Stokes v. RealPage Inc. – ED Pa. – October
18, 2016
MTD
denied - Defendant, RealPage, Inc.
motion to dismiss Count Two of the Complaint for lack of standing
denied.
Thursday, October 20, 2016
Tuesday, October 18, 2016
disability - mental disability - complete history - pre-application/onset hospitalizations
Patel v. Colvin – ED Pa. –
October 13, 2016
Plaintiff stated that her
disability began on May 1, 2010, and filed the application on August 5, 2011.33
In assessing Plaintiff’s treatment record, the ALJ stated that records before
the application date of August 5, 2011, were “not from the relevant
period.”
With regard to Plaintiff’s
hospitalizations, the ALJ noted which hospitalizations preceded the “alleged
onset date”and apparently discounted them on this basis. This was error.
The regulations specifically
acknowledge the importance of a comprehensive view of a claimant’s condition
over a significant period of time i.e. the need for longitudinal evidence.
More specifically, the
regulations state that a “complete medical history,” means “the records of your
medical source(s) covering at least the 12 months preceding the month in which
you file your application.”
This is particularly relevant
in this case, where Plaintiff alleged an onset date of May 1, 2010, and the
hospitalizations occurred after that date, with most occurring within one year
of the application date. Of particular concern is the ALJ’s apparent discounting
of Plaintiff’s lengthy hospitalization from July 21, 2011 through August 24,
2011, at the time of Plaintiff’s application.
In addition, it appears that
the ALJ applied a mechanical assessment of Plaintiff’s medical records,
focusing on whether a hospitalization lasted more than two weeks and seemingly
discounting or rejecting as irrelevant any that did not, without regard to
whether “the duration and functional effects of the episodes are of equal
severity and may be used to substitute for the listed finding” as required by
the regulations.
Friday, September 23, 2016
employment - employee v. indpt. contractor - class certified - common evidence - franchise agreement
Williams
et al. v. Jani-King of Philadelphia – 3d Cir. – September 21, 2016
Disputes
about whether workers are properly classified as employees or independent
contractors are a classic and reoccurring issue in American law. This case
presents such a dispute. Jani-King, the world’s largest commercial cleaning
franchisor, classifies its franchisees as independent contractors.
Two
Jani-King franchisees, Darryl Williams and Howard Brooks, assert that they are
misclassified and should be treated as employees. On behalf of a class of
Jani-King franchisees in the Philadelphia area, Brooks and Williams seek unpaid
wages under the Pennsylvania Wage Payment and Collection Law (WPCL), 43 Pa. Stat.
§§ 260.1–260.12.
The
District Court granted the Plaintiffs’ motion for class certification. In this
interlocutory appeal under Federal Rule of Civil Procedure 23(f), we consider
whether the misclassification claim can be made on a class-wide basis through
common evidence, primarily the franchise agreement and manuals.
We
hold that the claims in this case are susceptible to class-wide determination
and that the District Court did not abuse its discretion by certifying the
class.
----------------------
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Tuesday, September 20, 2016
UC - willful misconduct - fighting
Armstrong World Industries v. UCBR –
Cmwlth. Court – 9-15-16 – unreported* memorandum opinion
“Even
in the absence of a written policy, fighting may be considered a disregard of
the standards of behavior that an employer can expect from its employees, even
when the claimant was not the initial aggressor.” Miller v. Unemployment
Compensation Board of Review, 83 A.3d 484, 487 (Pa. Cmwlth. 2014).
In
such situations, where a claimant has the opportunity to retreat and seek help
but instead willingly continues to escalate the situation, the claimant’s
actions are “neither reasonable nor justifiable and [do] not constitute good
cause.” Rivera v. Unemployment Compensation Board of Review, 526 A.2d 1253,
1256 (Pa. Cmwlth. 1987).
However,
when a claimant has a reasonable belief of imminent bodily harm and fears he is
in danger of an assault, he is justified in using reasonable retaliatory force
for purposes of self-defense. Miller, 83 A.3d at 487 (“using reasonable force
in self-defense is, in some situations, justifiable”); see also Sun Oil Company
v. Unemployment Compensation Board of Review, 408 A.2d 1169, 1171 (Pa. Cmwlth.
1979) (“A reasonable belief of imminent bodily harm and feared danger of an
assault justifies reasonable retaliatory force.”).
--------------------
*An unreported
Commonwealth Court case may not be cited binding precedent but can be cited for
its persuasive value. See 210 Pa.
Code § 69.414(b) and Pa. R.A.P.
