In the Interest of S.D., a minor - Superior Court - September 5, 2012
http://www.pacourts.us/OpPosting/Superior/out/s36029_12.pdf
Provision of Juvenile Act, 42 Pa.C.S.A. § 6341(b.1), which requires notice to minor's school of adjudication of delinquency, requires notice to colleges and universities as well as other schools.
Thursday, September 06, 2012
Wednesday, September 05, 2012
frivolous litigation - pro se plaintiff - Rule 233.1
Gray v. Buonopane - Superior Court - August 22, 2012
http://www.pacourts.us/OpPosting/Superior/out/s28004_12.pdf
Discussion of Rule 233.1 - frivolous litigation, pro se plaintiffs, motion to dismiss.
admin. law - burden of proof - procedure where non-burdened party does not appear
V.W. v. DPW - Cmwlth. Court - August 24, 2012
http://www.pacourts.us/OpPosting/Cwealth/out/1894CD11_8-24-12.pdf
Dismissal of appeal from decision in child abuse expungement case reversed, where
a) DPW put on no evidence of abuse, and
b) appellant, the alleged abuser, had notice of the hearing and failed to appear.
Under the relevant statute and case law, DPW had the burden of proving abuse, but presented no evidence, relying entirely on the appellant's non-appearance.
Generally, "the burden of proof … rests upon the party who … asserts the affirmative of an issue"; thus, "one alleging a fact … has the burden of establishing it." Lincoln Intermediate Unit #12 v. Bermudian Springs Sch. Dist., 441 A.2d 813, 815 (Pa. Cmwlth. 1982) [quoting Hervitz v. New York Life Ins. Co., 52 A.2d 368, 369 (Pa. Super. 1947)]. In Lee v. DPW, 523 A.2d 1188 (Pa. Cmwlth. 1987), the owner of the nursing home appealed the Department's audits but failed to appear at a scheduled hearing without seeking continuance. The Court upheld the dismissal of the appeal, stating: "The petitioners bore the burden of proof before the Hearing Officer … and by virtue of their non-appearance, failed to present any evidence to support their challenges as to the audit appeals …. The petitioners, therefore, must be held to have failed to carry their burden, thus rendering the dismissal proper." Id. at 1189-90 (citations omitted).
Unlike in Lee, CYS, not V.W. who failed to appear at the hearing, had the burden of proof at the scheduled hearing. Section 6341(c) of the Law provides that "[t]he burden of proof in the hearing shall be on the appropriate county agency." Under the heading "[h]earings and appeals proceedings for indicated reports received by ChildLine after June 30, 1995," 55 Pa. Code § 3490.106a(g) also provides that "[t]he burden of proof in hearings held under this section is on the appropriate county agency."
In Zawacki v. Department of Transportation, Bureau of Driver Licensing, 745 A.2d 701 (Pa. Cmwlth. 2000), the court concluded that because the Department had the burden of proof in a statutory license suspension appeal, it was required to present a prima facie case despite the nonappearance of the licensee and his counsel at the hearing, noting that "a Licensee may prevail without presenting any evidence whatsoever." Zawacki, 745 A.2d at 703. See also Commonwealth v. 1992 Chevrolet, 844 A.2d 583 (Pa. Cmwlth. 2004).
The same rule should apply to this expungement proceeding, in which CYS had the burden of proving existence of substantial evidence supporting the indicated report of child abuse. The Bureau should have proceeded to hold a hearing despite V.W.'s nonappearance and to determine whether CYS met its burden. Hence, the Bureau erred in dismissing V.W.'s appeal as abandoned. Accordingly, we vacate the Bureau's order and remand this matter to the Bureau to hold a hearing and determine V.W.'s entitlement to expungement of the indicated report based on evidence presented by the parties at the hearing.
http://www.pacourts.us/OpPosting/Cwealth/out/1894CD11_8-24-12.pdf
Dismissal of appeal from decision in child abuse expungement case reversed, where
a) DPW put on no evidence of abuse, and
b) appellant, the alleged abuser, had notice of the hearing and failed to appear.
Under the relevant statute and case law, DPW had the burden of proving abuse, but presented no evidence, relying entirely on the appellant's non-appearance.
Generally, "the burden of proof … rests upon the party who … asserts the affirmative of an issue"; thus, "one alleging a fact … has the burden of establishing it." Lincoln Intermediate Unit #12 v. Bermudian Springs Sch. Dist., 441 A.2d 813, 815 (Pa. Cmwlth. 1982) [quoting Hervitz v. New York Life Ins. Co., 52 A.2d 368, 369 (Pa. Super. 1947)]. In Lee v. DPW, 523 A.2d 1188 (Pa. Cmwlth. 1987), the owner of the nursing home appealed the Department's audits but failed to appear at a scheduled hearing without seeking continuance. The Court upheld the dismissal of the appeal, stating: "The petitioners bore the burden of proof before the Hearing Officer … and by virtue of their non-appearance, failed to present any evidence to support their challenges as to the audit appeals …. The petitioners, therefore, must be held to have failed to carry their burden, thus rendering the dismissal proper." Id. at 1189-90 (citations omitted).
