City of Pittsburgh v. Silver and Pittsburgh Post-Gazette - Cmwlth. Court - August 16, 2012
http://www.pacourts.us/OpPosting/Cwealth/out/1658CD11_8-16-12.pdf
In this open records case, the Commonwealth Court stated that
Article V, Section 10(c) of the Pennsylvania Constitution states that "[t]he Supreme Court shall have the power to prescribe general rules … for admission to the bar and to practice law." PA. CONST. art. V, §10(c). Thus, the Supreme Court is empowered by the Pennsylvania Constitution to exclusively govern the conduct of attorneys practicing law in this Commonwealth. Beyers v. Richmond, 594 Pa. 654, 665, 937 A.2d 1082, 1089 (2007); Commonwealth v. Stern, 549 Pa. 505, 510, 701 A.2d 568, 570 (1997).
The Supreme Court’s exclusive authority in this area is founded on the separation of powers between the branches of our Commonwealth’s government. Beyers, 594 Pa at 666-67, 937 A.2d at 1090-91.10 “[I]t is well settled that the power to regulate and define what constitutes the ‘practice of law’ is vested in the judiciary, and not in the executive or legislative branches of government.” Gmerek v. State Ethics Commission, 751 A.2d 1241, 1254 (Pa. Cmwlth. 2000), aff’d per curiam, 569 Pa. 579, 807 A.2d 812 (2002) (citation omitted). “Pursuant to [its] constitutional authority, [our Supreme] Court adopted the Rules of Professional Conduct and the Rules of Disciplinary Enforcement, which govern the conduct and discipline of attorneys.” Stern, 549 Pa. at 510, 701 A.2d at 571. See Pa. R.D.E. 103 (“The Supreme Court declares that it has inherent and exclusive power to supervise the conduct of attorneys who are its officers (which power is reasserted in Section 10(c) of Article V of the Constitution of Pennsylvania) and in furtherance thereof promulgates these rules….”).
Our Supreme Court’s sole jurisdiction over the practice of law includes the conduct of litigation, which necessarily includes lawyers’ efforts to settle litigation. See Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed sub nom. Bucheit v. Laudenberger, 456 U.S. 940 (1982). Allowing anyone to make ongoing requests under the Right to Know Law concerning all correspondence regarding settlement impermissibly intrudes into the conduct of litigation because it would lessen the frank exchange of information between the parties thereby adversely affecting the ability for litigation to settle. Moreover, the conduct of litigation could be affected because other parties to the litigation could constantly seek information about settlement discussions to discern the other parties’ belief as to the strength or weakness of their case. Allowing an administrative agency to order the release of documents would interfere with the courts’ sole control over the conduct of litigation.
Moreover, Pa. R.P.C. 1.6(a) states that "[a] lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation…."
Thursday, August 16, 2012
Monday, August 13, 2012
UC - willful misconduct - bad language - "moron"
Brown v. UCBR - Cmwlth. Court - August 9, 2012
http://www.pacourts.us/OpPosting/Cwealth/out/1618CD11_8-9-12.pdf
The Board held that two signs Claimant posted in the workplace were threatening in nature and very offensive because they used the word "moron."
Claimant acknowledged that he posted the signs but explained that he did so to prevent his co-workers from attempting to use an inoperable battery, which could be hazardous. Claimant testified that one of his work duties was to ensure that batteries needing repair were kept out of circulation and set aside in a designated space. Each out-of-service battery is labeled with a sign reading “Do Not Use.” When Claimant reported to work the week of February 13, 2011, he discovered that someone had torn the “Do Not Use” sign off of an out-of-service battery and had attempted to charge and use it before it had been repaired. Claimant reported the matter to his supervisor, who directed Claimant to return the battery to the out-of-service space, and Claimant did so. Claimant then placed two hand written signs on the battery that read “To the moron who can’t read do not use this, do not use this battery” and “Not charging you moron.”
An employee’s use of abusive, vulgar or offensive language with a superior is a form of insubordination that can constitute willful misconduct, even if the employer has not adopted a specific work rule prohibiting such language. Allen v. Unemployment Compensation Board of Review, 638 A.2d 448, 451 (Pa. Cmwlth. 1994). Where an employer has adopted a policy against the use of obscene or abusive language with other employees or customers, violation of that rule may constitute willful misconduct. Brandt v. Unemployment Compensation Board of Review, 537 Pa. 267, 643 A.2d 78 (1994). However, the context in which the profanity or other proscribed language is used must be considered. Bush v. Unemployment Compensation Board of Review, 409 A.2d 523, 524 (Pa. Cmwlth. 1980) (holding that in the absence of evidence on context, a claimant’s admission to using profanity "at times" did not constitute willful misconduct). In any case, the language used must be examined to determine whether it is, in modern parlance, abusive, vulgar or offensive. Cundiff v. Unemployment Compensation Board of Review, 489 A.2d 948, 951 (Pa. Cmwlth. 1985). Willful misconduct is not proven where use of the proscribed language was provoked or is de minimis in nature. Id. at 950.
Here, Claimant worked in a 770,000 square foot warehouse along with 605 employees. This was not a ladies club where the servers wear white gloves and speak in hushed tones. Employer produced no evidence that "moron" and words like it were not used and not tolerated at its facility. It is telling that when Claimant was called a "jackass" by his supervisor, no discipline was imposed on the speaker. The incident established that in Employer’s warehouse the use of offensive language, such as "jackass" and "moron," might require an apology but not a discharge. Notably, "jackass," a stronger word than "moron," was uttered in a more troubling context because it was directed by a supervisor to his subordinate. Management should be held to a higher standard of conduct. Claimant did not direct the term "moron" to his superior, which could be insubordination if unprovoked. Allen, 638 A.2d 448, 451. Indeed, Claimant did not direct "moron" to any specific individual or co-worker, as the Board itself acknowledges.
Because "moron" is neither a threatening word nor a word totally outside the bounds of what one might expect to encounter in a large and busy warehouse, we conclude that Claimant’s use of the word "moron" did not rise to the level of willful misconduct. Therefore, we reverse the Board. "Moron" was neither threatening nor far outside the bounds for what words might be spoken in a large and busy warehouse. Claimant did not commit willful misconduct. In addition, Claimant’s use of "moron" was de minimis and provoked by the dangerous negligence of some unknown co-worker who attempted to charge an inoperable battery. Cundiff, 489 A.2d at 951.
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This summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable and can be accessed without a password.
http://www.pacourts.us/OpPosting/Cwealth/out/1618CD11_8-9-12.pdf
The Board held that two signs Claimant posted in the workplace were threatening in nature and very offensive because they used the word "moron."
Claimant acknowledged that he posted the signs but explained that he did so to prevent his co-workers from attempting to use an inoperable battery, which could be hazardous. Claimant testified that one of his work duties was to ensure that batteries needing repair were kept out of circulation and set aside in a designated space. Each out-of-service battery is labeled with a sign reading “Do Not Use.” When Claimant reported to work the week of February 13, 2011, he discovered that someone had torn the “Do Not Use” sign off of an out-of-service battery and had attempted to charge and use it before it had been repaired. Claimant reported the matter to his supervisor, who directed Claimant to return the battery to the out-of-service space, and Claimant did so. Claimant then placed two hand written signs on the battery that read “To the moron who can’t read do not use this, do not use this battery” and “Not charging you moron.”