3716
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Lexis, Google Scholar)
Wednesday, September 14, 2016
professional licenses - suspension/revocation - strict construction of statute
McGrath
v. Bureau of Professional and Occup. Affairs – Cmwlth. Court – August 24, 2016
BPOA
intepretation of statute to requir 10-year suspension of nursing license
overturned, because BPOA failed to follow statutory construction law requiring ambiguities
in penal statutes must be strictly construed against the government, Section
1928(b)(1) of the Statutory Construction Act, 1 Pa. C.S. § 1928(b)(1); Richards
v. Pennsylvania Board of Probation and Parole, 20 A.3d 596, 600 (Pa. Cmwlth.
2011) (en banc) (discussing the common law rule of lenity). The Court overruled a contrary decision
reached in the case of Packer v. Bureau of Professional and Occupational
Affairs, Department of State, State Board of Nursing, 99 A.3d 965 (Pa. Cmwlth.
2014), petition for allowance of appeal denied, 109 A.3d 680 (Pa. 2015).
statutes
imposes punishment are penal and must by strictly construed
Where a
statute imposes punishment, such as the suspension or revocation of a
professional license, for specified acts, such statutes are penal in
nature. See Pa. State Real Estate Comm’n v. Keller, 165 A.2d 79, 80 (Pa. 1960).
Section 1928(b)(1) of the Statutory Construction Act, 1 Pa. C.S. § 1928(b)(1),
requires that penal provisions “shall be strictly construed.” Consistent with
this statutory requirement is the rule of lenity, which originated in common
law, and provides that:
[a]mbiguities
should and will be construed against the government. This principle has
its foundation in the rule of lenity that provides that any ambiguity in a
criminal statute will be construed in favor of the defendant. The rule of
lenity requires a clear and unequivocal warning in language that people
generally would understand, as to what actions would expose them to
liability for penalties and what the penalties would be. Application of
the rule of lenity extends beyond the context of criminal statutes. penalties would be. Application of the
rule of lenity extends beyond the context of criminal statutes.
Richards,
20 A.3d at 600 (emphasis added). “Underpinning the rule of lenity is the
fundamental principle of fairness that gives validity to our laws” by providing
individuals the clear and unequivocal warning discussed above. Sondergaard v.
Dep’t of Transp., Bureau of Driver Licensing, 65 A.3d 994, 997 (Pa. Cmwlth.
2013). “To apply the rule of lenity, it is not enough that a statute is penal
it must be ambiguous as well.” Id. at 999.
Statutory
provisions that impose punishment, such as the suspension or revocation of a professional
license, for specified acts are considered penal in nature. Pa. State
Real Estate Comm’n, 165 A.2d at 80. As previously described, the rule of lenity
provides that the statute should provide a clear and unequivocal warning in
language that people generally would understand, as to what actions would
expose them to liability for penalties and what the penalties would be. Additionally,
ambiguities should be strictly construed against the government.
Board changed
its long-standing statutory interpretation w/o adequate warning
The language of the statute in this cases does not provide “a
clear and unequivocal warning . . . that people generally would understand” about
the what is to happen for the nurse’s wrongful conduct. This is particularly troubling where the
Board changed its long-standing interpretation of those provisions without
providing any formal or informal warning, via regulation or policy
guideline, of that change to the licensees over whom the Board exercises
authority. As these provisions are
ambiguous and do not provide “a clear
and unequivocal warning,” they “should [have been] . . . construed against the
government . . . [and] in favor of the [licensee].” Richards, 20 A.3d at 600
(internal quotation omitted). To hold otherwise would violate the “fundamental
principle of fairness that gives validity to our laws.” Sondergaard, 65 A.3d at
997.
----------------------.
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Tuesday, September 13, 2016
attorney fees - accurate, complete time records
Rougvie et al. v. Ascena Retail Group –
ED Pa. – Sept. 12, 2016
As
we found in our July 29, 2016 Opinion, Class Counsel performed extraordinary
work for the over 18.4 Million Class Members. Class Counsel is entitled to be
paid now for reasonable hours for their efforts on behalf of the Class Members
who selected immediate cash or a voucher.
But
when, as here, Class Counsel representing over 18.4 Million consumers in a
national consumer protection case largely based on state statutes submit time
records without adequate descriptions or otherwise do not contemporaneously
maintain time records, we must not approve funds allocated for Class Members to
pay for ambiguous uncertain services. We
provided Class Counsel three opportunities to clarify their services but still
cannot determine the benefit to the Class from several time entries. At this
initial hourly fee stage, we will not approve payment of all of the proffered
hourly billings without support to be paid from the Class recovery.
