Civil Procedure - Prothonotary - powers - no power to reject or evaluate documents

Brown v. Levy - Cmwlth. Court - June 27, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/1270CD09_6-27-11.pdf

The court held that under Pa. R.C.P. 205.2, a prothonotary has a "duty to file documents that substantively comply with the rules of civil procedure."

In this mandamus action by a prisoner, the prothonotary filed a motion to dismiss the action, alleging that it constituted "prison conditions litigation" under the three-strikes provision of the state Prison Litigation Reform Act, 42 Pa. C.S. 6601 et seq., which authorized dismissal of such cases after 3 or more by the same prisoner had been dismissed as frivolous.

The court agreed with the plaintiff prisoner that a mandamus action is not "prison conditions litigation". It stated further that "the Prothonotary, while playing an essential role in our court system, lacks authority to interpret statutes, evaluate the merits of a litigant’s pleading, and decline to accept a timely filed document.

It is “well settled” in the intermediate courts of this Commonwealth that the role of the prothonotary of the court of common pleas, while vitally important, is purely ministerial. . . As a purely ministerial office, any authority exercised by the prothonotary must derive from either statute or rule of court. . . Further, as “[t]he prothonotary is merely the clerk of the the court of Common Pleas[,][h]e has no judicial powers, nor does he have power to act as attorney for others by virtue of his office.” . . . Consistent therewith, “[t]he prothonotary is not ‘an administrative officer who has discretion to interpret statutes.’” . . .Thus, while playing an essential role in our court system, the prothonotary’s powers do not include the judicial role of statutory interpretation. . . [I]f documents tendered for filing are proper on their face and in conformity to the rules of court, a prothonotary does not have discretion to refuse to enter them. [citations omitted throughout].

UC - willful misconduct - public challenge of employer action

Kelly v. UCBR - Cmwlth. Court - June 24, 2011 - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1924CD10_6-24-11.pdf

Claimant's questioning of an employer decision in a non-abusive, non-abrasive and non-vulgar (“[d]oes everyone hear this, I am against this.”) held not to be willful misconduct, even though it took place in a waiting room where there were some employer patients. See Luketic v. UCBR, 386 A.2d 1045 (Pa. Cmwlth. 1978), and Dincher v. UCBR, 502 A.2d 797 (Pa. Cmwlth. 1986).

Luketic - A poor attitude alone does not equal willful misconduct, especially where the claimant’s language was neither abusive nor vulgar and appeared justified in light of her experience. We refused to hold that rais[ing] in a non-abusive fashion what under the circumstances was a legitimate question … even coupled with a finding of a bad attitude, can reasonably be classified as willful misconduct under the [Law].

Dincher - The “mere challenge of the employer’s veracity absent vulgar and offensive language was not willful misconduct….” Dincher, 502 A.2d at 799. We also held that the “mere talking back to a supervisor absent abusive language is not willful misconduct for purposes of the [Law].” Id. at 800.

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This case is also summarized at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable.

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

UC - voluntary quit - medical reasons

Woolf Steel, Inc. v. UCBR - Cmwlth. Court - June 24, 2011 - unpublished memoradum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/2164CD10_6-24-11.pdf

The court rejected an employer appeal and upheld that grant of benefits to claimant, who had serious surgery which temporarily limited his ability to do his former, heavy work. Claimant fully informed employer about his limitations and was available for work consistent with those limitations.

Here is some of the court's discussion of the issues.

In Genetin v. UCBR, 499 Pa. 125, 451 A.2d 1353 (1982), our Supreme Court set forth the standard applicable where a claimant asserts medical reasons for his voluntary quit. Genetin provides that in such cases a claimant may meet his burden under section 402(b) of the Law by showing: (1) adequate health reasons existed to justify the voluntary termination; (2) the claimant communicated such reasons to the employer; and (3) the claimant is available to work if reasonable accommodations can be made. In Genetin, the court also stated that “once [the employee] has communicated his medical problem to the employer and explained his inability to perform the regularly assigned duties, an employee can do no more.” Id., 499 Pa. at 131, 451 A.2d at 1356.

Our Supreme Court rejected the notion that an employee must specifically request a transfer to a more suitable position. Instead, the court in Genetin held that where an employee voluntarily terminates employment because of a medical condition, the employee must establish that he can no longer perform his regular duties due to the medical condition, inform his employer that he can no longer perform his regular duties, and be available for suitable work consistent with his medical condition. Pursuant to the Supreme Court’s holding, if the employee does this in good faith, it is up to the employer to provide suitable work. Genetin, 499 Pa. 125, 451 A.2d 1353 (1982).

A claimant need not always produce expert medical testimony or medical documentation to satisfy his burden to present “competent evidence”: The distinction between ‘competent evidence’ ... and the ‘competent medical evidence’ requirement articulated in the opinion of the court below is vital. The former is a broader standard which allows an applicant to meet the burden with his own testimony and supporting documents. The latter is a more stringent requirement which could result in the denial of benefits simply because an applicant fails to provide the expert testimony of a physician even where such testimony would be superfluous or cumulative. The broader standard more effectively comports with this Court's view that the Unemployment Compensation Law must be liberally and broadly construed. Steffy v. UCBR, 453 A.2d 591, 594 (Pa. 1982) (emphasis added). This Court subsequently interpreted Steffy to allow a claimant to satisfy his or her burden of production by presenting her testimony and/or supporting documents. Lee Hospital v. UCBR, 637 A.2d 695 (Pa. Cmwlth. 1994); Judd v. UCBR, 496 A.2d 1377 (Pa. Cmwlth. 1985). In Goettler Distributing, Inc. v. UCBR, 508 A.2d 630 (Pa. Cmwlth. 1986), this Court expressly concluded that the disjunctive “and/or” interpretation of Steffy was the better analysis and was consistent with the broad and liberal interpretation of the Law. Philadelphia Parking Authority v. UCBR, 1 A.3d 965, 968-969 (Pa. Cmwlth. 2010)