Unlike in Lee, CYS, not V.W. who failed to appear at the hearing, had the burden of proof at the scheduled hearing. Section 6341(c) of the Law provides that "[t]he burden of proof in the hearing shall be on the appropriate county agency." Under the heading "[h]earings and appeals proceedings for indicated reports received by ChildLine after June 30, 1995," 55 Pa. Code § 3490.106a(g) also provides that "[t]he burden of proof in hearings held under this section is on the appropriate county agency."
In Zawacki v. Department of Transportation, Bureau of Driver Licensing, 745 A.2d 701 (Pa. Cmwlth. 2000), the court concluded that because the Department had the burden of proof in a statutory license suspension appeal, it was required to present a prima facie case despite the nonappearance of the licensee and his counsel at the hearing, noting that "a Licensee may prevail without presenting any evidence whatsoever." Zawacki, 745 A.2d at 703. See also Commonwealth v. 1992 Chevrolet, 844 A.2d 583 (Pa. Cmwlth. 2004).
The same rule should apply to this expungement proceeding, in which CYS had the burden of proving existence of substantial evidence supporting the indicated report of child abuse. The Bureau should have proceeded to hold a hearing despite V.W.'s nonappearance and to determine whether CYS met its burden. Hence, the Bureau erred in dismissing V.W.'s appeal as abandoned. Accordingly, we vacate the Bureau's order and remand this matter to the Bureau to hold a hearing and determine V.W.'s entitlement to expungement of the indicated report based on evidence presented by the parties at the hearing.
Tuesday, September 04, 2012
civil procedure - dismissal for lack of service by sheriff
Fonzone v. Tribune Corp. - Superior Court - August 31, 2012
http://www.pacourts.us/OpPosting/Superior/out/a15039_12.pdf
Dismissal of case for lack of proper service affirmed.
Plaintiff/Appellant had complaint served other than by the sheriff. Other methods of service do not supplant Rule 401, which requires service to be made by a sheriff in most instances. There is nothing in the record showing service by the sheriff.
Appellant’s alternative argument, that service deficiencies are irrelevant where Appellees in fact had the complaint, are unavailing. As our Supreme Court has explained:
Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed. Without valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her. Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of the action against him or her. Cintas Corp. v. Lee's Cleaning Servs., 700 A.2d 915, 917-18 (Pa. 1997).
http://www.pacourts.us/OpPosting/Superior/out/a15039_12.pdf
Dismissal of case for lack of proper service affirmed.
Plaintiff/Appellant had complaint served other than by the sheriff. Other methods of service do not supplant Rule 401, which requires service to be made by a sheriff in most instances. There is nothing in the record showing service by the sheriff.
Appellant’s alternative argument, that service deficiencies are irrelevant where Appellees in fact had the complaint, are unavailing. As our Supreme Court has explained:
Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed. Without valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her. Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of the action against him or her. Cintas Corp. v. Lee's Cleaning Servs., 700 A.2d 915, 917-18 (Pa. 1997).
Friday, August 17, 2012
UC - vol. quit - abusive language by employer
Vito Rinaldi Chevrolet v. UCBR - August 16, 2012 - unreported memorandum decision (2-1)
http://www.pacourts.us/OpPosting/Cwealth/out/139CD12_8-16-12.pdf
The court remanded the case for findings about the employer's offer of other employment but sustained the board's findings that claimant had good cause to quit because of abuse language by a supervisor on two separate occasions. ("If you can’t handle your customers, there’s the F’in door.". . . "you know what F you. F you and F your 17 cars you sold last month, I’m tired of it, F you."
Profanity in the workplace and abusive conduct may present adequate justification to terminate one’s employment, and a claimant need not be subjected to such language or conduct indefinitely. Porco v. Unemployment Compensation Board of Review, 828 A.2d 426 (Pa. Cmwlth. 2003). However, a claimant must make a reasonable effort to maintain his employment, such as informing his supervisor of the offensive or abusive conduct. Id. See also First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811 (Pa. Cmwlth. 2008),
The dissent would have just sustained the board's grant of benefits and not remanded.
http://www.pacourts.us/OpPosting/Cwealth/out/139CD12_8-16-12.pdf
The court remanded the case for findings about the employer's offer of other employment but sustained the board's findings that claimant had good cause to quit because of abuse language by a supervisor on two separate occasions. ("If you can’t handle your customers, there’s the F’in door.". . . "you know what F you. F you and F your 17 cars you sold last month, I’m tired of it, F you."
Profanity in the workplace and abusive conduct may present adequate justification to terminate one’s employment, and a claimant need not be subjected to such language or conduct indefinitely. Porco v. Unemployment Compensation Board of Review, 828 A.2d 426 (Pa. Cmwlth. 2003). However, a claimant must make a reasonable effort to maintain his employment, such as informing his supervisor of the offensive or abusive conduct. Id. See also First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811 (Pa. Cmwlth. 2008),
The dissent would have just sustained the board's grant of benefits and not remanded.
