admin. law - statutory construction - no deference to agency expertise

In Re: Petition for Formation of Independent School District - Cmwlth. Court - April 13, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/2210CD09_4-13-11.pdf Courts will defer to an agency’s expertise where the agency evaluates and resolves conflicts in the evidence, particularly where the evidence is technical in nature. Yi v. State Board of Veterinary Medicine, 960 A.2d 864, 870 (Pa. Cmwlth. 2008). However, “the meaning of [a] statute is a question of law for the court.” Connecticut General Life Insurance Company v. Pennsylvania Life and Health Insurance Guaranty Association, 866 A.2d 465, 467 (Pa. Cmwlth. 2005). Courts can defer to an agency’s interpretation of the statute where that statute is ambiguous or relates to a complex subject, such as a technical tax question. Tool Sales & Service Co., Inc. v. Board of Finance and Revenue, 536 Pa. 10, 22, 637 A.2d 607, 613 (1993). Otherwise, the agency’s interpretation “carries little weight,” especially where it is wrong. Office of Administration v. Pennsylvania Labor Relations Board, 591 Pa. 176, 190 n.11, 916 A.2d 541, 549 n.11 (2007). The Secretary’s “expertise” is irrelevant to the statutory construction issue.

abuse - expungement - presumption

B.B. (now B.L.) v. DPW - Cmwlth. Court, April 13, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/6CD10_4-13-11.pdf

The presumption in 23 Pa.C.S. 6381(d) -- that the "parent or other person" responsible for a child’s welfare was the person who the child abuse, and only the abuse itself had to be established in the case of an indicated child abuse by prima facie evidence -- cannot be applied where more than one individual was entrusted with a child’s care during the period in which medical evidence shows the injuries were inflicted.

On its own, the language of Section 6381(d) resolves the case. In sec. 6381(d), the General Assembly in setting forth the presumption refers only to the “parent or other person” responsible for the welfare of the child. 23 Pa.C.S. §6381(d). The clear use of the singular tense therein cannot be read as an accident, and cannot therefore be read to apply to any situation in which the presumption is sought to be applied to more than one “parent or person.”

Accordingly, we hold that the only reasonable statutory construction of Section 6381(d) leads to the sole conclusion that it is applicable only to one caregiver, absent some additional evidence that would serve to eliminate from consideration all but one caregiver (or, additional evidence that would implicate more than one or all caregivers)

debt collection - time-barred debt

Huertas v. Galaxy Asset Management, Inc. - 3d Cir. - April 11, 2011 http://www.ca3.uscourts.gov/opinarch/102532p.pdf In a case dependent partly on N.J. law, the court held that an attempt to a debt time-barred by the statute of limitations does not violation the Fair Debt Collection Practices Act, where the collection letter did not threaten litigation. The court noted that -- - Under NJ law, a debt obligation is not extinguished by the expiration of the statute of limitations, even though the debt is ultimately unenforceable in a court of law. This is also apparently the rule in Pennsylvania. See Cohen v. Keller, 90 A. 463 (Pa. 1914). - the majority of courts has held that when the expiration of the statute of limitations does not invalidate a debt, but merely renders it unenforceable, the FDCPA permits a debt collector to seek voluntary repayment of the time-barred debt so long as the debt collector does not initiate or threaten legal action in connection with its debt collection efforts (listing cases on both sides of the issue). - despite the above, a collection letter that threatens litigation may violate the FDCPA. The letter in this case did not, even under the "least sophisticated debtor" standard.

foreclosure - deficiency judgment

The Home Savings and Loan v. Irongate Ventures - Superior Court - April 8, 2011

http://www.pacourts.us/OpPosting/Superior/out/a03012_11.pdf

Deficiency judgment action must be brought "in the matter in which the judgment was entered." 42 Pa. C.S. 8103(a). In this case, there were two judgments -- a) money judgment by confession against corporate landowner; b) foreclosure against against same corporate landowner.

Property sold by sheriff's sale in the deficiency case. However, Plaintiff brought deficiency action in money judgment case, not foreclosure case.

