UC - voluntary quit - good cause - emotional health - improper Board reversal of referee - Treon

Fiedler v. UCBR - Cmwlth. Court - April 18, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/1984CD10_4-18-11.pdf

Claimant had good cause to quit his job. He was suffering emotional difficulties due to the death of one of his children and needed to be nearer to the rest of his family for support.. Beachem v. UCBR, 760 A.2d 68, 71 (Pa. Cmwlth. 2000).

Claimant took reasonable measures to preserve his employment. Based on his testimony, the referee found that “[t]he claimant shared with the employer the emotional difficulties he was having trying to cope with the loss of his child.” However, the UCBR, without comment, disregarded this referee’s finding.

In Treon v. UCBR, 499 Pa. 455, 461, 453 A.2d 960, 962 (1982), our Supreme Court stated that if the UCBR determines that particular findings of the referee are inconsistent, incredible or unsupported by the evidence, then the UCBR must indicate such finding. “The [UCBR] may not, however, simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its reasons for doing so.” Id. When the UCBR does so, the appellate court may reinstate the finding. Id. Thus, we reinstate the referee’s finding that Claimant shared his difficulties with Employer, and we conclude that Claimant took reasonable efforts to preserve his employment.

UC - willful misconduct - no substantial evidence

Francois v. UCBR - Cmwlth. Court - April 13, 2011 - unreported memorandum decisions http://www.pacourts.us/OpPosting/Cwealth/out/1059CD10_4-13-11.pdf Where the only evidence of claimant's alleged violation of the employer no-call/no-show policy was the claimant testimony, in which she denied any violations, substantial evidence did not support the Board's finding of willful misconduct. The court remanded the case, because the Board made an "invalid or inadequate finding of fact."

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This summary and others are available at the PLAN Legal Updates http://planupdate.blogspot.com/, which is searchable.

Unreported decisions, even although not binding precedent, can be cited for their persuasive value , pursuant to 210 Pa. Code § 67.55 http://www.pacode.com/secure/data/210/chapter67/chap67tochtml#67.55.

admin. law - petition for review - specificity - Deal

http://pabulletin.com/secure/data/vol41/41-16/646.html

THE COURTS

Title 210—APPELLATE PROCEDURE

PART I. RULES OF APPELLATE PROCEDURE

210 PA. CODE CH. 15 

Amendment of Explanatory Comment to Rule 1513 of the Rules of Appellate Procedure; No. 210 Appellate Procedural Rules Doc.

41 Pa.B. 1999 - Saturday, April 16, 2011

Order

Per Curiam

 And Now, this 31st day of March, 2011, upon the recommendation of the Appellate Court Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. No. 103(a)(3) in the interests of justice and efficient administration:

 It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the Explanatory Comment to Rule 1513 of the Pennsylvania Rules of Appellate Procedure is amended in the following form.

 This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective in thirty days.

Annex A

TITLE 210. APPELLATE PROCEDURE

PART I. RULES OF APPELLATE PROCEDURE

ARTICLE II. APPELLATE PROCEDURE

CHAPTER 15. JUDICIAL REVIEW OF GOVERNMENTAL DETERMINATIONS

PETITION FOR REVIEW

Rule 1513. Petition for Review.

*  *  *  *  *

Explanatory Comment—2011

With respect to the general statement of objections in an appellate jurisdiction petition for review required in subdivision (d)(5), see Maher v. Unemployment Comp. Bd. of Review, 983 A.2d 1264, 1266 (Pa. Cmwlth. 2009).

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Here is a link to Maher http://www.pacourts.us/OpPosting/Cwealth/out/1843CD08_10-27-09.pdf

The Court in Maher affirms the decisions in Deal v. Unemployment Compensation Board of Review, 878 A.2d 131 (Pa. Cmwlth. 2005) and Patla v. UCBR, 962 A.2d 724 (Pa. Cmwlth. 2008), that the Petition for Review must do more than re-state the statutory language about appeals. It must articulate some specific challenge to the UCBR decision.

UC- willful misconduct - violation of work rule - no proof of "willful"

McBride v. UCBR - Cmwlth. Court - april 14, 2011 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1807CD10_4-14-11.pdf

Willful misconduct has been judicially defined as that misconduct which must evidence the wanton and willful disregard of employer's interest, the deliberate violation of rules, the disregard of standards of behavior which an employer can rightfully expect from his employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional substantial disregard for the employer's interest, or the employee's duties and obligations. Frumento v. UCBR, 466 Pa. 81, 351 A.2d 631 (1976). Whether an employee's conduct constituted willful misconduct is a matter of law subject to this Court's review. Miller v. UCBR, 405 A.2d 1034 (Pa. Cmwlth. 1979). The burden of proving willful misconduct rests with the employer. Brant v. UCBR, 477 A.2d 596 (Pa. Cmwlth. 1984).