Claimant provided sufficient credible evidence to establish that adequate health reasons existed causing him to voluntarily terminate his employment, that he tried to communicate these concerns to Employer, and that he was available to work. Therefore, the Board properly concluded that Claimant is not ineligible for benefits under sections 401(d)(1) or 402(b) of the Law. Accordingly, we affirm.

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This case is also summarized at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable.

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

UC - self-employment - attorney - sec. 402(h)

Kress v. UCBR - Cmwlth. Court - June 23, 2011



http://www.pacourts.us/OpPosting/Cwealth/out/2500CD10_6-23-11.pdf



Claimant, an attorney, was hired by a law firm to do Criminal Justice Act (CJA) cases, and applied for UC benefits after he was laid off.



Under Section 402(h) of the Law, an employee who engages in self-employment is ineligible for benefits unless (1) the self-employment began prior to the termination of the employee’s full-time employment; (2) the self-employment continued without substantial change after the termination; (3) the employee remained available for full-time employment; and (4) the self-employment was not the primary source of the employee’s livelihood. O’Hara v. UCBR, 648 A.2d 1311 (Pa. Cmwlth. 1994). The claimant bears the burden of proving that his activity is non-disqualifying under Section 402(h). Id. Claimant contends that the Board erred in denying him benefits because he met all of the above criteria. We agree.



- Claimant’s activities in respect to the CJA clients remained the same before, during and after his employment with Employer. Consequently, Claimant met the first prong of the test.



- Because the test is whether the claimant has worked on the activity for significantly more hours than he did prior to the separation, and the only testimony available was from Claimant who stated that his workload remained roughly the same, Claimant also met this prong of the test.



- Because Claimant testified that he was available for full-time employment and was looking for a job at a law firm, he met the third prong of the test.



- Clearly, the sideline job was not a primary source of income at $10,000 a year compared to his law firm job paying $65,000 a year, and Claimant met the fourth prong as well.

Because Claimant proved that his CJA activities were nondisqualifying under Section 402(h), Claimant is entitled to unemployment compensation benefits.

UC - willful misconduct - absenteeism

Abdellah v. UCBR - Cmwlth. Court - June 23, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/2166CD10_6-23-11.pdf

Absenteeism, alone, “is not a sufficient basis for denial of unemployment benefits,” even though it may constitute grounds for discharge. Runkle v. UCBR, 521 A.2d 530, 531 (Pa. Cmwlth. 1987).

In order for absenteeism to constitute willful misconduct, an additional element is necessary. Id. Factors that are considered in leading to a showing of absenteeism constituting willful misconduct are: “(1) [e]x-cessive absences, (2) [f]ailure to notify the employer in advance of the absence, (3) [l]ack of good or adequate cause for the absence, (4) [d]isobedience of existing company rules, regulations, or policy with regard to absenteeism, [and] (5) [d]isregard of warnings regarding absenteeism.” Petty v. UCBR, 325 A.2d 642, 643 (Pa. Cmwlth. 1974).

When an employer fires a claimant for a pattern of absenteeism, the claimant will be eligible for benefits if the final absence was justified. See, e.g., Runkle, 521 A.2d at 531 (holding claimant eligible for benefits because there was substantial evidence to show claimant was ill on her last absences); Haigler v. Commonwealth, 462 A.2d 954, 955 (Pa. Cmwlth. 1982) (holding claimant ineligible for benefits because he failed to justify his last absence).

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UC - indpt. contractor - campaign manager for political candidate

http://www.pacourts.us/OpPosting/Cwealth/out/2098CD10_6-21-11.pdf

Cmwlth Court - June 21, 2011

Barrett, campaign manager for Tracy, candidate for Lt. Gov. of Illinois, held to be an independent contractor.

PFA - contempt - multiple contempts - sentence of > 6 months proper

Hill v. Randolph - Pa. Super. - June 1, 2011

http://www.pacourts.us/OpPosting/Superior/out/s80015_10.pdf

Defendant was convicted of two counts of indirect criminal contempt for violations of a PFA order, arising out of a single incident. One contempt involved entry into plaintiff's home; the other involved his physical abuse of her. The trial court found defendant guilty and sentenced him to 6 months imprisonment on each contempt charge, for a total imprisonment of one year.

The court rejected defendant's challenges to an aggregate sentence of more than 6 months, the maximum sentence for a PFA violation, stating "We infer nothing in the PFA Act1 to bar prosecution of multiple ICC charges arising from different violations of the same order, nor are double jeopardy or trial-by-jury rights implicated in the facts before us. Accordingly, we affirm."