An employee’s use of abusive, vulgar or offensive language with a superior is a form of insubordination that can constitute willful misconduct, even if the employer has not adopted a specific work rule prohibiting such language. Allen v. Unemployment Compensation Board of Review, 638 A.2d 448, 451 (Pa. Cmwlth. 1994). Where an employer has adopted a policy against the use of obscene or abusive language with other employees or customers, violation of that rule may constitute willful misconduct. Brandt v. Unemployment Compensation Board of Review, 537 Pa. 267, 643 A.2d 78 (1994). However, the context in which the profanity or other proscribed language is used must be considered. Bush v. Unemployment Compensation Board of Review, 409 A.2d 523, 524 (Pa. Cmwlth. 1980) (holding that in the absence of evidence on context, a claimant’s admission to using profanity "at times" did not constitute willful misconduct). In any case, the language used must be examined to determine whether it is, in modern parlance, abusive, vulgar or offensive. Cundiff v. Unemployment Compensation Board of Review, 489 A.2d 948, 951 (Pa. Cmwlth. 1985). Willful misconduct is not proven where use of the proscribed language was provoked or is de minimis in nature. Id. at 950.
Here, Claimant worked in a 770,000 square foot warehouse along with 605 employees. This was not a ladies club where the servers wear white gloves and speak in hushed tones. Employer produced no evidence that "moron" and words like it were not used and not tolerated at its facility. It is telling that when Claimant was called a "jackass" by his supervisor, no discipline was imposed on the speaker. The incident established that in Employer’s warehouse the use of offensive language, such as "jackass" and "moron," might require an apology but not a discharge. Notably, "jackass," a stronger word than "moron," was uttered in a more troubling context because it was directed by a supervisor to his subordinate. Management should be held to a higher standard of conduct. Claimant did not direct the term "moron" to his superior, which could be insubordination if unprovoked. Allen, 638 A.2d 448, 451. Indeed, Claimant did not direct "moron" to any specific individual or co-worker, as the Board itself acknowledges.
Because "moron" is neither a threatening word nor a word totally outside the bounds of what one might expect to encounter in a large and busy warehouse, we conclude that Claimant’s use of the word "moron" did not rise to the level of willful misconduct. Therefore, we reverse the Board. "Moron" was neither threatening nor far outside the bounds for what words might be spoken in a large and busy warehouse. Claimant did not commit willful misconduct. In addition, Claimant’s use of "moron" was de minimis and provoked by the dangerous negligence of some unknown co-worker who attempted to charge an inoperable battery. Cundiff, 489 A.2d at 951.
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This summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable and can be accessed without a password.
Wednesday, August 08, 2012
UC - availability for work
Hellams v. UCBR - Cmwlth. Court - August 8, 2012 - unreported memorandum decision
http://www.pacourts.us/OpPosting/Cwealth/out/2491CD11_8-8-12.pdf
Woman who was caring for her husband was not available for work.
Section 401(d)(1) provides that in order to receive benefits, an employee must be "able to work and available for suitable work." 43 P.S. § 801 (d)(1). To establish availability for work, a claimant must be ready and able to accept employment, and be actually and currently attached to the labor force. Ruiz v. Unemployment Comp. Bd. of Review, 911 A.2d 600 (Pa. Cmwlth. 2006). It is the claimant’s burden to prove she is available for work. Hamot Med. Ctr. v. Unemployment Comp. Bd. of Review, 645 A.2d 466 (Pa. Cmwlth. 1994). Whether a claimant is available for work is a question of fact for the Board. Gettig Eng’g v. Unemployment Comp. Bd. of Review, 473 A.2d 749 (Pa. Cmwlth. 1984).
________________
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.
http://www.pacourts.us/OpPosting/Cwealth/out/2491CD11_8-8-12.pdf
Woman who was caring for her husband was not available for work.
Section 401(d)(1) provides that in order to receive benefits, an employee must be "able to work and available for suitable work." 43 P.S. § 801 (d)(1). To establish availability for work, a claimant must be ready and able to accept employment, and be actually and currently attached to the labor force. Ruiz v. Unemployment Comp. Bd. of Review, 911 A.2d 600 (Pa. Cmwlth. 2006). It is the claimant’s burden to prove she is available for work. Hamot Med. Ctr. v. Unemployment Comp. Bd. of Review, 645 A.2d 466 (Pa. Cmwlth. 1994). Whether a claimant is available for work is a question of fact for the Board. Gettig Eng’g v. Unemployment Comp. Bd. of Review, 473 A.2d 749 (Pa. Cmwlth. 1984).
________________
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 - willful misconduct v. incompetence - level of previous ability
Hoffman v. UCBR - Cmwlth. Court - August 8, 2012 - unpublished memorandum decision
http://www.pacourts.us/OpPosting/Cwealth/out/232CD12_8-8-12.pdf
To establish willful misconduct, the employer must demonstrate that the employee’s conduct was of an intentional and deliberate nature. Myer v. Unemployment Comp. Bd. of Review, 533 Pa. 373, 625 A.2d 622 (1993). Therefore, "[m]ere incompetence, inexperience or inability of an employee can justify a discharge, but will not constitute willful misconduct so as to render an employee ineligible for benefits." Cullison v. Unemployment Comp. Bd. of Review, 444 A.2d 1330, 1332 (Pa. Cmwlth. 1982). However, a claimant’s work performance below the level of his ability over a period of time may be considered a conscious or careless disregard of the employer’s interests and may rise to the level of willful misconduct. Younes v. Unemployment Comp. Bd. of Review, 467 A.2d 1227 (Pa. Cmwlth. 1983).
________________
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.
http://www.pacourts.us/OpPosting/Cwealth/out/232CD12_8-8-12.pdf
To establish willful misconduct, the employer must demonstrate that the employee’s conduct was of an intentional and deliberate nature. Myer v. Unemployment Comp. Bd. of Review, 533 Pa. 373, 625 A.2d 622 (1993). Therefore, "[m]ere incompetence, inexperience or inability of an employee can justify a discharge, but will not constitute willful misconduct so as to render an employee ineligible for benefits." Cullison v. Unemployment Comp. Bd. of Review, 444 A.2d 1330, 1332 (Pa. Cmwlth. 1982). However, a claimant’s work performance below the level of his ability over a period of time may be considered a conscious or careless disregard of the employer’s interests and may rise to the level of willful misconduct. Younes v. Unemployment Comp. Bd. of Review, 467 A.2d 1227 (Pa. Cmwlth. 1983).
________________
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.
FMLA - employee notice - pretext analysis
Lichtenstein v. UPMC - 3d Cir. - August 3, 2012
http://www.ca3.uscourts.gov/opinarch/113419p.pdf
This case was largely decided on the basis that there were factual disputes that precluded summary relief for the employer.
It contains a lot of good discussion and analysis about FMLA in general and, in particular
- the specificity of the infomation that an employee has to give an employer to invoke FMLA, and
- the nature of pretext analysis when a legitimate justification for terminating an employee precedes the employee's exercise of FMLA rights.
http://www.ca3.uscourts.gov/opinarch/113419p.pdf
This case was largely decided on the basis that there were factual disputes that precluded summary relief for the employer.