----------------
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Wednesday, August 31, 2016
admin. law - credibility - determination on written record
Long
Run Timber Co. v. DCNR – Cmwlth. Court – August 30, 2016
Credibility
determinations may properly be made by the administrative adjudicators from
reading a transcript. Administrative
agencies frequently use a system where a hearing examiner takes the evidence,
but the ultimate fact-finder is the board or commission. Cavanaugh v. Fayette
Cnty. Zoning Hearing Bd., 700 A.2d 1353, 1355-56 (Pa. Cmwlth. 1997); Kramer v.
Dep’t of Ins., 654 A.2d 203, 206 (Pa. Cmwlth. 1995).
Thus,
a board or commission has the power to make findings of fact solely on its
review of the record. Kramer, 654 A.2d at 206. Such a process does not deny a
litigant any due process rights. R. v. Dep’t of Pub. Welfare, 636 A.2d 142, 145
(Pa. 1994). Here, all of the Board members reviewed the full record from the
two-day hearing before making the decision to dismiss the Complaint. They were
acting within their authority when they made their credibility determinations,
and such determinations 21 are not reviewable by this Court. Moreover, the
bases on which the Board rejected appellant’s proferred evidence are supported
by substantial evidence.
As
with other administrative agencies, all determinations of witness credibility
and evidentiary weight are solely within the province of the Board. Pa. Game
Comm’n v. K.D. Miller Lumber Co., Inc., 654 A.2d 6, 9-10 (Pa. Cmwlth. 1994).
“[I]t is not the function of this court to judge the weight and credibility of
the evidence given before an administrative agency.” Id. at 10. Administrative agencies frequently make
credibility determinations on records made before a hearing officer or
administrative law judge. Cavanaugh, 700 A.2d at 1355-56; Kramer, 654 A.2d at
206.
Wednesday, August 17, 2016
HEMAP - reasonable prospect - income - anticipated spousal support too speculative
Barzilayev v. PHFA – Cmwtlh. Court –
August 17, 2016 – unreported* memorandum decision
Held: PHFA did not err when it decided to not
include a speculative, anticipated award of spousal support in the calculation
of Homeowner’s monthly income.
We do
not review the record to determine if a homeowner’s circumstances “militate
toward a grant of emergency assistance”; rather we review only to see if there
is substantial evidence to support the necessary findings, or to ensure that an
error of law was not committed. Mull v. Pa. Hous. Fin. Agency, 529 A.2d 1185,
1188 (Pa. Cmwlth. 1987). “Substantial evidence has been defined as such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Cullins v. Pa. Hous. Fin. Agency, 623 A.2d 951, 953 (Pa. Cmwlth.
1993). To prove abuse of discretion, “the petitioner must persuade us that the
fact finder capriciously and arbitrarily disregarded evidence which one of
ordinary intelligence could not possibly challenge or entertain the slightest
doubt as to its truth.” Koch v. Pa. Hous. Fin. Agency, 505 A.2d 649, 650-51
(Pa. Cmwlth. 1986) (emphasis added).
----------------------
*An unreported
Commonwealth Court case may not be cited binding precedent but can be cited for
its persuasive value. See 210 Pa.
Code § 69.414(b) and Pa. R.A.P.
3716
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Sunday, August 14, 2016
UC - vol. quit - substantial change
Uniontown
Medical Rehab. v. UCBR – Cmwlth. Court – July 29, 2016 – unreported* memorandum
opinion
Claimant
had good cause to quit her clerical job at doctor’s office, where the referee
and Board found that there was substantial unilateral change in working
conditions, to wit, a “constant threatening to cut the claimant’s hours to
part-time” and reduce her pay by $3.00/hour, if she refused to work all of the
overtime hours that the doctor considered necessary to get the job done.
----------------------
*An unreported Commonwealth
Court case may not be cited binding precedent but can be cited for its
persuasive value. See 210 Pa.
Code § 69.414(b) and Pa. R.A.P.
3716
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and date to find the opinion in another source (e.g., Westlaw, Lexis, Google
Scholar)
Tuesday, August 09, 2016
UC - willful misconduct - delib. violation of ER policy - WM v. rule violation
Employee’s
deliberate decision to flout ER email policy on internal mass mailings
constituted willful misconduct, despite ER policy for discipline short of
discharge, where ER policy gave it discretion to impose greater sanction, and
it chose to do so.
When Claimant’s
application for religious exemption to ER mandatory flu vaccination was denied,
he sent out a series of 13 mini-mass mailings to co-workers, after he was
unable to send out single mass mailing because of lack of permission.