Sec. 1983 - free speech - citizen v. employee

Tatum v. Phila. Housing Authority - ED Pa. - May 26, 2011

http://www.paed.uscourts.gov/documents/opinions/11D0586P.pdf

Section 1983 provides a remedy for vindicating federal substantive rights. . . .The Court has recognized “an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” . . .To allege a Section 1983 violation against multiple defendants, the plaintiff “must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”

Because Section 1983 is a “remedy for deprivations of rights established elsewhere in the Constitution or federal laws,” “the initial question in a section 1983 action is whether the plaintiff has alleged a deprivation of a constitutional right at all.”. . . Here, Plaintiff alleges a constitutional deprivation of his First Amendment rights resulting in his termination from PHA.

The Third Circuit employs the following three-step burden-shifting analysis to a public employee’s Section 1983 claim of retaliation for engaging in protected activity under the First
Amendment: (1) the employee must demonstrate that his/her speech is protected, that is, it addresses a matter of public concern and the “employee’s interest in the speech outweighs” the employer’s countervailing interest “in promoting workplace efficiency and avoiding workplace disruption” (i.e., the balancing test established in Pickering v. Bd. of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed.2d 811 (1968)); (2) the employee must prove that his/her speech was “a substantial or motivating factor” in the retaliatory action against him/her, which, if proven; (3) shifts the burden to the employer to prove that the “allegedly retaliatory action would have been taken absent the protected [speech].” Reilly v. City of Atlantic City, 532 F.3d 216, 224 (3d Cir. 2008) (citation omitted).

The governing Supreme Court case addressing whether a public employee’s speech is protected under the First Amendment is Garcetti v. Ceballos, 547 U.S. 410 (2006). The Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 421. In Garcetti, the plaintiff, Richard Ceballos, a deputy district attorney, investigated inaccuracies in an affidavit used to obtain a search warrant in a pending case, communicated his concerns to his supervisors regarding the matter, and wrote a memorandum recommending dismissal of the case. Garcetti, 547 U.S. at 413-14. Ceballos testified on behalf of the defense regarding his concerns, and was demoted and transferred shortly after testifying. Id. at 414-15. Ceballos contended that his speech was constitutionally protected and the retaliation was unlawful. Id. at 415. The Supreme Court determined that Ceballos wrote the memorandum “pursuant to official responsibilities” and therefore had no claim for unconstitutional retaliation. Id. at 424.

Following Garcetti, the Third Circuit held that: [a] public employee’s statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have “an adequate justification for treating the employee differently from any other member of the general public” as a result of the statement he made. . . The Court will consider the “content, form, and context of a given statement” to determine whether a government employee’s expressive conduct involves a “matter of public concern.”

immigration - pre-emption - federal immigration law does not pre-empt state law relating to employment of "unauthorized aliens" -

http://www.supremecourt.gov/opinions/10pdf/09-115.pdf (69 pp.)

SUPREME COURT OF THE UNITED STATES
Syllabus
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA ET AL. v. WHITING ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 09–115. Argued December 8, 2010—Decided May 26, 2011

The Immigration Reform and Control Act (IRCA) makes it “unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee,for employment in the United States an alien knowing the alien is an unauthorized alien.” . . . Employers that violate that prohibition may be subjected to federal civil and criminal sanctions. IRCA also restricts the ability of States to combat em-ployment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or re-cruit or refer for a fee for employment, unauthorized aliens.”. . . .IRCA also requires employers to take steps to verify an employee’seligibility for employment. In an attempt to improve that verification process in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Congress created E-Verify—an internet-based system employers can use to check the work authorization status of employees.

Against this statutory background, several States have recently enacted laws attempting to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws.” Arizona is one of them. The Legal Arizona WorkersAct provides that the licenses of state employers that knowingly orintentionally employ unauthorized aliens may be, and in certain cir-cumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify. The Chamber of Commerce of the United States and various busi-ness and civil rights organizations (collectively Chamber) filed this federal preenforcement suit against those charged with administering the Arizona law, arguing that the state law’s license suspensionand revocation provisions were both expressly and impliedly pre-empted by federal immigration law, and that the mandatory use of E-Verify was impliedly preempted. The District Court found that the plain language of IRCA’s preemption clause did not invalidate the Arizona law because the law did no more than impose licensing conditions on businesses operating within the State. Nor was the state law preempted with respect to E-Verify, the court concluded, because although Congress had made the program voluntary at the nationallevel, it had expressed no intent to prevent States from mandatingparticipation. The Ninth Circuit affirmed.

Held: The judgment is affirmed. 558 F. 3d 856, affirmed. THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I and II–A, concluding that Arizona’s licensing law is not expressly preempted.Arizona’s licensing law falls well within the confines of the author-ity Congress chose to leave to the States and therefore is not ex-pressly preempted. While IRCA prohibits States from imposing “civilor criminal sanctions” on those who employ unauthorized aliens, it preserves state authority to impose sanctions “through licensing and similar laws.” . . . That is what the Arizona law does—it instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens. The definition of “license” contained in the Arizona statute largely parrots the definition of “license” that Congress codified in the Administrative Procedure Act (APA).The state statute also includes within its definition of “license” documents such as articles of incorporation, certificates of partnership, and grants of authority to foreign companies to transact business in the State. . . .each of which has clear counterparts in APA and dictionary definitions of the word “license.” And even if a law regulating articles of incorporation and the like is not itself a “licensing law,” it is at the very least “similar” to one, and therefore comfortably within the savings clause.