UC - free-lance writer - self-employment - 2-part test - indpt. trade - burden of proof
Mitchell v. UCBR - Cmwlth. Court - August 17, 2012 - unreported memorandum decision
http://www.pacourts.us/OpPosting/Cwealth/out/1910CD11_8-17-12.pdf
In an unemployment compensation benefits proceeding, the determination of whether claimant is or is not self-employed is a question of law subject to review by Commonwealth Court. Melnychuk v. UCBR, 520 A.2d 89 (Pa. Cmwlth. 1987). Because section 402(h) of the Law does not define the term "self-employment," our courts look to section 4(l)(2)(B) of the Law, which defines "employment" as:
services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that (a) such individual has been and will continue to be free from control or direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business. 43 P.S. §753(1)(2)(B).
This Court has repeatedly held that for a claimant to be declared to be self-employed, both elements of section 4(l)(2)(B) must be satisfied. Silver v. UCCBR, 34 A.3d 893 (Pa. Cmwlth. 2011). Typically, the employer has the burden of proving that a claimant is self-employed, but where, as here, the bureau commences proceedings that culminate in a suspension of benefits due to self-employment, the bureau carries the burden. Id.
In Buchanan v. UCBR, 581 A.2d 1005 (Pa. Cmwlth. 1990), we held that setting up a booth at a flea market to sell homemade jewelry did not constitute customary engagement in an independently established trade, occupation, profession or business even where the claimant had invested $2,028.00 to buy tools and spools of gold chain for the project. More recently, this Court held that evidence that the claimant was performing limited work as a consultant on an as-needed basis and performed only a total of twenty-two hours of work over a three day basis was “simply not enough to demonstrate that Claimant is customarily engaged in an independently established trade, occupation, profession, or trade.” Minelli v. UCBR, 39 A.3d 593, 598 (Pa. Cmwlth. 2012) (internal quotations omitted).
In the present case, Claimant was found eligible for and was receiving benefits after the loss of his previous employment, and he properly reported his minimal earnings to the Department. Like the claimants in Minelli and Silver, Claimant has performed a small amount of work on an as-needed, de minimus basis. There is no evidence indicating that Claimant intended to establish his own business, and, pursuant to Minelli and Silver, we conclude that writing ten articles while actively seeking full-time employment does not amount to becoming “customarily engaged in an independently established trade, occupation, or business,” under section 4(l)(2)(B), rendering Claimant ineligible for benefits under section 402(h) of the Law.
Accordingly, the Board’s order is reversed.
________________
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/1910CD11_8-17-12.pdf
In an unemployment compensation benefits proceeding, the determination of whether claimant is or is not self-employed is a question of law subject to review by Commonwealth Court. Melnychuk v. UCBR, 520 A.2d 89 (Pa. Cmwlth. 1987). Because section 402(h) of the Law does not define the term "self-employment," our courts look to section 4(l)(2)(B) of the Law, which defines "employment" as:
services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that (a) such individual has been and will continue to be free from control or direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business. 43 P.S. §753(1)(2)(B).
This Court has repeatedly held that for a claimant to be declared to be self-employed, both elements of section 4(l)(2)(B) must be satisfied. Silver v. UCCBR, 34 A.3d 893 (Pa. Cmwlth. 2011). Typically, the employer has the burden of proving that a claimant is self-employed, but where, as here, the bureau commences proceedings that culminate in a suspension of benefits due to self-employment, the bureau carries the burden. Id.
In Buchanan v. UCBR, 581 A.2d 1005 (Pa. Cmwlth. 1990), we held that setting up a booth at a flea market to sell homemade jewelry did not constitute customary engagement in an independently established trade, occupation, profession or business even where the claimant had invested $2,028.00 to buy tools and spools of gold chain for the project. More recently, this Court held that evidence that the claimant was performing limited work as a consultant on an as-needed basis and performed only a total of twenty-two hours of work over a three day basis was “simply not enough to demonstrate that Claimant is customarily engaged in an independently established trade, occupation, profession, or trade.” Minelli v. UCBR, 39 A.3d 593, 598 (Pa. Cmwlth. 2012) (internal quotations omitted).
In the present case, Claimant was found eligible for and was receiving benefits after the loss of his previous employment, and he properly reported his minimal earnings to the Department. Like the claimants in Minelli and Silver, Claimant has performed a small amount of work on an as-needed, de minimus basis. There is no evidence indicating that Claimant intended to establish his own business, and, pursuant to Minelli and Silver, we conclude that writing ten articles while actively seeking full-time employment does not amount to becoming “customarily engaged in an independently established trade, occupation, or business,” under section 4(l)(2)(B), rendering Claimant ineligible for benefits under section 402(h) of the Law.
Accordingly, the Board’s order is reversed.
________________
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.
Thursday, August 16, 2012
Attorneys - Pa. Supreme Court - exclusive power to court to regulate
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…."
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…."
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.
_________
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.
_________
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.
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