Held, deficiency action dismissed because not brought "in matter in which the judgment was entered." Attempt to set deficiency in the money judgment case took place beyond six months from the date of the sheriff's sale. If the judgment creditor fails to file a § 8103(a) petition to fix the fair market value of the property within six months of the sheriff’s sale, then the debtor may file a petition to have the judgment marked satisfied, released and discharged as a matter of law. 42 Pa.C.S.A. § 8103(d); First Nat. Consumer Discount Co. v. Fetherman, 527 A.2d 100, 105 (Pa. 1987).

_____________

burden of proof and construction in deficiency cases

The judgment creditor must carry the burden to demonstrate its compliance with the Deficiency Judgment Act.” First Federal Sav. & Loan Ass'n of Carnegie v. Keisling, 746 A.2d 1150, 1153-1154 (Pa. Super. 2000) (citations omitted). Moreover, the Deficiency Judgment Act is to be liberally interpreted in favor of judgment debtors. Id.

“The objective of the Deficiency Judgment Act is to relieve a debtor from further personal liability to the judgment creditor when the real property taken by the judgment creditor on an execution has a fair market value on the date of sale sufficient so that the judgment creditor can dispose of the property to others without a further loss.” Horbal v. Moxham Nat. Bank, 697 A.2d 577, 582 (Pa. 1997).

constitutionality of Deficiency Judgment Act

N.B. We note that in Commonwealth v. Nieman, 5 A.3d 353, (Pa. Super. 2010 this Court, en banc, held that the Deficiency Judgment Act, 42 Pa.C.S.A. § 8103, was unconstitutional. However, by order dated October 19, 2010, upon the Petition to Intervene of the General Assembly of the Commonwealth of Pennsylvania, this Court granted a stay of the decision in Nieman, retroactive to September 8, 2010, and pending review by the Pennsylvania Supreme Court.

name change - minor - standing - best interest

In re Change of name of EML to EMS - Superior Court - April 7, 2011 http://www.pacourts.us/OpPosting/Superior/out/S80030_10.pdf Fifteen y/o minor had standing to ask for change of his surname from that of biological parents to long-time (13+ years) foster parents. Name change granted as being in minor's best interests.

__._,_.___

EAJA - atty. fees - experienced attorney; special circumstances; who gets the award

Burt v. Astrue - ED Pa. - April 6, 2011 http://www.paed.uscourts.gov/documents/opinions/11D0390P.pdf It is well-settled that where an attorney is experienced in the social security field in general or in the particulars of the case at issue, the Commissioner is entitled to “additional efficiency.” Highsmith v. Barnhart, No. CIV.A.04-801, 2006 WL 1582337, at *6 (E.D. Pa. June 7, 2006). Therefore, where arguments on appeal of such a case are verbatim recitations of arguments previously made during administrative proceedings, attorney’s fees may be reduced. Id. By the same token, however, when an experienced social security attorney has not previously represented this client during administrative proceedings, the attorney is not as well-versed in the particulars of the case and thus may justifiably need additional time. See Forsythe v. Astrue, No. CIV.A.07-266, 2008 WL 4683436, at *5 (W.D. Pa. Oct. 22, 2008); see also Sommerville v. Astrue, 555 F. Supp. 2d 1251, 1254 (D. Kan. 2008) (declining to reduce fees on ground that “this court will not disregard time honestly spent working on the brief simply because the attorney preparing it is experienced”). While no court has, or could, establish a broad-sweeping rule as to what constitutes a reasonable amount of time for briefing a social security appeal, several cases have offered helpful standards. For example, in Walton v. Massanari, 177 F. Supp. 2d 359 (E.D. Pa. 2001), the court found – citing to a prior Third Circuit decision – that two to three hours per page was reasonable. Id. at 364-65. Similarly, in Neal v. Astrue, 741 F. Supp. 2d 729 (W.D. Pa. 2010), the court found that twenty-eight and a half hours for a twenty-six page brief on summary judgment was not unreasonable or excessive. Id. at 722-23. Finally, in Wirth v. Barnhart, 325 F. Supp. 2d 911 (E.D. Wis. 2004), the court found thirty hours spent on a main brief by experienced social security counsel to be reasonable, even where the applicable law was well-settled. Id. at 915. In the present matter, Plaintiff’s counsel submitted an almost thirty-page brief in support of the Motion for Summary Judgment. Approximately nine pages of that brief were copied verbatim from other briefs filed by counsel in other social security cases in which he was counsel of record. Nonetheless, the Court does not find that such duplication warrants any fee deduction for several reasons. First, the duplicated sections were simply cut-and-paste versions of developed and wellsettled law. Almost any efficient and experienced attorney takes advantage of previously-written statements of law or standards of review when the law has been neither superseded nor substantively altered. Indeed, the Court notes that Commissioner’s counsel is frequently guilty of the same efficiencies.