The Chamber’s argument that the Arizona law is not a “licensing” law because it operates only to suspend and revoke licenses rather than to grant them is without basis in law, fact, or logic. The Chamber contends that the savings clause should apply only tocertain types of licenses or only to license revocation following an IRCA adjudication because Congress, when enacting IRCA, eliminated unauthorized worker prohibitions and associated adjudication procedures in another federal statute. But no such limits are even remotely discernible in the statutory text. The Chamber’s reliance on IRCA’s legislative history to bolster its textual and structural arguments is unavailing given the Court’sconclusion that Arizona’s law falls within the plain text of the savings clause. Pp. 9–15.

THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO, concluded in Part II–B:
The Arizona licensing law is not impliedly preempted by federal law. At its broadest, the Chamber’s argument is that Congress intended the federal system to be exclusive. But Arizona’s procedures simply implement the sanctions that Congress expressly allowed theStates to pursue through licensing laws. Given that Congress spe-cifically preserved such authority for the States, it stands to reasonthat Congress did not intend to prevent the States from using appro-priate tools to exercise that authority.

And here Arizona’s law closely tracks IRCA’s provisions in all material respects. For example, it adopts the federal definition of who qualifies as an “unauthorized alien,” . . . ; provides that state investiga-tors must verify the work authorization of an allegedly unauthorized alien with the Federal Government, making no independent determination of the matter, . . . and requires a state court to “consider only the federal government’s determination,” . . . .

The Chamber’s more general contention that the Arizona law ispreempted because it upsets the balance that Congress sought to strike in IRCA also fails. The cases on which the Chamber relies in making this argument all involve uniquely federal areas of interest. . . Regulating in-state businesses through licensing laws is not such an area. And those cases all concern state actions that directly interfered with the operation of a federal program. . . .There is no similar interference here.

The Chamber asserts that employers will err on the side of discrimination rather than risk the “ ‘business death penalty’ ” by “hiring unauthorized workers.” That is not the choice. License termination is not an available sanction for merely hiring unauthorizedworkers, but is triggered only by far more egregious violations. And because the Arizona law covers only knowing or intentional violations, an employer acting in good faith need not fear the law’s sanctions. Moreover, federal and state antidiscrimination laws protect against employment discrimination and provide employers with a strong incentive not to discriminate. Employers also enjoy safe harbors from liability when using E-Verify as required by the Arizonalaw. The most rational path for employers is to obey both the law barring the employment of unauthorized aliens and the law prohibiting discrimination. There is no reason to suppose that Arizona employers will choose not to do so. Pp. 15–22.

THE CHIEF JUSTICE delivered the opinion of the Court with respect to Part III–A, concluding that Arizona’s E-Verify mandate is not impliedly preempted.
Arizona’s requirement that employers use E-Verify is not impliedlypreempted. The IIRIRA provision setting up E-Verify contains no language circumscribing state action. It does, however, constrain federal action: absent a prior violation of federal law, “the Secretaryof Homeland Security may not require any person or . . . entity” outside the Federal Government “to participate in” E-Verify. IIRIRA, §402(a), (e). The fact that the Federal Government may require the use of E-Verify in only limited circumstances says nothing aboutwhat the States may do. The Government recently argued just thatin another case and approvingly referenced Arizona’s law as an ex-ample of a permissible use of E-Verify when doing so.

Moreover, Arizona’s use of E-Verify does not conflict with the federal scheme. The state law requires no more than that an employer, after hiring an employee, “verify the employment eligibility of the employee” through E-Verify. . . . And the consequences of not using E-Verify are the same under the state and federal law—an employer forfeits an otherwise available rebuttable presumption of compliance with the law. Pp. 23–24.

THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO, concluded in Part III–B:
Arizona’s requirement that employers use E-Verify in no way obstructs achieving the aims of the federal program. In fact, the Gov-ernment has consistently expanded and encouraged the use of E-Verify, and Congress has directed that E-Verify be made available inall 50 States. And the Government has expressly rejected the Cham-ber’s claim that the Arizona law, and those like it, will overload the federal system. Pp. 24–25.

ROBERTS, C. J., delivered the opinion of the Court, except as to PartsII–B and III–B. SCALIA, KENNEDY, and ALITO, JJ., joined that opinion in full, and THOMAS, J., joined as to Parts I, II–A, and III–A and con-curred in the judgment. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion. KAGAN, J., took no part in the consideration or decision of the case.

UC- appeal - Board reversal of referee overturned - Treon, et al

Dommes v. UCBR - May 24, 2011 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1590CD10_5-24-11.pdf

Claimant quit his job because of work-related stress and anxiety caused by harrassment by fellow employees. Claimant presented letters from a psychologist and a physician at the referee hearing documenting his claims. The letter from a licensed psychologist recommended that Claimant not return to work for Employer, stating that, if he did, it “would be done at the jeopardy of his mental and physical health.” The letter Claimant’s physician also recommended that Claimant “cease work under the current conditions in order to aid in his medical and psychological care."

Based on this evidence, the referee found that:

(1) “[C]laimant became upset and began manifesting physical signs of stress and anxiety, such as nausea and sweating, and consulted with his physician,”; (2) “[C]aimant’s physician advised the claimant to quit his employment with [Employer],” and (3) “[n]o other alternatives were available to [Claimant] prior to quitting,” The referee stated as follows: Based upon the testimony provided and the competent evidence contained in the record, the referee finds and concludes that the claimant had good cause for quitting due to the stress and anxiety which was manifesting itself through nausea and sweating. Additionally, the referee resolves issues of credibility in favor of the claimant.