Where, as is here, a claimant is discharged for violation of a work rule or policy, the employer must establish both the existence of the reasonable work rule and its violation. Brunson v. UCBR, 570 A.2d 1096 (Pa. Cmwlth. 1990). Where the employer proves the existence of a rule, the reasonableness of the rule and the fact of its violation, the burden shifts to the claimant to prove that she had good cause for her action. Guthrie v. UCBR, 738 A.2d 518 (Pa. Cmwlth. 1999).

An employer “must present evidence indicating that the conduct was of an intentional and deliberate nature” in order to prove willful misconduct. Grieb v. UCBR, 573 Pa. 594, 600, 827 A.2d 422, 426 (2003). The deliberate violation of an employer’s rules or policies is generally considered to be willful misconduct. Navickas v. UCBR, 567 Pa. 298, 304, 787 A.2d 284, 288 (2001). Critically, to be disqualifying, the employee’s violation of a rule must be knowing and deliberate. An inadvertent rule violation is not willful misconduct. BK Foods, Inc. v. UCBR, 547 A.2d 873 (Pa. Cmwlth. 1988).

. Employer failed to satisfy its burden of establishing a prima facie case of willful misconduct in light of the facts and totality of the circumstances. Employer did not offer any documents or testimony, during the three valid hearings conducted before the Referee, establishing the existence of a reasonable work policy/rule and a deliberate violation by Claimant of Employer’s rules or policies. The Board found, presumably based on Claimant’s testimony, that Claimant was aware of Employer’s policies and that Claimant violated those policies.

However, Claimant did not testify that she deliberately violated any of Employer’s policies. Claimant maintained throughout this matter, beginning with her appeal letter and ending with her testimony, that she did not commit any of the alleged violations with the deliberate intent of committing willful misconduct. Moreover, Employer offered no evidence to refute Claimant’s assertions.

In making its findings, the Board specifically credited Employer’s testimony that Claimant’s actions were in violation of Employer’s policies. The Board also resolved all conflicts in the testimony in favor of Employer and concluded that Claimant’s behavior rose to the level of willful misconduct.

Again, Employer did not present any testimony regarding Claimant’s actions nor did Employer present any specific testimony or evidence that its policies were reasonable and that Claimant’s actions were a deliberate or intentional violation of Employer’s policies.

Accordingly, we have no choice but to conclude that Employer failed to meet its burden that Claimant deliberately violated its reasonable policies and that the Board’s findings, that purportedly support the Board’s conclusion that Claimant committed willful misconduct, are not supported by substantial evidence.

The Board’s order is reversed.

federal courts - preliminary injunction

Hynoski v. Columbia Co. Redevelopment Authority - MD Pa. - March 11, 2011

http://www.pamd.uscourts.gov/opinions/Conner/10v2222.pdf

The requirements for preliminary injunctive relief are well settled. In order to obtain this extraordinary remedy, the moving party must establish that: (1) there is a reasonable probability of success on the merits, (2) irreparable injury will result without injunctive relief, (3) granting the injunction will avoid a comparably greater hardship than denying it, and (4) the injunction is in the public interest. See Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d Cir. 2002); BP Chems., Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 263 (3d Cir. 2000).

While each factor need not be established beyond doubt, they must combine to show the immediate necessity of injunctive relief. . . . (“[T]he degree of likelihood of success is not determinative. Rather it must be considered and balanced with the comparative injuries of the parties.”). If, however, the moving party fails to show both a reasonable probability of success on the merits and irreparable injury, then the court must deny preliminary injunctive relief. In re Arthur Treacher’s Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Chamberlain, 145 F. Supp. 2d 621, 625 (M.D. Pa. 2001).

Reasonable Probability of Success on the Merits -- To establish a reasonable probability of success on the merits, the moving party must produce sufficient evidence to satisfy the essential elements of the underlying cause of action. See Punnett v. Carter, 621 F.2d 578, 582-83 (3d Cir. 1980). This requires examination of the legal principles controlling the claim and potential defenses available to the opposing party. See BP Chems., 229 F.3d at 264. However, the mere possibility that the claim might be defeated does not preclude a finding of probable success if the evidence clearly satisfies the essential prerequisites of the cause of action. Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 173 (3d Cir. 2001)

Irreparable Injury - Irreparable injury is the sine qua non of preliminary injunctive relief. It is harm of such an irreversible character that prospective judgment would be inadequate to make the moving party whole. See Anderson v. Davila, 125 F.3d 148, 163 (3d Cir. 1997); Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989); Goadby v. Philadelphia Elec. Co., 639 F.2d 117, 121 (3d Cir. 1981) (“This court has repeatedly emphasized the elementary principle that a preliminary injunction shall not issue except upon a showing of irreparable injury.” (internal quotation marks omitted)). The mere risk of injury is not sufficient to meet this standard. Rather, the moving party must establish that the harm is imminent and probable. Anderson, 125 F.3d at 164; 11A WRIGHT ET AL., supra, § 2948.1. Harm that may be contained effectively only through immediate injunctive relief is properly deemed “irreparable.” Instant Air Freight, 882 F.2d at 801. ).

federal courts - 11th Amendment immunity

Hynoski v. Columbia Co. Redevelopment Authority - MD Pa. - March 11, 2011

http://www.pamd.uscourts.gov/opinions/Conner/10v2222.pdf

Suit v. DCED involving eminent domain in Centralia, Pa., home of the eternal mine fire. One landlowner brought sec. 1983 action based on alleged equal protection violation, claiming improper different treatment of his situation from that of another landowner.