The evidence reflects
Claimant’s acknowledgement of Employer’s e-mail policies and his deliberate
decision to flout Employer’s prohibition against mass e-mails by circumventing
the restrictions on the distribution list and sending thirteen e-mails. Accordingly, we conclude that Claimant’s
actions constituted willful misconduct. Furthermore, the fact that Employer’s
policies provide for discipline short of discharge does not negate Claimant’s
termination for willful misconduct where its policies clearly afford it
discretion to impose a different and greater sanction for his actions and it
chose to do so. See Johnson v. UCBR, 744 A.2d 817,
821 (Pa. Cmwlth. 2000); Seton Co. v. UCBR, 663 A.2d
296, 299 (Pa. Cmwlth. 1995).
------------------------------------------
*An
unreported Commonwealth Court case may not be cited binding precedent but can
be cited for its persuasive value. See 210
Pa. Code § 69.414(b)
and Pa.
R.A.P. 3716
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Monday, August 08, 2016
tax sales - RETSL - right to installment plan - stay - "default"
Barker
v. Chester Co. Tax Claim Bureau – Cmwlth. Court – July 27, 2016
The
court set aside the sale and reversed the lower court, holding that
- Taxpayers did not default under a
2010 installment agreement under sec. 603 where, although they were late with
some intermediate installment payments, they made the final payment within the
applicable period – “when due.”
Therefore, there was no “default” of the agreement, and the taxpayers
were not disqualified from eligibility for a 2013 installment agreement under
sec. 603, which bars eligibility if there was default on agreement within prior
three years.
- Sale also set aside because, even
assuming there was a default, the TCB’s admitted
failure to give the taxpayers notice of such violated the notice requirement
under sec. 603.
There
was a lot of good language in the opinion, including the following:
-
notice of right to installment agreement must be given by TCB upon payment of
25% of the taxes due - An upset sale
must be stayed where a taxpayer pays 25% of the taxes due and agrees to an
installment plan for the remainder. Further, where a taxpayer makes a payment
of 25% or more, “the tax claim bureau must advise the taxpayer of the
Section 603 option because its failure to do so ‘would deprive the owner of his
or her property without due process of law.’” In In Re Consolidated Return
of the Tax Claim Bureau of the County of Beaver from the August 16, 2011 Upset
Sale for Delinquent Taxes, 105 A.3d 76 (Pa. Cmwlth. 2014), petition for
allowance of appeal denied, 121 A.3d 497 (Pa. 2015), Id. at
82 (emphasis added) (quoting Darden, 629 A.2d at 323).
- purpose of RETSL is collection of taxes, not taking of taxpayer’s
property - The statute was not
enacted to deprive citizens of their property or to create investment
opportunities for those who attend tax sales but, rather, to assist the
collection of taxes. Stanford–Gale v. Tax Claim Bureau of Susquehanna County,
816 A.2d 1214, 1216 (Pa. Cmwlth. 2003). The United States Supreme Court has
held that due process is implicated in any taking of property for the
collection of taxes, stating that “[p]eople must pay their taxes, and the
government may hold citizens accountable for tax delinquency by taking their
property. But before forcing a citizen to satisfy his debt by forfeiting his
property, due process requires the government to provide adequate notice of the
impending taking. Jones v. Flowers,
547 U.S. 220, 234 (2006). Because of these due process concerns, this Court has
explained that
the
focus is not on the alleged neglect of the owner, which is often present in
some degree, but on whether the activities of the Bureau comply with the
requirements of the statute. Smith v.
Tax Claim Bureau of Pike County, 834 A.2d 1247, 1251 (Pa. Cmwlth. 2003). A
failure by a tax claim bureau to comply with each and every statutory
requirement will nullify a sale. Id. at 1252.
----------------------
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Wednesday, July 20, 2016
criminal history record - expungement - summary conviction - "five years following"
Commonwealth
v. Giulian – July 19, 2016 – Pa. Supreme Court
Majority
http://www.pacourts.us/assets/opinions/Supreme/out/J-49-2016mo%20-%201027386528379439.pdf?cb=1
Concurring
http://www.pacourts.us/assets/opinions/Supreme/out/J-49-2016co%20-%201027386528379441.pdf?cb=1
Concurring
http://www.pacourts.us/assets/opinions/Supreme/out/J-49-2016co1%20-%201027386528379462.pdf?cb=1
We
consider the statutory requirements for expungement of criminal history record
information for summary convictions pursuant to 18 Pa.C.S. §9122(b)(3) and
conclude the lower courts erred in holding expungement unavailable as a matter
of law in this matter. We therefore reverse and remand.