It contains a lot of good discussion and analysis about FMLA in general and, in particular
- the specificity of the infomation that an employee has to give an employer to invoke FMLA, and
- the nature of pretext analysis when a legitimate justification for terminating an employee precedes the employee's exercise of FMLA rights.
Tuesday, August 07, 2012
consumer protection - "person" - community college
Meyer et al. v. Community College of Beaver County - Pa. Supreme Court - August 3, 1012
http://www.pacourts.us/OpPosting/Supreme/out/626wal2011Granted.pdf
The court granted the defendant's petition for allowance of appeal from a Commonwealth Court decision, 30 A.3d 587 (Pa. Cmlth. 2011) holding that a community college is a "person" under the state Consumer Protection Law.
The community college was sued by former students who were enrolled in a muncipal police officer training program, which was uncertified during the course of their studies.
http://www.pacourts.us/OpPosting/Supreme/out/626wal2011Granted.pdf
The court granted the defendant's petition for allowance of appeal from a Commonwealth Court decision, 30 A.3d 587 (Pa. Cmlth. 2011) holding that a community college is a "person" under the state Consumer Protection Law.
The community college was sued by former students who were enrolled in a muncipal police officer training program, which was uncertified during the course of their studies.
Wednesday, August 01, 2012
police liability for warrantless entry into home
Ryburn v. Huff - US Supreme Court - January 23, 2012
http://www.supremecourt.gov/opinions/11pdf/11-208.pdf
Sec. 1983 liability for police entry into private home rejected.
In Brigham City v. Stuart, 547 U. S. 398, 400 (2006), we held that officers may enter a residence without a warrant when they have "an objectively reasonable basis for believing that an occupant is . . . imminently threatened with [serious injury]." We explained that "‘[t]he need to protect or preserve life or avoid serious injury is justificationfor what would be otherwise illegal absent an exigency or emergency.’" Id., at 403 (quoting Mincey v. Arizona, 437 U. S. 385, 392 (1978)). In addition, in Georgia v. Randolph, 547 U. S. 103, 118 (2006), the Court stated that "it would be silly to suggest that the police would commit a tort by entering [a residence] . . . to determine whetherviolence . . . is about to (or soon will) occur." There was such an objectively reasonable basis in this case, involving entry into the home of a student who was alleged to have threatened to "shoot up" his school.
http://www.supremecourt.gov/opinions/11pdf/11-208.pdf
Sec. 1983 liability for police entry into private home rejected.
In Brigham City v. Stuart, 547 U. S. 398, 400 (2006), we held that officers may enter a residence without a warrant when they have "an objectively reasonable basis for believing that an occupant is . . . imminently threatened with [serious injury]." We explained that "‘[t]he need to protect or preserve life or avoid serious injury is justificationfor what would be otherwise illegal absent an exigency or emergency.’" Id., at 403 (quoting Mincey v. Arizona, 437 U. S. 385, 392 (1978)). In addition, in Georgia v. Randolph, 547 U. S. 103, 118 (2006), the Court stated that "it would be silly to suggest that the police would commit a tort by entering [a residence] . . . to determine whetherviolence . . . is about to (or soon will) occur." There was such an objectively reasonable basis in this case, involving entry into the home of a student who was alleged to have threatened to "shoot up" his school.
Tuesday, July 31, 2012
UC - willful misconduct - progressive disciplinary system
Hughes v. UCBR - Cmwlth. Court - unreported memorandum decision
http://www.pacourts.us/OpPosting/Cwealth/out/1448CD11_7-31-12.pdf
Court reversed Board in this willful misconduct case.
An employee’s conduct cannot be considered willful misconduct for unemployment compensation purposes when the employer has not adhered to its own progressive disciplinary system in discharging the employee. Looney v. UCBR, 529 A.2d 612, 614 (Pa. Cmwlth. 1987).
Employer's administrator conceded that ER did not follow its own progressive discipline policy before it terminated Claimant. The administrator testified that the policy requires two corrective actions prior to termination: a verbal discussion with the employee and a written warning. It is undisputed that Claimant was never provided with a written warning about her handling of the financial records. Further, there was no evidence that the infraction at issue would warrant deviating from the progressive discipline policy. See, e.g., Frigm v. UCBR, 642 A.2d 629, 634 (Pa. Cmwlth. 1994) (employer’s personnel policy expressly provided that "a serious offense may warrant immediate discharge."). The ER witness did not assert that Claimant’s conduct was an "egregious circumstance" that provided an exception to the progressive discipline procedures. Indeed, the pages of the handbook that allow for immediate discharge for "egregious circumstances" were not offered into evidence by Employer.
In addition, there was "absolutely no evidence" to support the critical finding that Claimant had a conflict of interest.
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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.
http://www.pacourts.us/OpPosting/Cwealth/out/1448CD11_7-31-12.pdf
Court reversed Board in this willful misconduct case.
An employee’s conduct cannot be considered willful misconduct for unemployment compensation purposes when the employer has not adhered to its own progressive disciplinary system in discharging the employee. Looney v. UCBR, 529 A.2d 612, 614 (Pa. Cmwlth. 1987).
Employer's administrator conceded that ER did not follow its own progressive discipline policy before it terminated Claimant. The administrator testified that the policy requires two corrective actions prior to termination: a verbal discussion with the employee and a written warning. It is undisputed that Claimant was never provided with a written warning about her handling of the financial records. Further, there was no evidence that the infraction at issue would warrant deviating from the progressive discipline policy. See, e.g., Frigm v. UCBR, 642 A.2d 629, 634 (Pa. Cmwlth. 1994) (employer’s personnel policy expressly provided that "a serious offense may warrant immediate discharge."). The ER witness did not assert that Claimant’s conduct was an "egregious circumstance" that provided an exception to the progressive discipline procedures. Indeed, the pages of the handbook that allow for immediate discharge for "egregious circumstances" were not offered into evidence by Employer.
In addition, there was "absolutely no evidence" to support the critical finding that Claimant had a conflict of interest.
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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.
Intentional infliction of emotional distress
Full discussion of Pennsylvania law on this issue in
Messer v. First Financial - ED Pa. - July 30, 2012
http://www.paed.uscourts.gov/documents/opinions/12D0742P.pdf
Messer v. First Financial - ED Pa. - July 30, 2012
http://www.paed.uscourts.gov/documents/opinions/12D0742P.pdf
Monday, July 30, 2012
Borough residential landlord-tenant ordinance upheld
Berwick Area Landlord Association v. Borough of Berwick - Cmwlth. Court - June 27, 2012
http://www.pacourts.us/OpPosting/Cwealth/out/766CD11_6-27-12.pdf
Borough LT ordinance upheld against various challenges. Law regulates residential rentals and requires them to be licensed, maintained and registered and sets out various duties of owners and occupants.
The court relied on, inter alia, Berwick Area Landlord Association v. Borough of Berwick, No. 07-316, 2007 WL 2065247 (M.D. Pa. July 16, 2007) (rejecting federal substantive due process claim by same plaintiffs regarding same ordinance); Bloomsburg Landlords Association, Inc. v. Town of Bloomsburg, 912 F. Supp. 790, 804-05 (M.D. Pa. 1995), aff’d, 96 F.3d 1431 (3d Cir. 1996) (rejecting federal substantive due process claim regarding similar ordinance) and McSwain v. Commonwealth, 520 A.2d 527, 529 (Pa. Cmwlth. 1987) (en banc).
http://www.pacourts.us/OpPosting/Cwealth/out/766CD11_6-27-12.pdf
Borough LT ordinance upheld against various challenges. Law regulates residential rentals and requires them to be licensed, maintained and registered and sets out various duties of owners and occupants.
