminently threatened is well-founded.” Id., 837 A.2d at 692. Citing Staub v. UCBR, 673 A.2d 434, 437 (Pa. Cmwlth. 1996), we went on to state:

“[S]peculation pertaining to an employer’s financial condition and future layoffs, however disconcerting, does not establish the requisite necessitous and compelling cause.” Staub, 673 A.2d at 437.4 [W]here at the time of retirement suitable continuing work is available, the employer states that a layoff is possible but not likely, and no other factors are found … that remove an employee’s beliefs from the realm of speculation, a claim for unemployment benefits fails despite the offer to leave. Id.

____________________________

n.4 - We stated in Renda: [T]his court denied benefits where a claimant’s speculative concerns over future employment prompted her voluntary termination. Mansberg v. UCBR, 829 A.2d 1266 (Pa. Cmwlth. 2003) (claimant voluntarily quit despite employer’s statement that lost jobs would be “filtered” to other sections of company); PECO Energy Co. v. UCBR, 682 A.2d 49 (Pa. Cmwlth. 1996) (claimant accepted early retirement package based on “postulations” of “what he felt could happen”); Staub (claimant accepted early retirement incentive based on his belief that employer’s “poor financial condition” would result in layoff); Dep’t of Navy v. UCBR,650 A.2d 1138 (Pa. Cmwlth 1994) (claimant “believed” his job would be eliminated); Peoples First Nat’l Bank v. UCBR, 632 A.2d 1014 (Pa. Cmwlth. 1993) (employer indicated a layoff was “possible,” but employer “didn’t think so”); Flannery v. UCBR, 557 A.2d 52 (Pa. Cmwlth. 1989) (claimant accepted advanced retirement package based on his belief layoff was “inevitable,” despite availability of continuing work). Renda, 837 A.2d at 692. In both Renda and Staub, the Referees found that the employers made continuing work available to the claimants.

__._,_.___

disability - hypothetical - all limitations - RFC assessment - sec. 1

Smith v. Commissioner - November 2010 (publication just ordered)


http://www.ca3.uscourts.gov/opinarch/092983p.pdf


Smith‘s main argument is that the hypothetical question did not sufficiently include [the physicians'] conclusions that Smith was moderately limited in the various areas that they noted in Section I of the Mental Residual Functional Capacity Assessment.

As the Social Security Administration‘s guidelines . . . explain, however, Section I is merely a worksheet to aid in deciding the presence and degree of functional limitations and the adequacy of documentation and does not constitute the RFC assessment.‖ POMS DI 24510.060, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510060 (emphasis added). Numerous district courts in this circuit have recognized this point and held that Section I of the form may be assigned little or no weight. See Molloy v. Astrue, No. 08-4801, 2010 WL 421090, at *11 (D.N.J. Feb. 1, 2010). . . Liggett v. Astrue, No. 08-1913, 2009 WL 189934, at *8 (E.D. Pa. Jan. 27, 2009). . . Torres v. Comm’r of Soc. Sec., No. 07-1951, 2008 WL 5244384, at *12 (D.N.J. Dec. 15, 2008)

Therefore, the ALJ's hypothetical accurately reflected [the doctors‘] opinion of Plaintiff‘s condition.‖ (citation omitted)). The District Court also understood this point. See Smith v. Astrue, No. 08 Civ. 2875, 2009 WL 1372536, at *5 (D.N.J. May 15, 2009)

Because Smith cannot rely on the worksheet component of the Mental Residual Functional Capacity Assessment to contend that the hypothetical question was deficient, his argument is without merit.

admin. law - standard of proof - appellate review

LT Beauty School v. State Board of Cosmetology - Cmwlth. Court- January 28, 2011


http://www.pacourts.us/OpPosting/Cwealth/out/926CD10_1-28-11.pdf


As the factfinder, the Board is responsible for making determinations of credibility and may accept or reject the testimony of any witness in whole or in part. See Peak v. UCBR, 509 Pa. 267, 501 A.2d 1383 (1985). However, as the burdened party, the Board must meet both: (1) its burden of production, i.e., present sufficient evidence; and (2) its burden of persuasion, i.e., present credible evidence. Kirkwood v. UCBR, 525 A.2d 841, 844 (Pa. Cmwlth. 1987). The question of whether the Board’s evidence is sufficient is wholly a question of law. Id. [emphasis in original]

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“The degree of proof required to establish a case before an administrative tribunal is the same degree of proof used in most civil proceedings, i.e., a preponderance of the evidence.” Samuel J. Lansberry Inc. v. PUC, 578 A.2d 600, 602 (Pa. Cmwlth 1990).