The Eleventh Amendment states: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.U.S. CONST. amend. XI.

It provides a jurisdictional bar to private federal litigation against a state and its agencies. Hans v. Louisiana, 134 U.S. 1, 15-16 (1890) (holding that the Eleventh Amendment bars citizens from bringing suit against their own state in federal court); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000); Lombardo v. Pennsylvania, 540 F.3d 190, 194-95 (3d Cir. 2008). The Commonwealth of Pennsylvania is not a defendant in the matter sub judice; nevertheless, DCED, as an arm of the Commonwealth, is entitled to the protections afforded to the Commonwealth by the Eleventh Amendment. See Chittister v. Dep’t of Cmty. & Econ. Dev., 226 F.3d 223, 226 (3d Cir. 2000) (noting that the parties in that case did not dispute that DCED “is within the protection of the Eleventh Amendment”), abrogated in part on other grounds by Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003); see also Des-Ogugua v. Pa. Dep’t of Cmty. & Econ. Dev., No. 1:06-CV-0721, 2006 WL 2950481, at *1 (M.D. Pa. Oct. 16, 2006) (finding that DCED enjoys “Eleventh Amendment immunity from suit”).

Eleventh Amendment sovereign immunity is subject to three basic exceptions: (1) Congress may specifically abrogate a state’s sovereign immunity by exercising its enforcement power under the Fourteenth Amendment; or (2) a state may waive its sovereign immunity by consenting to suit; or (3) under Ex Parte Young, a state official may be sued in his/her official capacity for prospective injunctive relief. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999); Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002); Hindes v. FDIC, 137 F.3d 148, 165 (3d Cir. 1998).

Plaintiffs’ § 1983 claims against DCED do not fall under any of these exceptions to Eleventh Amendment immunity. First, it is well settled that Congress did not intend to abrogate the states’ sovereign immunity by enacting § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66(1989). Second, Pennsylvania has unequivocally withheld its consent to such suits.See 42 PA. CONS. STAT. § 8521(b); see also Lombardo, 540 F.3d at 196 n.3; Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). Third, the Ex Parte Young exception to the Eleventh Amendment’s jurisdictional bar is inapplicable to plaintiffs’ claim against DCED; the exception applies only to officials, not to state agencies. See Ex Parte Young, 209 U.S. 123 (1908). The court therefore concludes that DCED enjoys sovereign immunity.5

Steven Fishman [chief counsel at DCED], who is being sued in his official capacity, also argues that he enjoys immunity from plaintiffs’ claims under the Eleventh Amendment; however, he fails to address the doctrine of Ex Parte Young. The Third Circuit has opined that “a state official sued in his official capacity for prospective injunctive relief is a person within section 1983, and the Eleventh Amendment does not bar such a suit.” Hindes v. FDIC, 137 F.3d 148, 165 (3d Cir. 1998). Insofar as plaintiffs seek prospective injunctive relief against Fishman, a state official sued in his official capacity, the court rejects Fishman’s sovereign immunity defense.

federal courts - sec. 1983 - statute of limitations

Hynoski v. Columbia Co. Redevelopment Authority - MD Pa. - March 11, 2011

http://www.pamd.uscourts.gov/opinions/Conner/10v2222.pdf

The statute of limitations for an action under 42 U.S.C. § 1983 corresponds to the local statute of limitations for tort actions seeking recovery for personal injuries. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985); Reitz v. County of Bucks, 125 F.3d 139, 143 (3d Cir. 1997).

Hence, Pennsylvania’s two - year statute of limitations for personal injury actions governs § 1983 claims brought in federal court in Pennsylvania. See 42 PA. CONS. STAT. § 5524; see also Sameric Corp. of Del. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998) (“In actions under 42 U.S.C. § 1983, federal courts apply the state’s statute of limitations for personal injury.”).

Federal law controls the determination as to when a § 1983 claim accrues. See Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998); Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991). Under federal law, “[a] section 1983 cause of action accrues when the plaintiff knew or should have known of the injury upon which its action is based.” Sameric, 142 F.3d at 599.

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malpractice - statute of limitations - occurrence rule v. discovery rule

Knopick v. Connelly, et al. - 3d Cir. - April 13, 2011

http://www.ca3.uscourts.gov/opinarch/101589p.pdf

Discovery rules applied under the facts of the case. Lengthy and detailed analysis of the tolling issue for legal malpractice claim in Pennsylvania, as well as when it is appropriate to apply to discovery rule (when the harm was discovered) v. occurrence (the act that caused the harm).

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).

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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.

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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.

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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.

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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.

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