The court relied on, inter alia, Berwick Area Landlord Association v. Borough of Berwick, No. 07-316, 2007 WL 2065247 (M.D. Pa. July 16, 2007) (rejecting federal substantive due process claim by same plaintiffs regarding same ordinance); Bloomsburg Landlords Association, Inc. v. Town of Bloomsburg, 912 F. Supp. 790, 804-05 (M.D. Pa. 1995), aff’d, 96 F.3d 1431 (3d Cir. 1996) (rejecting federal substantive due process claim regarding similar ordinance) and McSwain v. Commonwealth, 520 A.2d 527, 529 (Pa. Cmwlth. 1987) (en banc).
Friday, July 27, 2012
Discriminatory lending - Pa. Human Relations Act
Girard Finance v. Pennsylvania Human Relations Commission - Pa. Cmwlth. Court - July 27, 2012
http://www.pacourts.us/OpPosting/Cwealth/out/2189CD11_7-27-12.pdf
The court upheld a PHRC order requiring respondents Girard Finance and Richter to
- cease and desist from unlawfully discriminating against individual and others because of their race and/or national origin
- pay substantial money damages
- pay a civil penalty
- provide employees with training regarding non-discriminatory practices
- develop and implement a recording system to track all of its transactions
- report to the PHRC the means by which it will comply with the order.
Respondents were found to have unlawfully discriminated against individual complainant an other similarly situated persons on account of their race in the terms and conditions of loans of money and in the terms and conditions of real estate-related transactions.
The state Human Relations Act expressly authorizes the PHRC "[t]o initiate, receive, investigate and pass upon complaints charging unlawful discriminatory practices." 43 P.S. § 957(f). Section 5(h)(8) of the PHRA makes it unlawful to "[d]iscriminate in real estate-related transactions." 43 P.S. § 955(h)(8). "[R]eal estate-related transactions" include "the making or purchasing of loans . . . for . . . commercial property." Section 4(y)(1) of the PHRA, 43 P.S. § 954(y)(1).
http://www.pacourts.us/OpPosting/Cwealth/out/2189CD11_7-27-12.pdf
The court upheld a PHRC order requiring respondents Girard Finance and Richter to
- cease and desist from unlawfully discriminating against individual and others because of their race and/or national origin
- pay substantial money damages
- pay a civil penalty
- provide employees with training regarding non-discriminatory practices
- develop and implement a recording system to track all of its transactions
- report to the PHRC the means by which it will comply with the order.
Respondents were found to have unlawfully discriminated against individual complainant an other similarly situated persons on account of their race in the terms and conditions of loans of money and in the terms and conditions of real estate-related transactions.
The state Human Relations Act expressly authorizes the PHRC "[t]o initiate, receive, investigate and pass upon complaints charging unlawful discriminatory practices." 43 P.S. § 957(f). Section 5(h)(8) of the PHRA makes it unlawful to "[d]iscriminate in real estate-related transactions." 43 P.S. § 955(h)(8). "[R]eal estate-related transactions" include "the making or purchasing of loans . . . for . . . commercial property." Section 4(y)(1) of the PHRA, 43 P.S. § 954(y)(1).
Thursday, July 26, 2012
Marcellus Shale - Act 13 - Pa. Constitution
Robinson Township v. PUC - Cmwlth. Court - July 26, 2012 (66 pp.)
http://www.pacourts.us/OpPosting/Cwealth/out/284MD12_7-26-12.pdf
In a case involving a township's challenge to state statute concerning the Marcellus Shale, the commonwealth filed PO's and both parties moved for summary relief on some issues.
- standing - municipalties , landowners, associations, et al. -
- equal protections - Article I, sec. 1, and 14th Amendment - PO's rejected
- special laws - Article III, sec. 32
- natural resources - Article I, sec. 27
- separation of powers
- delegation of legislative power
- vagueness
On the Commonwealth's preliminary objections, the court sustained many, rejected a few, held that two sections of the law were unconstitutional.
The township's claims about violation of equal protection and impropert delegation of legislative power were upheld and enforcement of much of the law, Act 13, was enjoined.
http://www.pacourts.us/OpPosting/Cwealth/out/284MD12_7-26-12.pdf
In a case involving a township's challenge to state statute concerning the Marcellus Shale, the commonwealth filed PO's and both parties moved for summary relief on some issues.
- standing - municipalties , landowners, associations, et al. -
- equal protections - Article I, sec. 1, and 14th Amendment - PO's rejected
- special laws - Article III, sec. 32
- natural resources - Article I, sec. 27
- separation of powers
- delegation of legislative power
- vagueness
On the Commonwealth's preliminary objections, the court sustained many, rejected a few, held that two sections of the law were unconstitutional.
The township's claims about violation of equal protection and impropert delegation of legislative power were upheld and enforcement of much of the law, Act 13, was enjoined.
UC - notice of hearing - presumption of receipt - opportunity to rebut
Volk v. UCBR - Cmwlth. Court - July 26, 2012 (4-3)
http://www.pacourts.us/OpPosting/Cwealth/out/576CD11_7-26-12.pdf
A claimant who alleges that he did not get notice of the referee hearing must be afforded a hearing at which he has an opportunity to rebut the presumption of receipt of the notice.
The UCBR "may not rely solely upon the sufficiency of statements made in a petitioner’s appeal document or request to reopen the hearing, but must provide the petitioner against whom the presumption of receipt is being asserted the opportunity to submit evidence to rebut that presumption and to support the asserted reasons believed to be proper cause for not appearing at the hearing before the Board determines whether the petitioner had proper cause for not attending the hearing. Our holding is consistent with the Department’s regulation at 34 Pa. Code § 101.104, this Court’s decision in Coin Automatic Laundry, 447 A.2d 690, 691 (Pa. Cmwlth. 1982), and the principles of due process. To hold otherwise would effectively transform the presumption of receipt of mail into an irrebutable presumption. Therefore, we vacate the Board’s Order and remand for further proceedings consistent with this opinion.
http://www.pacourts.us/OpPosting/Cwealth/out/576CD11_7-26-12.pdf
A claimant who alleges that he did not get notice of the referee hearing must be afforded a hearing at which he has an opportunity to rebut the presumption of receipt of the notice.
The UCBR "may not rely solely upon the sufficiency of statements made in a petitioner’s appeal document or request to reopen the hearing, but must provide the petitioner against whom the presumption of receipt is being asserted the opportunity to submit evidence to rebut that presumption and to support the asserted reasons believed to be proper cause for not appearing at the hearing before the Board determines whether the petitioner had proper cause for not attending the hearing. Our holding is consistent with the Department’s regulation at 34 Pa. Code § 101.104, this Court’s decision in Coin Automatic Laundry, 447 A.2d 690, 691 (Pa. Cmwlth. 1982), and the principles of due process. To hold otherwise would effectively transform the presumption of receipt of mail into an irrebutable presumption. Therefore, we vacate the Board’s Order and remand for further proceedings consistent with this opinion.