atty. fees - federal court - 28 USC 1927 - multiplication of proceedings through unreasonable and vexatious actions

Squires Golf Club v. Bank of America - January 13, 2011 - ED Pa.


http://www.paed.uscourts.gov/documents/opinions/11D0034P.pdf


The court granted the Bank costs, expenses and attorneys’ fees pursuant to 28 U.S.C. § 1927, which provides: “Any attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

Although imposition of fees under § 1927 requires a showing of bad faith, this showing may be made by implication “‘[w]hen a claim is advocated despite the fact that it is patently frivolous or where a litigant continues to pursue a claim in the face of an irrebuttable defense[.]’” Cameron’s Hardware, Inc. v. Independence Blue Cross, No. 08-15, 2008 WL 2944697, at *5 (E.D. Pa. July 28, 2008), quoting Loftus v. Southeastern Pa. Transp. Auth., 8 F. Supp. 2d 458, 461 (E.D. Pa. 1998), aff’d 187 F. 3d 626 (3d Cir. 1999), cert. denied 528 U.S. 147 (1999).

Bad faith may also be shown “through ‘the intentional advancement of a baseless contention that is made for an ulterior purpose, e.g., harassment or delay.’” Id., quoting Ford v. Temple Hosp., 790 F.2d 342, 347 (3d Cir. 1986).

Commonwealth Court - citing unreported cases

As of January 1, 2011, "Parties may. . . cite an unreported . . . panel decision of this court issued after January 15, 2008, for its persuasive value, but not as binding precedent."

210 Pa. Code § 67.55 http://www.pabulletin.com/secure/data/vol40/40-45/2096.html

You can find summaries of many such unreported decision in the PLAN Legal Updates http://planupdate.blogspot.com/. There is no password required to access the Updates, which are searchable and go back about 5 years.

appeals - nunc pro tunc - pleading of and findings about reasons required

Williams v. Housing Authority - Cmwlth. Court - January 4, 2011 - unreported


http://www.pacourts.us/OpPosting/Cwealth/out/1040CD10_1-4-11.pdf


Commonwealth Court remanded the case to the trial court, which had granted the public housing applicant's petition to appeal nunc pro tunc, because the "record is devoid of any statement whatsoever as to why the underlying appeal was not timely filed. [Applicant's] application for leave to file an appeal nunc pro tunc did not offer a reason for her failure to file a timely appeal, and the trial court’s opinions did not address the issue. The only stated reason for the trial court’s grant of Williams’ request to appeal nunc pro tunc is that the Authority failed to oppose [applicant's] motion. Any failure to oppose a motion, however, is not sufficient to confer appellate jurisdiction where none exists.

Without a determination as to existence of fraud or a breakdown of adjudicatory operations, and without a finding as to some other extraordinary circumstance, the granting of the right to appeal nunc pro tunc was premature. The trial court’s order is, therefore, vacated, and the matter is remanded for a proper determination as to whether the trial court can grant the the right to appeal nunc pro tunc.

As a general rule, an appeal nunc pro tunc will be granted in civil cases only where the appeal was untimely filed due to fraud or a breakdown in the court’s operations. However, that standard has been relaxed where a litigant’s right to appeal has been lost due to ‘extraordinary circumstances.’ Each case, however, is limited to the unique and compelling factual circumstances of that particular case.

The courts of this Commonwealth have addressed the issue of whether extraordinary circumstances existed such that allowance of an appeal nunc pro tunc was appropriate on numerous occasions. See [Commonwealth v. Stock, 545 Pa. 13, 679 A.2d 760 (1996)] (appeal nunc pro tunc was appropriate in criminal context where litigant requested attorney to file appeal; however, attorney failed to file timely appeal); Cook v. UCBR, 543 Pa. 381, 671 A.2d 1130 (1996) (appeal nunc pro tunc was appropriate where hospitalization of litigant during the running of the appeals period resulted in the non-negligent late filing of appeal); Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979) (appeal nunc pro tunc was appropriate to avoid a litigant’s loss of her day in court where the failure of a litigant’s attorney to file a timely appeal was non-negligent and the delay was minimal); [Walker v. UCBR, 461 A.2d 346 (Pa. Cmwlth. 1983)] (appeal nunc pro tunc was appropriate where post office failed to forward referee’s decision resulting in untimely filing of appeal). While the holdings in those cases expand the general rule for granting an appeal nunc pro tunc, implicit in each of those holdings is a finding that the litigant himself did not act in a negligent manner. Puckett v. PennDOT, 804 A.2d 140, 143 (Pa. Cmwlth. 2002).