Second, the brief clearly reflects counsel’s significant effort in scouring the administrative record to provide detailed factual support on six separate legal issues, highlighting alleged deficiencies in the administrative decision. While the legal issues themselves were not necessarily complex, the identification of issues under the relevant principles and operative facts required counsel’s knowledge and experience – a point which the Commissioner does not dispute.

Third, counsel’s task was complicated by his non-involvement in the lengthy prior administrative proceedings, thereby requiring him to advocate in unfamiliar territory. Fourth, although not succeeding on all issues, counsel clearly obtained a favorable result for his client.

Finally, even subtracting the nine duplicated pages from the total, Plaintiff’s counsel provided at least twenty-one new pages of briefing, meaning that he spent just over one hour per page. Under the standards within the Third Circuit, such time is clearly not excessive or unreasonable. Accordingly, the Court declines to deduct any of these requested fees.

No Special Circumstance - There is an extensive discussion of the issue of fees when plaintiff has opposed the Commr's motion for remand. In this case, the court held that Plaintiff's counsel was justified in opposing soc. sec. motion for remand because of (a) the Commissioner’s failure to immediately recognize the defect in the second ALJ’s decision; (b) the reasonableness of Plaintiff’s argument that the law of the case required reversal; and (c) the extreme delay of more than ten years justified Plaintiff’s opposition to remand. Accordingly, the Court declines to exclude from Plaintiff’s attorneys fee award the hours spent on that effort.

Who Obtains the Award - The final argument in the Commissioner’s brief urges that the award of EAJA fees should be made payable to Plaintiff and not her counsel. The Court agrees. Section 2412(d)(1)(A) of 28 U.S.C. states that courts “shall award to a prevailing party . . . fees and other expenses . . . incurred by that party.” Id. In the recent case of Astrue v. Ratliff, the United States Supreme Court definitively held that “the term ‘prevailing party’ in fee statutes is a ‘term of art’ that refers to the prevailing litigant.” 130 S. Ct. 2521, 2525 (2010). In turn, it rejected any argument that an attorney is directly entitled to an award of fees and concluded that “the statute’s plain text . . . ‘awards’ the fees to the litigant, and thus subjects them to a federal administrative offset if the litigant has outstanding federal debts.” Id. at 2527. I In light of this controlling interpretation of the statute, the Court awards the attorneys fees directly to Plaintiff.1

1 Plaintiff cursorily remarks that she has assigned the fees to her attorney, thus making the fees directly payable to her attorney. As persuasively noted by one of our sister courts, however, “[a]n assignment made prior to the award of attorneys fees necessarily violates [the requirements of the Anti-Assignment Act, 31 U.S.C. § 3727] because the claim has not been allowed, the amount of the claim is not decided and a warrant for payment of the claim has not been issued.” Hartage v. Astrue, No. CIV.A.09-48, 2011 WL 1123457, at *5 (M.D. Ga. Feb. 15, 2011). In this case, the purported assignment by Plaintiff to her counsel was made prior to the award of attorneys fees, meaning that it contravenes the Anti-Assignment Act. Such an assignment thus does not allow Plaintiff’s counsel to directly receive the court-awarded EAJA fees.

employment - due process - suspension - prior hearing

Schmidt v. Creedon - 3d Cir. - March 29, 2011

http://www.ca3.uscourts.gov/opinarch/092051p.pdf

Under Pennsylvania law, 53 Pa. Stat. § 46190, policemen [sic] and fireman [sic] cannot be suspended or terminated without just cause. This recognition of this property interest in their positions has been applied both to terminations and to suspensions. See, e.g., Dee v. Borough of Dunmore, 549 F.3d 225, 230 (3d Cir. 2008). Absent extraordinary circumstances, the statute has been interpreted as creating a property interest requiring at least a brief and informal pre-termination or pre-suspension hearing.

The District Court held that, despite plaintiff'‘s property interest in his position, because there was a post-suspension hearing provided by the Collective Bargaining Agreement, no pre-suspension hearing was necessary.