Monday, July 23, 2012
contracts - adhesion - exculpatory clause - recklessness - public policy
Tayar v. Camelback Ski Corp. - Pa. S.Ct. - July 18, 2012
Majority - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011mo.pdf (21 pp.) (Todd + 4)
Concur/dissent - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011codo1.pdf (2 pp.) (Eakin)
Concur/dissent - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011codo2.pdf (8 pp.) (Baer)
This is a case personal injury involving a ski resort. The plaintiff signed a contract containing a release from liability for the defendant.
The court held that it was against public policy for a defendant to be relieved of reckless conduct.
- Exculpatory clauses - contract of adhesion - Exculpatory provisions are generally disfavored. They are only enforceable where three conditions are met. First, the clause must not contravene public policy. Second, the contract must be between persons concerning their private affairs. Third, each party must be a free bargaining agent so the contract is not one of adhesion. Employers Liab. Assur. Corp. v. Greenville Business Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966).
- Public policy - Avoidance of contract terms on public policy grounds requires a showing of overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards. See Williams v. GEICO Gov’t Employees Ins. Co., __ Pa. __, 32 A.3d 1195 (2011). Public policy is more than a vague goal. It is be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term “public policy” is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy[.] . . . Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts . . . contrary to public policy. The courts must be content to await legislative action. Further, it is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring.
- A release for reckless conduct is against public policy - There is a spectrum of tortious conduct recklessness falls. At one end of that spectrum, exculpatory clauses that release a party from negligence generally are not against public policy, and are enforceable provided certain criteria are met. On the other end of the continuum are releases for intentional conduct. It is elementary and foundational to our system of criminal and tort law that parties are not permitted to intentionally harm one another. Accordingly, releases for intentional tortious conduct are likewise prohibited. Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence. This conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence, but aligns it more closely with intentional conduct. As a result, we are inclined to apply the same prohibition on releasing reckless conduct as we do for intentional conduct.
This view is supported by the conclusions of courts in other jurisdictions. The overwhelming majority of our sister states find releases for reckless conduct are against public policy, and federal courts purporting to apply Pennsylvania law have barred the enforcement of releases for reckless behavior.
Were we to sanction releases for reckless conduct, parties would escape liability for consciously disregarding substantial risks of harm to others; indeed, liability would be waivable for all conduct except where the actor specifically intended harm to occur. There is near unanimity across jurisdictions that such releases are unenforceable, as such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct. We therefore conclude that, even in this voluntarily recreational setting involving private parties, there is a dominant public policy against allowing exculpatory releases of reckless behavior, which encourages parties to adhere to minimal standards of care and safety.
Majority - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011mo.pdf (21 pp.) (Todd + 4)
Concur/dissent - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011codo1.pdf (2 pp.) (Eakin)
Concur/dissent - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011codo2.pdf (8 pp.) (Baer)
This is a case personal injury involving a ski resort. The plaintiff signed a contract containing a release from liability for the defendant.
The court held that it was against public policy for a defendant to be relieved of reckless conduct.
- Exculpatory clauses - contract of adhesion - Exculpatory provisions are generally disfavored. They are only enforceable where three conditions are met. First, the clause must not contravene public policy. Second, the contract must be between persons concerning their private affairs. Third, each party must be a free bargaining agent so the contract is not one of adhesion. Employers Liab. Assur. Corp. v. Greenville Business Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966).
- Public policy - Avoidance of contract terms on public policy grounds requires a showing of overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards. See Williams v. GEICO Gov’t Employees Ins. Co., __ Pa. __, 32 A.3d 1195 (2011). Public policy is more than a vague goal. It is be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term “public policy” is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy[.] . . . Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts . . . contrary to public policy. The courts must be content to await legislative action. Further, it is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring.
- A release for reckless conduct is against public policy - There is a spectrum of tortious conduct recklessness falls. At one end of that spectrum, exculpatory clauses that release a party from negligence generally are not against public policy, and are enforceable provided certain criteria are met. On the other end of the continuum are releases for intentional conduct. It is elementary and foundational to our system of criminal and tort law that parties are not permitted to intentionally harm one another. Accordingly, releases for intentional tortious conduct are likewise prohibited. Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence. This conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence, but aligns it more closely with intentional conduct. As a result, we are inclined to apply the same prohibition on releasing reckless conduct as we do for intentional conduct.
This view is supported by the conclusions of courts in other jurisdictions. The overwhelming majority of our sister states find releases for reckless conduct are against public policy, and federal courts purporting to apply Pennsylvania law have barred the enforcement of releases for reckless behavior.
Were we to sanction releases for reckless conduct, parties would escape liability for consciously disregarding substantial risks of harm to others; indeed, liability would be waivable for all conduct except where the actor specifically intended harm to occur. There is near unanimity across jurisdictions that such releases are unenforceable, as such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct. We therefore conclude that, even in this voluntarily recreational setting involving private parties, there is a dominant public policy against allowing exculpatory releases of reckless behavior, which encourages parties to adhere to minimal standards of care and safety.
Monday, July 16, 2012
Housing - Sec. 8 - conviction for possession of drug paraphernalia not disqualifying
Romagna v. Housing Authority of Indiana Co. - Cmwlth. Court -July 13, 2012 - unreported memorandum decision
http://www.pacourts.us/OpPosting/Cwealth/out/1648CD11_7-13-12.pdf
Conviction for possession of "drug paraphernalia" did not disqualify applicant from sec. 8 housing assistance, since such activity is not the basis for disqualification under any statutes or regulations.
HUD regulations give a housing authority power to deny entry to an applicant who has engaged in "[d]rug-related criminal activity." 24 C.F.R. §982.553(a)(2)(ii)(A)(1). This regulation defines "drug-related criminal activity" as the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug. 24 C.F.R. §5.100. It defines "drug" as any "controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. §802)." 24 C.F.R. §5.100.
This regulation parrots Section 8(f)(5) of the Housing and Community Development Act of 1974, 42 U.S.C. §1437f(f)(5), which also defines "drug-related criminal activity" as "the illegal manufacture, sale, distribution, use, or possession with intent to manufacture, sell, distribute, or use, of a controlled substance (as defined in Section 802 of title 21)." Title 21 states that a controlled substance is a "drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter."
Title 21 incorporates the meaning of "drug" set forth in the Food, Drug, and Cosmetic Act, 21 U.S.C. §321(g)(1), which states as follows: The term "drug" means (A) articles recognized in the official United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (B) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (C) articles (other than food) intended to affect the structure or any function of the body of man or other animals; and (D) articles intended for use as a component of any article specified in clause (A), (B), or (C)…. 21 U.S.C. §321(g)(1).
Neither the definition of "drug" nor "controlled substance" includes drug paraphernalia. The Housing Authority does not offer any authority for its view that these terms do include drug paraphernalia. It merely argues that the trial court’s analysis ignores the reality that possession of drug paraphernalia is a crime because it goes hand-in-hand with drug usage.
Under the Housing Authority’s own regulation, a drug-related criminal activity requires the actual use or possession of a drug, and it does not include possession of paraphernalia. Applicant’s drug paraphernalia conviction was not relevant to her eligibility for housing.