What is clear, then, is that where a court is asked to make a determination as to whether to grant a litigant the right to file an untimely appeal nunc pro tunc, the finding that such untimeliness is the result of some fraud, a breakdown in adjudicatory operations or some other extraordinary circumstance is, in fact, a jurisdictional prerequisite to the granting of the right to appeal nunc pro tunc.

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N.B. As of January 1, 2011, "Parties may. . . cite an unreported . . . panel decision of this court issued after January 15, 2008, for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. http://www.pabulletin.com/secure/data/vol40/40-45/2096.html

You can find summaries of many such unreported decision in the PLAN Legal Updates http://planupdate.blogspot.com/. There is no password required to access the Updates, which are searchable.

bankruptcy - discrimination in hiring - private employer

Rea v. Federated Investors - 3d Cir. - December 16, 2010

http://www.ca3.uscourts.gov/opinarch/101440p.pdf

"In accordance with the majority of other courts to have addressed the issue," the Court held that that 11 U.S.C. § 525(b) does not create a cause of action against private employers who engage in discriminatory hiring. Here, the defendant refused to hire Rea because he had previously declared bankruptcy.

PFA - standing - dating relationship, mutually close, romantic bond

Evans v. Braun - Pa. Super. - December 14, 2010


http://www.pacourts.us/OpPosting/Superior/out/s48038_10.pdf

Applicable to the instant case is the fact that “family or household member” is defined as including “current or former sexual or intimate partners.” 23 Pa.C.S. § 6102(a). Instantly, Evans sought relief under the PFA Act alleging that she and Braun were “sexual or intimate partners.” While the PFA Act does not specifically define that phrase, we examined the meaning of this language in Scott. We began by analyzing the intent of the legislators in enacting the PFA Act, stating:

As we have already made clear, their intent was to prevent domestic violence and to promote peace and safety within domestic, familial and/or romantic relationships. … [T]he persons who undoubtedly fit the Act's definition of family or household members- e.g., spouses, parents, children, relatives, paramours, and persons who undertake romantic relationships-typically share some significant degree of domestic, familial and/or intimate interdependence. There is often an obvious emotional bond. Frequently, these individuals interface in very practical areas of private life - a mutual residence, common family obligations and/or shared involvement in the affairs of day-to-day living. Even in a dating relationship, where the functional interdependence might not be as substantial as in a family, the participants have elected some measure of personal interaction. This interaction often involves emotional or private concerns not unlike those found in family settings, albeit not normally as extensive or as intense. In sum, the persons protected by the Act as family or household members have a connection rooted in blood, marriage, family-standing, or a chosen romantic relationship.Scott, 928 A.2d at 315.

With this rationale in mind, we construed the word “partners” “to mean those persons who mutually chose to enter relationships.” Id. at 316. This interpretation, we concluded, “give[s] effect to the provisions of the statute in a way that promotes its purpose of preventing violence among people with a domestic, familial or romantic bond, past or present.” Id.

Applying our reasoning in Scott instantly, we conclude that Evans presented sufficient evidence to prove that she and Braun “mutually chose” to enter a “dating relationship” which involved a “romantic bond,” albeit short-lived. See id. at 315-16. Evans testified at the final PFA hearing that she and Braun “dated twice.” N.T. PFA Hearing, 1/21/10, at 5. She stated that after going to a play on their second date, Braun drove her back to his house because he wanted her to meet his son. Id. at 8. On the night that Braun threatened her with a gun at Dilly’s, Evans stated that she invited him to the bar-restaurant to apologize. Id. at 12. She explained why she was apologizing, stating:

[I was apologizing] [b]ecause I had been very straightforward with him, said some things that he might have interpreted to be unkind. I lost my husband a year and a half ago. I’ve been going very slow, trying to go very slow in relationships. And he’s very pushy and wanted things that I was not ready for. Id. at 12.

After Evans testified, she called Ms. Harnish to the stand. Ms. Harnish claimed that on the night Braun threatened Evans at Dilly’s, Evans confided in Ms. Harnish about Braun. See id. at 24-26. During this conversation, Evans told Ms. Harnish that Braun had told her that he loved her. Id. at 26.