Employer appealed to the UCBR, which reversed. In doing so, the UCBR “discredit[ed] [Claimant’s] testimony, as well as the opinion of his doctor, that [Claimant] was compelled to quit his employment due to health issues.” The UCBR gave no reason for its disregard of the referee’s contrary finding.

Claimant argues that the UCBR erred in disregarding the referee’s finding that Claimant needed to end his employment for health reasons without stating its reasons for doing so. We agree.

Although the weight to be given the evidence and the credibility to be afforded the witnesses are within the province of the UCBR as the fact-finder, the UCBR is not free to ignore the overwhelming evidence in favor of a contrary result not supported by the evidence. Borello v. UCBR, 490 Pa. 607, 618-19, 417 A.2d 205, 211 (1980). “The [UCBR] may not . . .simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its reasons for doing so.” Treon v. UCBR, 499 Pa. 455, 461, 453 A.2d 960, 962 (1982). Where the UCBR does so, the remedy is to reinstate the finding of the referee. Id. at 461, 453 A.2d at 962-63. Here, the UCBR disregarded the referee’s finding that Claimant needed to quit his job with Employer for health reasons. The finding is supported by consistent and competent evidence, uncontradicted in the record, and the UCBR offered no reason for its disregard of that finding. Thus, under Treon, the referee’s finding is reinstated.

Claimant next argues that the UCBR erred in concluding that he lacked a necessitous and compelling reason to quit. We agree. Health problems may amount to a compelling reason to quit when the claimant offers competent testimony that adequate health reasons existed to justify the voluntary termination, that the claimant informed the employer of the health problems, and that the claimant remained available to work if employer made reasonable accommodations. Genetin v. UCBR, 499 Pa. 125, 130-131, 451 A.2d 1353, 1356 (1982). Once the employee communicates his health problems to the employer, he can do no more. Id. at 131, 451 A.2d at 1356. The employer is responsible for contacting the employee and offering him suitable work; to insist that the employee initiate a quest for an alternative position would require a meaningless ritual. Id. If the employee declines such work, the employee will be ineligible for benefits. Id. at 132, 451 A.2d at 1356. Here, Claimant offered competent evidence that he was suffering from health problems as a result of the verbal abuse he suffered at work. Claimant informed Employer about the verbal abuse and its effect on his health in the fourpage complaint he gave to Employer two weeks before Claimant quit. Employer never addressed the complaint, never contacted Claimant regarding an investigation and never offered Claimant suitable employment.

Accordingly, we reverse that portion of the UCBR’s order denying benefits.

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The claimant's counsel is a private attorney from Scranton, Chris Cullen, who has filed a motion to publish, along with that of David Hill of PLA. Atty. Cullen notes that the Board is asking the Supreme Court to review and reverse.

This opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

foreclosure - HSBC affidavits "inherently untrusworthy" - business-record exception not established

HSBC v. Murphy - Maine Supreme Judicial Court - May 19, 2011

http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me59mu.pdf

Because we determine that the affidavits submitted by HSBC are inherently untrustworthy and, therefore, do not establish the foundation for admission of the attached documents as business records pursuant to M.R. Evid. 803(6), we vacate the judgment without reaching the substantive issues raised.

HSBC’s statement of material facts was supported by record references to an affidavit of John Gonzalez, who was identified in the affidavit as a Foreclosure Manager at HSBC. In its statement of material facts, HSBC asserted that it was the “holder of the Note and Mortgage” by virtue of the assignment from MERS and through “endorsement and delivery of the aforesaid Note from Calusa.” However, there was no endorsement on the face of, or appended to, the copy of the note attached to the Gonzalez affidavit or the complaint.

In residential mortgage foreclosure actions, certain minimum facts must be included in a mortgage holder’s statement of material facts on summary judgment.. . . We have repeatedly emphasized “the importance of applying summary judgment rules strictly in the context of residential mortgage foreclosures.” . . . We have also repeatedly emphasized that a party’s assertion of material facts must be supported by record references to evidence that is of a quality that would be admissible at trial. . . . This qualitative requirement is particularly important in connection with mortgage foreclosures where the affidavits submitted in support of summary judgment are commonly signed by individuals who claim to be custodians of the lender’s business records. Thus, the information supplied by the affidavits is largely derivative because it is drawn from a business’s records, and not from the affiant’s personal observation of events.

It is, perhaps, stating the obvious that an affidavit of a custodian of business records must demonstrate that the affiant meets the requirements of M.R. Evid. 803(6)7 governing the admission of records of regularly conducted business. A business’s records kept in the course of its regularly conducted business may be admissible notwithstanding the hearsay rule if the necessary foundation is established “by the testimony of the custodian or other qualified witness.” M.R. Evid. 803(6). “A qualified witness is one who was intimately involved in the daily operation of the [business] and whose testimony showed the firsthand nature of his knowledge.”. . . The foundation that the custodian or qualified witness must establish is four-fold:

(1) the record was made at or near the time of the events reflected in the record by, or from information transmitted by, a person with personal knowledge of the events recorded therein;

(2) the record was kept in the course of a regularly conducted business;

(3) it was the regular practice of the business to make records of the type involved; and

(4) no lack of trustworthiness is indicated from the source of information from which the record was made or the method or circumstances under which the record was prepared.