________________
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.
http://www.pacourts.us/OpPosting/Cwealth/out/1648CD11_7-13-12.pdf
Conviction for possession of "drug paraphernalia" did not disqualify applicant from sec. 8 housing assistance, since such activity is not the basis for disqualification under any statutes or regulations.
HUD regulations give a housing authority power to deny entry to an applicant who has engaged in "[d]rug-related criminal activity." 24 C.F.R. §982.553(a)(2)(ii)(A)(1). This regulation defines "drug-related criminal activity" as the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug. 24 C.F.R. §5.100. It defines "drug" as any "controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. §802)." 24 C.F.R. §5.100.
This regulation parrots Section 8(f)(5) of the Housing and Community Development Act of 1974, 42 U.S.C. §1437f(f)(5), which also defines "drug-related criminal activity" as "the illegal manufacture, sale, distribution, use, or possession with intent to manufacture, sell, distribute, or use, of a controlled substance (as defined in Section 802 of title 21)." Title 21 states that a controlled substance is a "drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter."
Title 21 incorporates the meaning of "drug" set forth in the Food, Drug, and Cosmetic Act, 21 U.S.C. §321(g)(1), which states as follows: The term "drug" means (A) articles recognized in the official United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (B) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (C) articles (other than food) intended to affect the structure or any function of the body of man or other animals; and (D) articles intended for use as a component of any article specified in clause (A), (B), or (C)…. 21 U.S.C. §321(g)(1).
Neither the definition of "drug" nor "controlled substance" includes drug paraphernalia. The Housing Authority does not offer any authority for its view that these terms do include drug paraphernalia. It merely argues that the trial court’s analysis ignores the reality that possession of drug paraphernalia is a crime because it goes hand-in-hand with drug usage.
Under the Housing Authority’s own regulation, a drug-related criminal activity requires the actual use or possession of a drug, and it does not include possession of paraphernalia. Applicant’s drug paraphernalia conviction was not relevant to her eligibility for housing.
________________
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.
Friday, July 13, 2012
Child abuse - expungement - clear and convincing
TT v. DPW - July 13, 2012 - Commonwealth Court
http://www.pacourts.us/OpPosting/Cwealth/out/1890CD11_7-13-12.pdf
Following its recent opinion in G.V. v. DPW, the court said....
Historically, in expungement proceedings, the Department has had the burden to show that the indicated report was accurate by substantial evidence. Bucks County CYS v. DPW, 616 A.2d 170 (Pa. Cmwlth. 1992). However, in the recently argued G.V. v. Department of Public Welfare, we held that the use of this standard to maintain statutorily-designated information from an indicated report on the ChildLine Registry did not adequately protect the rights of the accused and adopted the clear and convincing evidence standard for those proceedings.
Clear and convincing evidence is the highest burden in our civil law and requires that the fact-finder be able to come to clear conviction, without hesitancy, of the truth of the precise fact in issue. Suber v. Pennsylvania Commission on Crime and Delinquency, 885 A.2d 678, 682 (Pa. Cmwlth. 2005). To meet that standard, it necessarily means that the witnesses must be found to be credible, that the facts to which they have testified are remembered distinctly, and that their testimony is so clear, direct, weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Id.
Here, an order maintaining the indicated child abuse report summary on the ChildLine Registry against T.T., a Pennsylvania public school teacher, results in a significant impact not only on his personal and professional reputation, but also on his ability to continue practicing his profession. Such an impact demonstrates the need to apply the stricter clear and convincing evidence standard in expungement proceedings.
http://www.pacourts.us/OpPosting/Cwealth/out/1890CD11_7-13-12.pdf
Following its recent opinion in G.V. v. DPW, the court said....
Historically, in expungement proceedings, the Department has had the burden to show that the indicated report was accurate by substantial evidence. Bucks County CYS v. DPW, 616 A.2d 170 (Pa. Cmwlth. 1992). However, in the recently argued G.V. v. Department of Public Welfare, we held that the use of this standard to maintain statutorily-designated information from an indicated report on the ChildLine Registry did not adequately protect the rights of the accused and adopted the clear and convincing evidence standard for those proceedings.
Clear and convincing evidence is the highest burden in our civil law and requires that the fact-finder be able to come to clear conviction, without hesitancy, of the truth of the precise fact in issue. Suber v. Pennsylvania Commission on Crime and Delinquency, 885 A.2d 678, 682 (Pa. Cmwlth. 2005). To meet that standard, it necessarily means that the witnesses must be found to be credible, that the facts to which they have testified are remembered distinctly, and that their testimony is so clear, direct, weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Id.
Here, an order maintaining the indicated child abuse report summary on the ChildLine Registry against T.T., a Pennsylvania public school teacher, results in a significant impact not only on his personal and professional reputation, but also on his ability to continue practicing his profession. Such an impact demonstrates the need to apply the stricter clear and convincing evidence standard in expungement proceedings.
EAJA - disability - closely approaching advanced age - HALLEX v. binding case law
Jones v. Astrue - ED Pa - July 10, 2012
http://www.paed.uscourts.gov/documents/opinions/12D0666P.pdf
It is undisputed that if the ALJ had placed claimant -- 2 weeks from his 55th birthday -- in the higher category of “person of advanced age,” the grids would have directed a finding of disabled. However, despite Jones’s proximity to age fifty-five, the ALJ’s decision neither referred to a “borderline situation” nor cited 20 CFR §§ 404.1563(b) or 416.963(b). The decision did not consider which age category best described Jones’s ability to adjust to new work, but stated only that he was “a person closely approaching advanced age” based on his chronological age, contrary to the Third Circuit’s holding in Kane v. Heckler, where the Third Circuit held that the regulations require the ALJ to explicitly acknowledge a borderline situation and to determine which age category best describes the claimant’s ability to adjust to new work. 776 F.2d at 1132-34.
Following Kane, Jones’s proximity to age fifty-five at the time of the ALJ’s decision presented a borderline situation. Sections §§ 404.1563(b) and 416.963(b) require the Commissioner to consider the use of the higher age category in such situations. The ALJ was at least required to address the application of §§ 404.1563(b) and 416.963(b) to Jones’s case and explain why he used the lower age category.
The court rejected the Commissioner’s argument that the ALJ adequately considered Jones’s ability to adapt to new work by soliciting testimony from the VE. It noted that the ALJ never addressed the existence of a borderline situation during his colloquy with the VE, but instead asked the VE to assume at all times that Jones was categorized as a person closely approaching advanced age. The court also also held that HALLEX did not relieve the ALJ from explicitly recognizing the borderline situation as required by Kane because HALLEX is not legally binding.
http://www.paed.uscourts.gov/documents/opinions/12D0666P.pdf
It is undisputed that if the ALJ had placed claimant -- 2 weeks from his 55th birthday -- in the higher category of “person of advanced age,” the grids would have directed a finding of disabled. However, despite Jones’s proximity to age fifty-five, the ALJ’s decision neither referred to a “borderline situation” nor cited 20 CFR §§ 404.1563(b) or 416.963(b). The decision did not consider which age category best described Jones’s ability to adjust to new work, but stated only that he was “a person closely approaching advanced age” based on his chronological age, contrary to the Third Circuit’s holding in Kane v. Heckler, where the Third Circuit held that the regulations require the ALJ to explicitly acknowledge a borderline situation and to determine which age category best describes the claimant’s ability to adjust to new work. 776 F.2d at 1132-34.