Based on this testimony, we conclude that there was sufficient evidence presented that Braun and Evans mutually chose to enter a dating relationship which, pursuant to Scott, qualifies as a “sexual or intimate partnership” under the PFA Act. As noted in Scott, dating relationships such as this may not have a “functional independence … as substantial as in a family” but, nonetheless, Evans and Braun “elected some measure of personal interaction.” See Scott, 928 A.2d at 315.

Furthermore, we note that our conclusion is supported by the fact that “the Act was passed because the criminal law was sometimes an inadequate mechanism for dealing with violence that arose in the intimate environs of domestic life.” Scott, 928 A.2d at 315. In this case, criminal law proved to be an ineffective avenue for Evans to seek protection from Braun. Despite the fact that Braun twice showed Evans a gun and made threatening comments like “he could put a very big hole in her,” and “he still had the gun, and was not afraid to use it,” the police did not pursue a criminal investigation or charges against Braun. See T.C.O. 2-3. Instead, they directed Evans to WIN. Arguably, this is precisely the type of scenario that the Legislature intended the PFA Act to address, which bolsters our conclusion that Evans had standing to seek protection under that statute.

In sum, therefore, the trial court did not commit an error of law in concluding that Evans qualified as a member of the class of people protected by the PFA Act. Accordingly, the court did not err in denying Braun’s motion for a directed verdict, nor in granting Evans a final PFA order against Braun.

Order affirmed.

Judge Cleland files a dissenting statement.

UC - eligibility - agreement between employer and employee not valid

Pitt Chemical and Sanitary Supply v. UCBR - December 3, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/936CD10_12-3-10.pdf

The sole basis for Employer’s appeal is that the employment contract between Claimant and Employer stated: (1) Claimant would be terminated if he did not meet his sales quota; and (2) Claimant’s failure to meet the sales quota would be the legal equivalent of willful misconduct and, therefore, Claimant would not be entitled to unemployment compensation. In other words, Employer contends that the UCBR erred in awarding unemployment compensation benefits because Claimant had waived the right to file for such benefits. We reject this argument summarily.

Section 701 of the Law, 43 P.S. §861, plainly states that: “No agreement by an employe to waive, release, or commute his rights to compensation, or any other rights under this act, shall be valid.” It is the Law that determines a claimant’s eligibility for unemployment compensation, not the employer. See, e.g., Turner v. Unemployment Compensation Board of Review, 381 A.2d 223, 224 (Pa. Cmwlth. 1978) (“It is not for an employee and employer to determine eligibility for benefits by agreement.”) Therefore, the provisions of any contract in which an employee waives his or her right to unemployment compensation is unenforceable.

disability - opinion of "not acceptable medical source"

Douglass v. Astrue - ED Pa. - November 30, 2010


http://www.paed.uscourts.gov/documents/opinions/10D1229P.pdf


This case was remanded because the ALJ did not properly consider the opinion of the claimant's long-time therapist.


SSR 06-03p clarifies "how [the SSA] consider[s] opinions from sources who are not ‘acceptable medical sources.’” SSR 06-03p, 71 Fed. Reg. 45,593 (Aug. 9, 2006). Acceptable medical sources include, inter alia, licensed physicians and licensed or certified psychologists. Id. (citing 20 C.F.R. §§ 404.1513(a), 416.913(a)). “Other sources” include medical sources who are not “acceptable medical sources” and non-medical sources. Id. (citing 20 C.F.R. §§ 404.1513(d), 416.913(d)). Other medical sources include, inter alia, licensed clinical social workers and therapists. Id. (citing 20 C.F.R. §§ 404.1513(d), 416.913(d)).

In this context, this case raises an issue that apparently has not been the subject of a Third Circuit opinion – and no other Circuit opinion with similar facts has been located – to what extent must an ALJ discuss a claimant’s reliance on a medical source who is not an “acceptable medical source” and when can such evidence be deemed sufficient and persuasive enough to warrant the ALJ finding limitations severe enough to justify a finding of “disabled.”

It is clear that “[i]nformation from [not acceptable medical sources] cannot establish the existence of a medically determinable impairment[, but] may provide insight into the severity of the impairment(s) and how it affects the individual’s ability to function.” Id. at 45,595. The regulations do not specify when such evidence is sufficient for finding functional limitations that would justify a finding of “disabled.”