The Third Circuit reversed, holding that, except for extraordinary situations, under Pennsylvania law, even when union grievance procedures permit a policeman to challenge his suspension after the fact, a brief and informal pre-termination or pre-suspension hearing is necessary. However, because this rule was not clearly established at the time of plaintiff‘s suspension, it held that appellees were entitled to qualified immunity.

Sec. 1983 - police involvement in private property dispute

Harvey v. Plains Twp. Police Dept - 3d Cir. March 29, 2011

http://www.ca3.uscourts.gov/opinarch/091170p.pdf

To prevail on a § 1983 claim, plaintiff had to show, first, that she was deprived of a constitutional right and, second, that the alleged deprivation was "committed by a person acting under color of state law." Harvey I, 421 F.3d at 189 (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). The first element was not in dispute. The case turned on whether plaintiff could prove that the police officer acted "under color of state law." 42 U.S.C. § 1983.

Action under color of state law "requires that one liable under § 1983 have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998) (internal quotation marks and citations omitted). We have considered state action in the context of private repossessions before. The test is whether the officer maintains neutrality or takes an active role in the repossession resulting in an unconstitutional deprivation. Id. at 147. "The mere presence of police at the scene of a private repossession does not, alone, constitute state action." Id.

An officer‟s presence may be requested to maintain the peace, and the officer appropriately does so by remaining neutral. An officer abandons neutrality once he takes an active role and assists in the repossession. The relevant inquiry, then, is whether an officer affirmatively aided a repossession such that he can be said to have caused the constitutional deprivation. Such aid may take the form of facilitation, encouragement, direction, compulsion, or other affirmative assistance in the repossession.3 See Marcus v. McCollum, 394 F.3d 813, 819 (10th Cir. 2004). However, liability will only attach when an officer plays a "principal role" in the seizure. Abbott, 164 F.3d at 147. In short, an officer may be liable for causing a constitutional deprivation if he "aid[s] the repossessor in such a way that the repossession would not have occurred but for [his] assistance." Marcus, 394 F.3d at 819.

The distinction between maintaining neutrality and taking an active role is not to be answered in the abstract. There is no precise formula, and the distinction lies in the particular facts and circumstances of the case. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961) ("Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance."). To determine whether a police officer acted under the color of state law, the facts and circumstances of the police officer‟s role in the private repossession must be examined in their totality. See Howerton v. Gabica, 708 F.2d 380, 384 (9th Cir. 1983).

disability - remand - post-hearing psych. report - duty to consider

Boyd v. Astrue - ED Pa. - March 18, 2011

http://www.paed.uscourts.gov/documents/opinions/11D0289P.pdf

Remand based on newly introduced evidence is authorized by the sixth sentence of 42U.S.C. § 405(g), which states that a court may remand a case when there is new, material evidence, and there is good cause for its absence from the administrative record. Id.; see also Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2000). Evidence is “new” if it is not “merely cumulative of what is already on the record.” Szubak v. Sec’y of HHS, 745 F.2d 831, 833 (3d Cir. 1984). Evidence is “material” if it is “relevant and probative . . . [and] there is a reasonable possibility that the new evidence would have changed the outcome” of the administrative decision. Id. To be material, the evidencemust also be relevant to the time period considered by theALJ, and not simply demonstrate a later-acquired disability or deterioration of a previously non-disabling condition. Id.

Here, the Magistrate Judge found the post-hearing mental evaluation was new. The ALJ did not order a mental examination to address Boyd’s claims of brain damage and learning disabilities, relying instead on an erroneous interpretation of Boyd’s school records, which the ALJ incorrectly asserted did not include special education classes.

The Magistrate Judge found the mental evaluation was material because it reflects a life-long learning disability which existed during the time period considered by the ALJ, and found there is a reasonable possibility Boyd’s mental disability could qualify Boyd as disabled by meeting or equaling a listed impairment, or could otherwise affect his RFC.

The Magistrate Judge further found Boyd could not have introduced the post-hearing examination report before the ALJ’s denial of benefits, which occurred several months before the examination was conducted. Accordingly, the Magistrate Judge recommended this case be remanded.

__._,_.___

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]

++++++++++++++++++++++++++

“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.

++++++++++++++++++++++++++++++

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.