Following Kane, Jones’s proximity to age fifty-five at the time of the ALJ’s decision presented a borderline situation. Sections §§ 404.1563(b) and 416.963(b) require the Commissioner to consider the use of the higher age category in such situations. The ALJ was at least required to address the application of §§ 404.1563(b) and 416.963(b) to Jones’s case and explain why he used the lower age category.
The court rejected the Commissioner’s argument that the ALJ adequately considered Jones’s ability to adapt to new work by soliciting testimony from the VE. It noted that the ALJ never addressed the existence of a borderline situation during his colloquy with the VE, but instead asked the VE to assume at all times that Jones was categorized as a person closely approaching advanced age. The court also also held that HALLEX did not relieve the ALJ from explicitly recognizing the borderline situation as required by Kane because HALLEX is not legally binding.
Thursday, July 12, 2012
child abuse - expungement - standard of proof - clear and convincing
G.V. v. DPW - Cmwlth. Court - July 12, 2012 (5-2)
http://www.pacourts.us/OpPosting/Cwealth/out/125CD11_7-12-12.pdf
The "clear and convincing" standard must apply to child abuse registry cases, since basing an indicated report on substantial evidence, as was done by the ALJ and as set forth in the Law, "does not adequately protect the rights of the accused perpetrator given the nature of the proceedings and the adverse consequences which flow from a finding of abuse and registration in the statewide Child[Line] Registry." J.S. v. Department of Public Welfare, 528 Pa. 243, 596 A.2d 1114 (1991). The standard of proof in expungement proceedings must be one of clear and convincing evidence.
Article I, Section 1 of the Pennsylvania Constitution provides: "All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting . . . reputation . . . ." Pa. Const. art. I, § 1. Because reputation is a protected fundamental interest under Article I, Section 1 of the Pennsylvania Constitution, the loss of reputation, the stigma associated with being named a child abuser, and the effect of such a determination on one's ability to gain employment all demand a higher standard of proof in order to satisfy due process.
The court applied a balancing test under R. v. Department of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994) and Mathews v. Eldridge, 424 U.S. 319, 335 (1976), using the following factors to be considered: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‟s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements will entail.
After weighing these factors, the Court held that "substantial evidence must support a determination of whether child abuse has occurred, but there must be clear and convincing evidence of child abuse to maintain statutorily-designated information from an indicated report on the ChildLine Registry."
http://www.pacourts.us/OpPosting/Cwealth/out/125CD11_7-12-12.pdf
The "clear and convincing" standard must apply to child abuse registry cases, since basing an indicated report on substantial evidence, as was done by the ALJ and as set forth in the Law, "does not adequately protect the rights of the accused perpetrator given the nature of the proceedings and the adverse consequences which flow from a finding of abuse and registration in the statewide Child[Line] Registry." J.S. v. Department of Public Welfare, 528 Pa. 243, 596 A.2d 1114 (1991). The standard of proof in expungement proceedings must be one of clear and convincing evidence.
Article I, Section 1 of the Pennsylvania Constitution provides: "All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting . . . reputation . . . ." Pa. Const. art. I, § 1. Because reputation is a protected fundamental interest under Article I, Section 1 of the Pennsylvania Constitution, the loss of reputation, the stigma associated with being named a child abuser, and the effect of such a determination on one's ability to gain employment all demand a higher standard of proof in order to satisfy due process.
The court applied a balancing test under R. v. Department of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994) and Mathews v. Eldridge, 424 U.S. 319, 335 (1976), using the following factors to be considered: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‟s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements will entail.
After weighing these factors, the Court held that "substantial evidence must support a determination of whether child abuse has occurred, but there must be clear and convincing evidence of child abuse to maintain statutorily-designated information from an indicated report on the ChildLine Registry."
convictions - expungement - underage drinking, simple assault
Commonwealth v. Furrer - Superior Court - July 11, 2012
http://www.pacourts.us/OpPosting/Superior/out/s39012_12.pdf
Appellate court affirmed refusal to expunge simple assault conviction, but reversed and ordered expungment of conviction for underage drinking.
Expungement of criminal records is governed by statute. See Hunt v. Pennsylvania State Police, 603 Pa. 156, 166, 983 A.2d 627, 633 (2009) (citing 18 Pa.C.S.A. § 9122). “The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth.
There is a long-standing right in this Commonwealth to petition for expungement of a criminal arrest record, a right that is adjunct of due process. Carlacci v. Mazaleski, [798 A.2d 186,
Judicial analysis and evaluation of a petition to expunge depend upon the manner of disposition of the charges against the petitioner. When an individual has been convicted of the offenses charged, then expungement of criminal history records may be granted only under very limited circumstances that are set forth by statute. 18 Pa.C.S. § 9122; Hunt v. Pennsylvania State Police, 604 Pa. 156, 983 A.2d 627, 633 (2009). Commonwealth v. Wallace, ___ A.3d ___, 2012 WL 1893526 at *2 (Pa. Super. filed May 25, 2012) (citing Commonwealth v. Moto, ___ Pa. ___, ___, 23 A.3d 989, 993-994 (2011)).
Here, the record establishes the following undisputed facts: (1) Appellant was convicted of a violation of section 6308 in the Court of Common Pleas of Westmoreland County; (2) at age 22, he petitioned the Court of Common Pleas of Westmoreland County, seeking expungement of, inter alia, the section 6308 conviction; and (3) he satisfied all terms and conditions of the sentence imposed for the section 6308 violation. Therefore, pursuant to the plain, mandatory language of 18 Pa.C.S.A. § 9122(a)(3) the trial court was required to expunge all criminal history record information related to the section 6308 conviction. In not doing so, the trial court abused its discretion.
Expungment of a simple assault conviction is not mandatory under sec. 9122 and does not fit the discretionary criteria under sec. 9122(b), since the appellant here is not over age 70, is still alive, and simple assault is not a summary offense.
http://www.pacourts.us/OpPosting/Superior/out/s39012_12.pdf
Appellate court affirmed refusal to expunge simple assault conviction, but reversed and ordered expungment of conviction for underage drinking.
Expungement of criminal records is governed by statute. See Hunt v. Pennsylvania State Police, 603 Pa. 156, 166, 983 A.2d 627, 633 (2009) (citing 18 Pa.C.S.A. § 9122). “The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth.
There is a long-standing right in this Commonwealth to petition for expungement of a criminal arrest record, a right that is adjunct of due process. Carlacci v. Mazaleski, [798 A.2d 186,
Judicial analysis and evaluation of a petition to expunge depend upon the manner of disposition of the charges against the petitioner. When an individual has been convicted of the offenses charged, then expungement of criminal history records may be granted only under very limited circumstances that are set forth by statute. 18 Pa.C.S. § 9122; Hunt v. Pennsylvania State Police, 604 Pa. 156, 983 A.2d 627, 633 (2009). Commonwealth v. Wallace, ___ A.3d ___, 2012 WL 1893526 at *2 (Pa. Super. filed May 25, 2012) (citing Commonwealth v. Moto, ___ Pa. ___, ___, 23 A.3d 989, 993-994 (2011)).