Because “medical sources who are not ‘acceptable medical sources[]’ . . . have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists[, o]pinions from these medical sources . . . are important and should be evaluated on key issues such as impairment severity and functional effects.” Id. The opinions of these sources should be considered along with the other relevant evidence in the file. Id. Further, the factors applied to evaluate the medical opinions from “acceptable medical sources” represent basic principles that apply to the opinions from medical sources who are not “acceptable medical sources.” Id. These factors include:

• How long the source has known and how frequently the source has seen the individual;

• How consistent the opinion is with other evidence;

• The degree to which the source presents relevant evidence to support an opinion;

• How well the source explains the opinion;

• Whether the source has a specialty or area of expertise related to the individual’s impairment(s); and

• Any other factors that tend to support or refute the opinion. Id.

Although each factor for weighing the opinion evidence will not apply in every case, the evaluation of the opinion depends on the particular facts in each case. Id. at 45,595-96. Finally, the ALJ “generally should explain the weight given to opinions from these ‘other sources,’ or otherwise ensure that the discussion of the evidence in the determination or decision allows a . . .subsequent reviewer to follow the [ALJ’s] reasoning, when such opinions have an effect on the outcome of the case.” Id. at 45,596.

In this case, the ALJ analysis of the therapist's assessment of claimant's condition was inadequate. Nowhere in this discussion does the ALJ cite to SSR 06-03p, let alone identify the factors cited above for evaluating an opinion of a medical source who is not an “acceptable medical source.” The ALJ has offered no record citations to permit this Court to review her decision for substantial evidence, in contravention of the mandate in SSR 06-03p to “ensure that the discussion of the evidence in the determination or decision allows a . . . subsequent reviewer to follow the [ALJ’s] reasoning.” SSR 06-03p, 71 Fed. Reg. at 45,596.

The Court found that that the ALJ’s conclusion regarding the therapist's opinion is not supported by substantial evidence. The ALJ rejected the opinion for two reasons: (1) the therapist is not an acceptable medical source, and (2) the opinion lacks support from the mental health evidence in the record, including the therapist's own notes. First, the ALJ is not permitted to outright reject the therapist’s opinion solely because she is not an acceptable medical source. Rather, the ALJ is required to perform the analysis mandated by SSR 06-03p. See Sykes v. Apfel, 228 F.3d 259, 271 (3d Cir. 2000) (asserting that social security rulings are binding on all components of the SSA) (citing Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984)).

Second, the ALJ’s conclusion that the therapist’s opinion lacks support is not supported by substantial evidence. . . .After reviewing the therapist’s notes, this Court finds that without detailed discussion of the entire record, the ALJ’s cursory rejection of her assessment was improper.

In addition, SSA's post hoc rationale for the ALJ decision -- not contained in the decision itself -- was held to be improper. "Although the Commissioner’s brief offers other evidence from the record in support of the ALJ’s rejection, the “grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001) (quoting SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)); Keiderling v. Astrue, No. 07-2237, 2008 WL 2120154, at *3 (E.D. Pa. May 20, 2008) (Buckwalter, S.J.) (“[I]t is well-established that the ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s decision; the Commissioner may not offer a post-hoc rationalization.”) (quotation marks and alteration omitted). The ALJ’s decision did not cite the examples that the Commissioner’s brief cites to this Court, but instead referred only to the “mental health evidence, including the counseling notes made by [Douglass’s] therapist,” which is insufficient to affirm the rejection. Accord, Keiderling v. Astrue, 2008 WL 2120154, at *4. (ED Pa.)

Sec. 1983 - municipal liability - prospective relief

Los Angeles County v. Humphries - November 30, 2010 - US Supreme Court

http://www.supremecourt.gov/opinions/10pdf/09-350.pdf

(Slip Opinion) OCTOBER TERM, 2010

SUPREME COURT OF THE UNITED STATES

LOS ANGELES COUNTY, CALIFORNIA v. HUMPHRIES ET AL.

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

No. 09–350. Argued October 5, 2010—Decided November 30, 2010

The Humphries (hereinafter respondents) were accused of child abuse in California, but were later exonerated. However, under California law, their names were added to a Child Abuse Central Index (Index),where they would remain available to various state agencies for at least 10 years. The statute has no procedures for allowing individuals to challenge their inclusion in the Index, and neither Californianor Los Angeles County has created such procedures. Respondents filed suit under §1983, seeking damages, an injunction, and a declaration that public officials and petitioner Los Angeles County had deprived them of their constitutional rights by failing to create amechanism through which they could contest inclusion in the Index.The District Court granted the defendants summary judgment, but the Ninth Circuit disagreed, holding that the Fourteenth Amendment required the State to provide those on the list with notice and a hearing, and thus respondents were entitled to declaratory relief. The court also held that respondents were prevailing parties entitled to attorney’s fees, including $60,000 from the county. The county objected, claiming that as a municipal entity, it was liable only if its"policy or custom" caused the deprivation of a plaintiff’s federal right, Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694; but a state policy caused any deprivation here. The Ninth Circuit, inter alia, found that respondents did prevail against the county on their claim for declaratory relief because Monell did not apply to prospective relief claims.