In this case, the affidavits submitted by HSBC contain serious irregularities that make them inherently untrustworthy [noting discrepancies in dates, etc.]. . . .Because the information contained in the affidavits, and the business records attached to them, are not of a quality that would be admissible at trial, the court erred by granting a summary judgment.

forum selection clause

NJ Dept. of Treasure v. Merrill Lynch - 3d Cir. - May 18, 2011

http://www.ca3.uscourts.gov/opinarch/094676p.pdf

The court held that a forum selection clause that provides: "exclusive jurisdiction . . . shall lie in the appropriate courts of the State [of] New Jersey" should be interpreted to be a waiver of the right to remove the litigation to the federal district courts in New Jersey, rejecting defendant's argument that the clause contemplates jurisdiction in either the state or the federal courts located in New Jersey.

The court noted that

- the "parties in this case, sophisticated organizations both, were represented by counsel during the negotiation and adoption of the forum selection clause at issue." While contra proferentem may be the general rule, "[a]pplication of the rule may be . . . limited by the degree of sophistication of the contracting parties or the degree to which the contract was negotiated." The doctrine of construing a document against the interests of the party who drafte dit is "inapplicable where parties, both sophisticated entities, had equal bargaining power in drafting agreement."

- every Court of Appeals confronted with a similar forum selection clause "ha[d] ruled that the reference to courts of the state . . . limits jurisdiction to state rather than federal tribunals." The "vast majority of our sister circuits have held that forum selection clauses like the one at issue here required remand to the state court."

- a defendant can contractually waive his right to remove . . . an action brought . . . in a state court. Such waivers are usually upheld if they are reasonable and voluntary and if their enforcement is not inconsistent with public policy. A forum selection clause is unreasonable where party makes "strong showing" that inconvenience of designated forum will effectively deprive him of day in court or that clause resulted from fraud or duress.

Pennsylvania Supreme Court - internal operating procedures

Posted Today! In Re: Amendment of Internal Operating Procedures of the Supreme Court; No. 365 JAD
Opinion By: per curiam
Posted By: W.D. Prothonotary
	Date Rendered: 5/18/2011
	Date Posted: 5/19/2011
	Opinion Type: Rules	365jad.pdf
	Date Rendered: 5/18/2011
	Date Posted: 5/19/2011
	Opinion Type: Rules	365jad.attach.pdf

consumer - atty. fees - reasonable rate - CLS survey v. Laffey

Williams v. NCO Financial Systems - ED Pa - May 10, 2011

http://www.paed.uscourts.gov/documents/opinions/11D0518P.pdf

contracts - tortious interference - truthful statements not actionable

Walnut Street Associates v. Brokerage Concept, Inc. - Pa. Supreme Court - May 13, 2011

http://www.pacourts.us/OpPosting/Supreme/out/J-57-2010mo.pdf

Restatement (Second) of Torts § 772(a) applies in Pennsylvania to preclude an action for tortious interference with contractual relations where it is undisputed that the defendant's interfering statements were truthful.FN1

FN1.
One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other's contractual relation, by giving the third person
(a) truthful information, or
(b) honest advice within the scope of a request for the advice.
Restatement (Second) of Torts § 772 (1979)

UC - unrepresented claimant - duty of referee to develop record

Bellone v. UCBR - May 11l. 2011, - Cmwlth. Court

http://www.pacourts.us/OpPosting/Cwealth/out/1959CD10_5-11-11.pdf

The Department of Labor’s regulation describes how a hearing must be conducted:

(a) In any hearing the tribunal may examine the parties and their witnesses. Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties.

34 Pa. Code §101.21(a).

This Court has stated:

The referee has a responsibility, therefore, to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed to ‘insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits.’ … The referee, of course, need not advise a party on evidentiary questions or on specific points of law but must act reasonably in assisting in the development of the necessary facts, and any failure to develop an adequate record must be prejudicial to the claimant and not mere harmless error or else a reversal will not be found. Bennet v. UCBR, 445 A.2d 258, 259-260 (Pa. Cmwlth. 1982) (emphasis, citation and footnote deleted). (quoting Robinson v. UCBR, 431 A.2d 378, 380 (Pa. Cmwlth. 1981)).

_____________________________________

This case is also summarized at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable.

Citing unreported and single-judge Commonwealth Court decisions - 210 Pa. Code § 67.55 (January 1, 2011) http://www.pacode.com/secure/data/210/chapter67/chap67toc.html#67.55 Parties may cite an unreported panel decision of the Commonwealth Court issued after January 15, 2008 for its persuasive value, but not as binding precedent.

welfare - reimbursement - delayed wages

Kerr v. DPW - Cmwlth. Court - May 3, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/2447CD10_5-3-11.pdf

DPW paid a "diversion benefit" to a state employee to compensate him for delayed payment of wages during a state budget impasse. The employee signed a reimbursement agreement. Employee was later fully reimbursed for his work during the period.

The court held that the "diversion benefit" came under 55 Pa. Code §257.24(e)(3) dealing with reimbursement for assistance received for delayed wages. The regulations says:

Delayed wages. Reimbursement is required of assistance granted, pending the receipt of wages not paid on the
normal payday. Wages received when normally due are considered as income to be adjusted to the grant under
Chapter 183 (relating to income). The form for acknowledging reimbursement from delayed wages is Form PA 176-K

(Agreement and Authorization to Pay Claim) as set forth in subsection (f).

Section 257.24(e)(3) shows that to establish a valid reimbursement claim against Petitioner, the Commonwealth only needed to prove that: (1) Petitioner was granted public assistance; (2) the assistance was granted pending the receipt of delayed wages; and (3) Petitioner’s household signed the Claim form. The Department met its burden by showing that Petitioner received the $1,767 temporary assistance, that he received this assistance because his wages had been delayed due to the budget impasse, and that Petitioner’s fiancée signed the Claim form.