Here, the record establishes the following undisputed facts: (1) Appellant was convicted of a violation of section 6308 in the Court of Common Pleas of Westmoreland County; (2) at age 22, he petitioned the Court of Common Pleas of Westmoreland County, seeking expungement of, inter alia, the section 6308 conviction; and (3) he satisfied all terms and conditions of the sentence imposed for the section 6308 violation. Therefore, pursuant to the plain, mandatory language of 18 Pa.C.S.A. § 9122(a)(3) the trial court was required to expunge all criminal history record information related to the section 6308 conviction. In not doing so, the trial court abused its discretion.
Expungment of a simple assault conviction is not mandatory under sec. 9122 and does not fit the discretionary criteria under sec. 9122(b), since the appellant here is not over age 70, is still alive, and simple assault is not a summary offense.
Proof of service - mailbox rule
Szymanski v. Dotey and Jenkins - Superior Court - July 11, 2012
http://www.pacourts.us/OpPosting/Superior/out/a08017_12.pdf
The mailbox rule provides that “depositing in the post office a properly addressed, prepaid letter raises a natural presumption, founded in common experience, that it reached its destination by due course of mail.” Jenson v. McCorkell, 154 Pa. 323, 325, 26 A. 366, 367 (Pa. 1893). As the Pennsylvania Supreme Court noted: “The overwhelming weight of statistics clearly indicates that letters properly mailed and deposited in the post office are received by the addressees.” Meierdierck v. Miller, 394 Pa. 484, 487, 147 A.2d 406, 408 (Pa. 1959). Thus, “[e]vidence that a letter has been mailed will ordinarily be sufficient to permit a jury to find that the letter was in fact received by the party to whom it was addressed.” Shafer v. A.I.T.S., Inc., 428 A.2d 152, 156 (Pa. Super. 1981).
However, “evidence of actual mailing is not required.” Commonwealth Dep’t of Transp. v. Brayman Constr. Corp., 513 A.2d 562, 566 (Pa. Commw. 1986). The Superior Court has held that “when a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Christie v. Open Pantry Food Marts Inc. of Delaware Valley, 352 A.2d 165, 166-67 (Pa. Super. 1975).
To trigger the presumption of receipt, “the party who is seeking the benefit of the presumption must adduce evidentiary proof that the letter was signed in the usual course of business and placed in the regular place of mailing.” Geise v. Nationwide Life & Annuity Co. of America, 939 A.2d 409, 423 (Pa. Super. 2007); Shafer, 428 A.2d at 156. “A presumption that a letter was received cannot be based on a presumption that the letter was mailed. A presumption cannot be based on a presumption.” Geise, 939 A.2d at 423. Documentary evidence of mailing or testimony from the author that a document was mailed may establish the presumption of receipt. See Grasse, 606 A.2d at 546 (holding appellees met burden of proof of mailing by producing certified driving record which included document showing notice was mailed); cf. Meierdierck, 394 Pa. at 487, 147 A.2d at 408 (holding that “[w]here the use of the mails as a means of acceptance is authorized or implied from the surrounding circumstances, the acceptance is complete by posting the letter in normal mail channels, without more.”).
In this case, the evidence did not establish that the relevant notice (setting a trial date) was mailed, or that it was prepared in the ordinary course of business and placed in the regular place of mailing. See Christie, 352 A.2d at 166- 67. The evidence was only that the court administrator was the author of the notice. But she did not testify that she placed the notice in her office’s usual place for outgoing mail, nor did she testify that she or any other employee mailed it via any method of mailing. Pursuant to Brayman and Christie, the testimony did not constitute competent evidence of mailing because she offered no testimony or evidence that she had placed the notice in the office’s regular place of mailing or on the custom as to the mailing of such notices. See Brayman, 513 A.2d at 566; Christie, 352 A.2d at 166-67.
The testimony also failed to conform to the rule set forth in Meierdierck, that introducing testimony that the notice was mailed suffices to establish the mailbox rule’s presumption of receipt. See Meierdierck, 394 Pa. at 487, 147 A.2d at 408. Although the witness testified that she was the author of the notice, she did not testify that the notice was mailed. Commonwealth v. Thomas, 814 A.2d 754 (Pa. Super. 2002).
http://www.pacourts.us/OpPosting/Superior/out/a08017_12.pdf
The mailbox rule provides that “depositing in the post office a properly addressed, prepaid letter raises a natural presumption, founded in common experience, that it reached its destination by due course of mail.” Jenson v. McCorkell, 154 Pa. 323, 325, 26 A. 366, 367 (Pa. 1893). As the Pennsylvania Supreme Court noted: “The overwhelming weight of statistics clearly indicates that letters properly mailed and deposited in the post office are received by the addressees.” Meierdierck v. Miller, 394 Pa. 484, 487, 147 A.2d 406, 408 (Pa. 1959). Thus, “[e]vidence that a letter has been mailed will ordinarily be sufficient to permit a jury to find that the letter was in fact received by the party to whom it was addressed.” Shafer v. A.I.T.S., Inc., 428 A.2d 152, 156 (Pa. Super. 1981).
However, “evidence of actual mailing is not required.” Commonwealth Dep’t of Transp. v. Brayman Constr. Corp., 513 A.2d 562, 566 (Pa. Commw. 1986). The Superior Court has held that “when a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Christie v. Open Pantry Food Marts Inc. of Delaware Valley, 352 A.2d 165, 166-67 (Pa. Super. 1975).
To trigger the presumption of receipt, “the party who is seeking the benefit of the presumption must adduce evidentiary proof that the letter was signed in the usual course of business and placed in the regular place of mailing.” Geise v. Nationwide Life & Annuity Co. of America, 939 A.2d 409, 423 (Pa. Super. 2007); Shafer, 428 A.2d at 156. “A presumption that a letter was received cannot be based on a presumption that the letter was mailed. A presumption cannot be based on a presumption.” Geise, 939 A.2d at 423. Documentary evidence of mailing or testimony from the author that a document was mailed may establish the presumption of receipt. See Grasse, 606 A.2d at 546 (holding appellees met burden of proof of mailing by producing certified driving record which included document showing notice was mailed); cf. Meierdierck, 394 Pa. at 487, 147 A.2d at 408 (holding that “[w]here the use of the mails as a means of acceptance is authorized or implied from the surrounding circumstances, the acceptance is complete by posting the letter in normal mail channels, without more.”).
In this case, the evidence did not establish that the relevant notice (setting a trial date) was mailed, or that it was prepared in the ordinary course of business and placed in the regular place of mailing. See Christie, 352 A.2d at 166- 67. The evidence was only that the court administrator was the author of the notice. But she did not testify that she placed the notice in her office’s usual place for outgoing mail, nor did she testify that she or any other employee mailed it via any method of mailing. Pursuant to Brayman and Christie, the testimony did not constitute competent evidence of mailing because she offered no testimony or evidence that she had placed the notice in the office’s regular place of mailing or on the custom as to the mailing of such notices. See Brayman, 513 A.2d at 566; Christie, 352 A.2d at 166-67.
The testimony also failed to conform to the rule set forth in Meierdierck, that introducing testimony that the notice was mailed suffices to establish the mailbox rule’s presumption of receipt. See Meierdierck, 394 Pa. at 487, 147 A.2d at 408. Although the witness testified that she was the author of the notice, she did not testify that the notice was mailed. Commonwealth v. Thomas, 814 A.2d 754 (Pa. Super. 2002).
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