Held: Monell’s "policy or custom" requirement applies in §1983 cases irrespective of whether the relief sought is monetary or prospective. Pp. 4–10. Reversed and remanded.

Syllabus

(a) In Monroe v. Pape, 365 U. S. 167, this Court based its holding that municipal entities were not "person[s]" under §1983 on the provision’s legislative history, particularly Congress’ rejection of the so-called Sherman amendment, which would have made municipalities liable for damages done by private persons " ‘riotously and tumultuously assembled,’ " id., at 188–190, and n. 38. Reexamining this legislative history in Monell, the Court overruled Monroe. It concluded that Congress had rejected the Sherman amendment, not because it would have imposed liability on municipalities, but because it would have imposed such liability solely based on the acts of others. The Court, on the basis of the statutory text and the legislative history,went on to explain what acts are the municipality’s own for purposes of liability. The Court held that "a municipality cannot be held liable" solely for the acts of others, e.g., "solely because it employs a tortfeasor," 436 U. S., at 691, but it may be held liable "when execution of a government’s policy or custom . . . inflicts the injury," id., at 694. Pp. 4–7.

(b) Section 1983, read in light of Monell’s understanding of the legislative history, explains why claims for prospective relief, like claims for money damages, fall within the scope of the "policy or custom" requirement. Nothing in §1983 suggests that the causation requirement should change with the form of relief sought. In fact, the text suggests the opposite when it provides that a person who meets §1983’s elements "shall be liable . . . in an action at law, suit in equity, or other proper proceeding for redress." Thus, as Monell explicitly stated, "local governing bodies . . . can be sued directly under§1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes" a policy or custom. 436 U. S., at 690. To find the "policy or custom" requirement inapplicable in prospective relief cases would also undermine Monell’s logic. For whether an action or omission is a municipality’s "own" has to do with the nature of the action or omission, not with the nature of the relief that is later sought in court. Pp. 7–8.

(c) Respondents’ arguments to the contrary are unconvincing.

Pp. 8–9. Reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which all other Members joined, except KAGAN, J., who took no part in the consideration or decision of the case.

child abuse - expungement - oppty. to rebut presumption; multiple caretakers

J.W., et al. v. Dept. of Public Welfare - Cmwlth. Court - December 1, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/408CD10_12-1-10.pdf


The court upheld the challenge of grandmother, father and father's paramour to DPW indicated reports of abuse to an infant child, because DPW's application of the presumption under 23 Pa. C.S. §6381(d) was "waived because it was not raised as an issue at the hearing, thereby depriving Petitioners of a meaningful opportunity to rebut the presumption at the hearing."


Post-hearing, the ALJ applied the sec. 6381(d) presumption, which states that "Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child." The court cited a similar prior holding in In C.E. v. DPW, 917 A.2d 348 (Pa. Cmwlth. 2007).


The court also held that "[e]ven if the presumption had not been waived, Petitioners correctly argue that it does not apply in situations where a child was in the care of multiple persons during the period when the abuse occurred and it is not possible to determine which person actually abused the child."

UC - vol. quit - retirement package; pro se claimant

Smithley v. UCBR - Cmwlth. Court - Nov. 22, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/308CD10_11-22-10.pdf


voluntary retirement
Under Section 402(b) of the Law, an individual is not eligible for unemployment compensation benefits if her unemployment is due to “voluntarily leaving work without cause of necessitous and compelling nature….” 43 P.S. §802(b). “Necessitous and compelling cause” occurs under circumstances where there is a real and substantial pressure to terminate one’s employment that would compel a reasonable person to do so. See Renda v. UCBR, 837 A.2d 685, 691-92 (Pa. Cmwlth. 2003)(citing McCarthy v. UCBR, 829 A.2d 1266, 1270 (Pa. Cmwlth. 2003)). If an employee voluntarily terminates her employment then she has the burden of proving that the termination was necessitous and compelling. Renda, 837 A.2d at 692 (citing Mansberger v. UCBR, 785 A.2d 126 (Pa. Cmwlth. 2001)).