The court also rejected the claim that the Diversion Program was not part of TANF and thus not subject to TANF reimbursement rules.

11th Amendment - immunity - acceptance of state money

http://www.supremecourt.gov/opinions/10pdf/08-1438.pdf

SUPREME COURT OF THE UNITED STATES

SOSSAMON v. TEXAS ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 08–1438. Argued November 2, 2010—Decided April 20, 2011

After this Court held that the Religious Freedom Restoration Act of1993 was unconstitutional as applied to state and local governmentsbecause it exceeded Congress’ power under §5 of the Fourteenth Amendment, see City of Boerne v. Flores, 521 U. S. 507, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) pursuant to its Spending Clause and Commerce Clause authority.

RLUIPA targets two areas of state and local action: land–use regulation, RLUIPA §2, 42 U. S. C. §2000cc, and restrictions on the religious exercise of institutionalized persons, RLUIPA §3, §2000cc–1. It also provides an express private cause of action for “appropriate relief against a government,” §2000cc–2(a),including, inter alia, States, their instrumentalities and officers, and persons acting under color of state law, §2000cc–5(4)(A). Petitioner Sossamon, a Texas prison inmate, sued respondents, theState and prison officials, seeking injunctive and monetary relief un-der RLUIPA for prison policies that prevented inmates from attend-ing religious services while on cell restriction for disciplinary infractions and that barred use of the prison chapel for religious worship.Granting respondents summary judgment, the District Court held that sovereign immunity barred Sossamon’s claims for monetary re-lief.

The Fifth Circuit affirmed, holding that the statutory phrase “appropriate relief against a government” did not unambiguously notify Texas that its acceptance of federal funds was conditioned on a waiver of sovereign immunity to claims for monetary relief.

Held: States, in accepting federal funding under the Religious Land Use and Institutionalized Persons Act of 2000 do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA. Pp. 4–14.


(a) Sovereign immunity principles enforce an important constitutional limitation on the power of the federal courts. See Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 98. This Court has consistently made clear that “federal jurisdiction over suits against unconsenting States ‘was not contemplated by the Constitu-tion when establishing the judicial power of the United States.’ ” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54. A State, however, may choose to waive its immunity. Clark v. Barnard, 108 U. S. 436, 447–448. The “ ‘test for determining whether [it has done so] is a stringent one.’ ” College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 675. The State’s consent to suit must be “unequivocally expressed” in the relevant statute’s text. Pennhurst, supra, at 99. A waiver “will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Peña, 518 U. S. 187, 192. Pp. 4–6.

(b) RLUIPA’s authorization of “appropriate relief against a government,” is not an unequivocal expression of state consent. Pp. 6–10.

(1) “Appropriate relief” is open-ended and ambiguous about the relief it includes. “Appropriate” is inherently context-dependent.And the context here—where the defendant is a sovereign—suggests, if anything, that monetary damages are not “suitable” or “proper.” See Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U.S. 743, 765. Further, where a statute is susceptible of multipleplausible interpretations, including one preserving immunity, this Court will not consider a State to have waived its sovereign immu-nity. Sossamon’s and Texas’ conflicting plausible arguments aboutwhether immunity is preserved here demonstrate that “appropriaterelief” in RLUIPA is not so free from ambiguity that the Court mayconclude that the States, by receiving federal funds, have unequivocally expressed intent to waive their immunity. Pp. 6–9.

(2) The Court’s use of the phrase “appropriate relief” in Franklin v. Gwinnett County Public Schools, 503 U. S. 60, and Barnes v. Gorman, 536 U. S. 181, does not compel a contrary conclusion. In those cases, where there was no express congressional intent to limit reme-dies available against municipal entities under an implied right ofaction, the Court presumed that compensatory damages were avail-able. Franklin, supra, at 73. But that presumption is irrelevant toconstruing the scope of an express waiver of sovereign immunity,where the question is not whether Congress has given clear directionthat it intends to exclude a damages remedy, but whether it hasgiven clear direction that it intends to include a damages remedy. Pp. 9–10.

(c) Sossamon mistakenly contends that Congress’ enactment of RLUIPA §3 pursuant to the Spending Clause put the States on notice that they would be liable for damages because Spending Clause legislation operates as a contract and damages are always available for abreach of contract. While acknowledging the contract-law analogy,this Court has been clear “not [to] imply . . . that suits under Spending Clause legislation are suits in contract, or that contract-law principles apply to all issues that they raise,” Barnes, supra, at 188, n. 2, or to rely on that analogy to expand liability beyond what would exist under nonspending statutes, much less to extend monetary liability against the States. Applying ordinary contract principles here wouldalso make little sense because contracts with a sovereign are unique: They do not traditionally confer a right of action for damages to enforce compliance. More fundamentally, Sossamon’s implied-contract remedy cannot be squared with the rule that a sovereign immunity waiver must be expressly and unequivocally stated in the relevant statute’s text. Pp. 10–12.