Our Court has previously considered whether a claimant who voluntarily resigns when faced with a workforce reduction is entitled to unemployment benefits. We stated that

[i]n the context of corporate downsizing, the critical inquiry is whether the fact-finder determined the circumstances surrounding a claimant’s voluntary quit indicated a likelihood that fears about the employee’s employment would materialize, that serious impending threats to her job would be realized, and that her belief her job is imminently threatened is well founded. . . . “[S]peculation pertaining to an employer’s financial condition and future layoffs, however disconcerting, does not establish the requisite necessitous and compelling cause.” . . . [W]here at the time of retirement suitable continuing work is available, the employer states that a layoff is possible . . . and no other factors are found . . . that remove an employee’s beliefs from the realm of speculation, a claim for unemployment benefits fails despite the offer to leave. Renda, 837 A.2d at 692 (footnote and citations omitted).

As the Board points out, in Claimant’s case Employer did not tell Claimant that she would be laid off or terminated if she did not accept the early retirement package. Employer was willing to allow the first five interested employees to accept it. By Claimant’s own admission, continuing employment would have been available to her because of her seniority had she not accepted the package. Any concerns Claimant may have had about being laid off were purely speculative and unsupported by the record. Though Claimant maintains that she would never have voluntarily quit her job of 43 years, her belief that she is entitled to unemployment benefits is based upon a misunderstanding of the law. Under this Court’s jurisprudence, she voluntarily quit when she resigned from her position to accept a completely voluntary early retirement package.

Pro se claimant -- The Board asks us to quash Claimant’s brief for failure to comply with the Pennsylvania Rules of Appellate Procedure. While the Board is correct that Claimant’s brief does not comply with the appellate rules, we decline to quash the brief and dismiss her appeal because she is proceeding pro se and we are able to discern the legal issues raised. Moreover, this Court is generally inclined to construe pro se filings liberally. See Robinson v. Schellenberg, 729 A.2d 122, 124 (Pa. Cmwlth. 1999).

Social Security - remand - opportunity to be heard

Thomas v. Commissioner - Third Circuit - November 18, 2010


http://www.ca3.uscourts.gov/opinarch/084593p.pdf

After being denied benefits, claimant filed an appeal in the district court, which after full briefing issued an order affirming the Commissioner’s decision with regard to whether claimant met a Listing but remanding the case to the Commissioner for further explanation of the Commissioner’s determination that Thomas did not functionally equal the listings.

Claimant appealed the district court order. During the pendency of this appeal, the ALJ issued an amended decision explaining his rationale for finding that claimant did not functionally equal the listings. Notably, the ALJ did not give the parties an opportunity to be heard, via a hearing or through submissions, prior to rendering the amended decision. Thereafter, the District Court filed an amended order reversing the Commissioner’s decision claimant benefits and remanding the case to the Commissioner for further proceedings in accordance with the opinion filed with its earlier order.

Held: the District Court abused its discretion in its remand order when it remanded a single issue to the ALJ for clarification without directing the ALJ to fully develop the record prior to rendering an explanatory decision.


This Court requires an ALJ to set forth the reasons for his decision, see Cotter v. Harris, 642 F. 2d 700, 704-705 (3d Cir. 1981), because conclusory statements are “beyond meaningful judicial review.” Burnett v. Commissioner of Social Security Administration, 220 F. 3d 112, 119 (3d Cir. 2000) Here, the District Court’s remand to the Commissioner runs afoul of the essence of Burnett because it does not direct the ALJ to reopen and fully develop the record before rendering a ruling.

By not giving the Commissioner explicit instructions to fully develop the record, the District Court essentially gave the ALJ license to issue an advisory opinion, which is exactly what occurred here. To be sure, the purpose of Burnett is not to require a formulaic process that must be adhered to on remand, but rather to ensure that the parties have an opportunity to be heard on the remanded issue and prevent post hoc rationalization by administrative law judges.

arbitration - NAF no longer exists - motion to compel denied

ROBERT G. STEWART v. GGNSC-CANONSBURG, L.P., Superior Court of Pennsylvania - November 4, 2010

http://www.pacourts.us/OpPosting/Superior/out/a31040_10.pdf


The Pa. Superior Court (an intermediate appellate court) affirmed the trial court decision denying the motion to compel arbitration. The trial court concluded that the Agreement was unenforceable because an essential term of the Agreement failed; that is, the arbitration forum selection clause designating the NAF and its procedures were integral to the Agreement and could not be enforced because the NAF was no longer available to act as arbitrators.


The opinion contains a review of cases on both sides of the issue of whether the naming of a particular arbitrator is an essential part of the agreement.


The court also held that "the forum selection clause was not an 'ancillary logistical concern, but rather an essential part of the parties’ agreement,' thereby justifying the Court’s decision to void the entire arbitration agreement

unjust enrichment - not applic. where there is express contract

Wayne Moving and Storage v. School District of Philadelphia - October 28, 2010 - 3d Circuit Court of Appeals

http://www.ca3.uscourts.gov/opinarch/093890p.pdf

In Wilson Area School District v. Skepton, the Supreme Court of Pennsylvania held that parties to a contract "are not entitled to the remedies available under a judicially-imposed quasi[-]contract [i.e., the parties are not entitled to restitution based upon the doctrine of unjust enrichment] because the terms of their agreement (express and implied) define their respective rights, duties, and expectations." 895 A.2d 1250, 1254 (Pa. 2006) (modifications in original) (quoting Curley v. Allstate Ins. Co., 289 F. Supp. 2d 614, 620 (E.D. Pa. 2003)); see also In re Penn Cent. Transp. Co., 831 F.2d 1221, 1230 (3d Cir. 1987) (holding that a party cannot assert a claim of unjust enrichment "if there is an express contract on the same subject").

equitable estoppel - application against the state

Wayne Moving and Storage v. School District of Philadelphia - October 28, 2010 - 3d Circuit Court of Appeals

http://www.ca3.uscourts.gov/opinarch/093890p.pdf


Under Pennsylvania law, equitable estoppel consists of three elements: "1) misleading words, conduct, or silence by the party against whom the estoppel is asserted; 2) unambiguous proof of reasonable reliance upon the misrepresentation by the party asserting estoppel; and 3) the lack of a duty to inquire on the party asserting the estoppel." Chester Extended Care Ctr. v. Pennsylvania Dep’t of Pub. Welfare, 586 A.2d 379, 382 (Pa. 1991).


Equitable estoppel can be applied against the Commonwealth of Pennsylvania or its subdivisions. Wayne Moving, 2008 WL 65611, at *8; see, e.g., Chester Extended Care Ctr., 586 A.2d at 382 ("The doctrine of estoppel is an equitable remedy that may be asserted against the government in this jurisdiction.").


However, the Commonwealth or its subdivisions and instrumentalities cannot be estopped „by the acts of its agents and employees if those acts are outside the agent‟s powers, in violation of positive law, or acts which require legislative or executive action.‟" Cent. Storage & Transfer Co. v. Kaplan, 410 A.2d 292, 294 (Pa. 1980) (quoting Kellams v. Pub. Sch. Emp. Ret. Bd., 403 A.2d 1315, 1318 (Pa. 1979)).


The Supreme Court of Pennsylvania resolved the tension between these principles in holding that "[a]lthough it is the general rule that estoppel against the government will not lie where the acts of its agents are in violation of positive law, . . . this rule cannot be slavishly applied where doing so would result in a fundamental injustice." Chester Extended Care Ctr., 586 A.2d at 383 (citation omitted).

UC - record evidence - violation of work rule

N. Lee Ligo and Associates v. UCBR - unpublished - October 28, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/96CD10_10-28-10.pdf


Decision must be based on evidence produced at the hearing - Pursuant to 34 Pa. Code § 101.106, the Board’s scope of review of an appeal from the decision of a referee is that it “may review both the facts and the law pertinent to the issues involved on the basis of the evidence previously submitted . . . .” The Board is not permitted to consider post-hearing factual communications in its determination and must consider only the evidence previously submitted at the hearing. Croft v. UCBR, 662 A.2d 24 (Pa. Cmwlth. 1995); Tener v. UCBR, 568 A.2d 733 (Pa. Cmwlth. 1990).

Violation of work rule - employer b/p - claimant conduct must be intentional and deliberate - When the misconduct involves a work rule violation, the employer bears the burden of proving the existence of the work rule and its violation. Walsh v. UCBR, 943 A.2d 363 (Pa. Cmwlth. 2008). Moreover, in order for Employer to demonstrate willful misconduct, it must present evidence that Claimant’s conduct was intentional and deliberate. See Grieb v. UCBR, 573 Pa. 594, 827 A.2d 422 (2003). A determination of whether an action constitutes willful misconduct requires a consideration of all of the circumstances, “including the reasons for the employee’s noncompliance with the employer’s directive.” Rebel v. UCBR, 555 Pa. 114, 117, 723 A.2d 156, 158 (1998).