(d) Sossamon also errs in arguing that Texas was put on notice that it could be sued for damages under RLUIPA by §1003 of the Rehabilitation Act Amendments of 1986, which expressly waives state sovereign immunity for violations of “section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance,” 42 U. S. C. §2000d–7. Even if such a residual clause could constitute an unequivocal textual waiver, RLUIPA §3—which prohibits “substantial burden[s]” on reli-gious exercise—is not unequivocally a “statute prohibiting discrimination” within §1003’s meaning. All the statutory provisions enumerated in §1003 explicitly prohibit discrimination; a State might reasonably conclude that the residual clause, strictly construed, covers only provisions using the term “discrimination.” Pp. 12–14.

560 F. 3d 316, affirmed.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, GINSBURG, and ALITO, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which BREYER, J., joined. KAGAN, J., took no part in the consideration or decision of the case.

Eleventh Amendment - Ex parte Young, etc.

VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY v. STEWART, COMMISSIONER,

http://www.supremecourt.gov/opinions/10pdf/09-529.pdf

SUPREME COURT OF THE UNITED STATES

Syllabus

Argued December 1, 2010—Decided April 19, 2011

Together, the Developmental Disabilities Assistance and Bill of RightsAct of 2000 (DD Act) and the Protection and Advocacy for Individualswith Mental Illness Act (PAIMI Act) offer States federal money toimprove, inter alia, medical care for persons with developmental dis-abilities or mental illness. As a condition of funding, a State must establish a protection and advocacy (P&A) system “to protect and advocate [those individuals’] rights.” 42 U. S. C. §15043(a)(1).


A participating State may appoint either a state agency or a private nonprofit entity as its P&A system, but if a state agency it must have authority to litigate and freedom from the control of other state agen-cies or officers. Virginia has appointed an independent state agency, petitioner Virginia Office for Protection and Advocacy (VOPA), authorizing it to litigate to secure disabled individuals’ rights, free of executive-branch oversight; to operate independently of Virginia’s at-torney general; and to employ its own lawyers to sue on its behalf.


While investigating patient deaths and injuries at state mentalhospitals, VOPA asked respondents—state officials in charge of thosehospitals—to produce relevant patient records. Respondents refused,asserting that a state-law privilege shielded the records from disclo-sure. VOPA then filed suit in Federal District Court, seeking a declaration that respondents’ refusal to produce the records violated the DD and PAIMI Acts and an injunction requiring respondents to produce the records and refrain in the future from interfering with VOPA’s right of access. Respondents moved to dismiss on the ground that they are immune from suit under the Eleventh Amendment, but the court held that the suit was permitted by the doctrine of Ex parte Young, 209 U. S. 123, which normally allows federal courts to award prospective relief against state officials for violations of federal law. The Fourth Circuit reversed, finding that Ex parte Young did not apply because the suit was brought by a state agency.

Held: Ex parte Young allows a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same State. Pp. 4–13.

(a) Absent a waiver of sovereign immunity by a State itself or avalid abrogation by Congress, federal courts may not entertain a pri-vate person’s suit against a State. Pp. 4–5.


(b) The doctrine of Ex parte Young, which establishes an importantlimitation on the sovereign-immunity principle, is accepted as necessary to “permit the federal courts to vindicate federal rights.” Pennhurst State School and Hospital v. Halderman, 465 U. S. 89. It rests on the premise that when a federal court commands a state official todo nothing more than refrain from violating federal law, he is not theState for sovereign-immunity purposes. It does not apply “when ‘the state is the . . . party in interest.’ ” Id., at 101. Pp. 5–6.


(c) Entertaining VOPA’s action is consistent with precedent and does not offend the distinctive interests protected by sovereign im-munity. Pp. 6–13.

(1) Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635, held that, in determining the Ex parte Young doctrine’s applica-bility, “a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’ ” Id., at 645. VOPA’s suit satisfies that inquiry. Respondents concede that the ac-tion would be proper were VOPA a private organization rather than a state agency. The “general criterion for determining when a suit is in fact against the sovereign is the effect of the relief sought,” Pennhurst, supra, at 107, not who is bringing the lawsuit. This Court ap-plied that criterion in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, which held that an Indian Tribe could not invoke Ex parte Youngto bring what was essentially a quiet title suit that would “extinguish[Idaho’s] control over . . . lands and waters long deemed . . . an integral part of its territory.” Id., at 282. Respondents have advanced noargument that the relief sought here threatens a similar invasion of Virginia’s sovereignty. Pp. 7–9.

(2) Respondents claim that a State’s dignity is diminished when a federal court adjudicates a dispute between its components. But a State’s stature is not diminished to any greater degree when its ownagency sues to enforce its officers’ compliance with federal law than when a private person does so. Moreover, VOPA’s power to sue stateofficials is a consequence of Virginia’s own decision to establish a public P&A system. Not every offense to a State’s dignity constitutesa denial of sovereign immunity. The specific indignity against which sovereign immunity protects is the insult to a State of being haledinto court without its consent; that does not occur just because a suithappens to be brought by another state agency. Pp. 9–11.

(3) The apparent novelty of this suit is not likely a consequenceof past constitutional doubts. In order to invoke the Ex parte Youngexception, a state agency needs both a federal right that it possesses against its parent State and authority to sue state officials to enforcethat right, free from any internal state-government veto; such conditions rarely coincide. In any event, the principles undergirding the Ex parte Young doctrine support its extension to actions of this kind. Pp. 12–13.

568 F. 3d 110, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which KENNEDY, THOMAS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. KENNEDY, J., filed a concurring opinion, in which THOMAS, J., joined. ROBERTS, C. J., filed a dissenting opinion, in which ALITO, J., joined. KAGAN, J., took no part in the consideration or decision of the case.

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.