Appellant
Victoria C. Giulian, then twenty years old, was arrested on April 20, 1997, and
ultimately pleaded guilty to the summary offenses of public drunkenness, 18
Pa.C.S. §5505, and harassment, 18 Pa.C.S. §2709(a)(1). At this same time,
appellant was also charged with the misdemeanor offense of disorderly conduct,
18 Pa.C.S. §5503(a)(2), a charge later withdrawn, and the summary offense of
underage drinking, 18 Pa.C.S. §6308(a), to which she pleaded guilty.
Appellant was then arrested on September 27, 1998, and pleaded
guilty to the summary offense of criminal mischief, 18 Pa.C.S. §3304.
Appellant
has had no arrests since September 27, 1998. On May 8, 2013, appellant filed a
petition seeking expungement of these summary convictions from her criminal history
record under Section 9122(b)(3), which provides: (b) Generally.--Criminal
history record information may be expunged when: * * * (3)(i) An individual who
is the subject of the information petitions the court for the expungement of a
summary offense and has been free of arrest or prosecution for five years
following the conviction for that offense. (ii) Expungement under this
paragraph shall only be permitted for a conviction of a summary offense. 18
Pa.C.S. §9122(b)(3).
The
Court agreed with appellant that the Superior Court incorrectly read into the
statute a requirement that the five arrest-free years be “immediately”
following the conviction sought to be expunged, when the actual text of the
statute does not include that qualifier.
---------------------
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Tuesday, July 19, 2016
UC - late appeal - non-negligent conduct of claimant
Claimant allowed to appeal nunc pro
tunc from decision that she had received fault overpayments where --
-
Claimant received benefits between 11-16-13 and 5-24-14
-
On May 15, 2015, the Dept. issued an overpayment notice, charging fault OP
-
Claimant had moved from her old address, at which she received benefits, about
a year before the OP notice was sent
-
CL eventually learned of OP notice and filed appeal, beyond appeal date
-
Claimant had not provided forwarding address to USPS because she was being
hounded by creditors
Court held that under applicable late
appeal jurisprudence, e.g., Hessou v. UCBR, 942 A.2d 194, 198 (Pa. Cmwlth.
2008), the “non-negligent conduct of the claimant” exception should be
applied. Nothing that CL did was
negligent. She had moved more than a
year after her benefits had ended and had no duty or reason to let UC authorities
know of this. The testimony showed that
CL had an unstable housing situation and moved to avoid creditors, but not that
she was in any way negligent.
-----------------------------
*An unreported Commonwealth
Court case may not be cited binding precedent but can be cited for its
persuasive value. See 210 Pa.
Code § 69.414(b) and Pa. R.A.P.
3716
If the case is old, the link
may have become stale and may not work, but you can use the case name, court,
and date to find the opinion in another source (e.g., Westlaw, Lexis, Google
Scholar)
Friday, July 15, 2016
civil procedure - complaint - right to amend - PaRCP 1033
Blackwood, Inc. v. Reading Blue Mtn.
and Norther Railroad Col – Superior Court – July 15, 2016
Under
Pa.R.C.P. 1033, a party can amend his pleading either with the consent of the
other party or with the court’s permission. “Leave to amend lies within the
sound discretion of the trial court and the right to amend should be liberally
granted at any stage of the proceedings unless there is an error of law or
resulting prejudice to an adverse party.” Hill v. Ofalt, 85 A.3d 540, 557
(Pa.Super. 2014) (quoting Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996)).
Under
the pertinent rule: A party, either by filed consent of the adverse party or by
leave of court, may at any time change the form of action, add a person as a
party, correct the name of a party, or otherwise amend the pleading. The
amended pleading may aver transactions or occurrences which have happened
before or after the filing of the original pleading, even though they give rise
to a new cause of action or defense. An amendment may be made to conform the
pleading to the evidence offered or admitted. Pa.R.C.P. 1033. However,
amendment is not permitted to present a new cause of action where the statute
of limitations has expired. See Phillips v. Lock, 86 A.3d 906 (Pa.Super. 2014).
Generally,
an abuse of discretion occurs if a complaint is dismissed without leave to
amend. Hill, supra. “There may, of course, be cases where it is clear that
amendment is impossible and where to extend leave to amend would be futile.
However, the right to amend should not be withheld where there is some
reasonable possibility that amendment can be accomplished successfully.” Id. at
557 (citation and emphasis omitted).
------------------------
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Tuesday, July 12, 2016
housing - service/support animal - reasonable accommodation
Kennedy
House v. Phila. Commission on Human
Relations – Cmwlth. Court – June 11, 2016
Held,
that refusal to allow woman to have her dog live with her, in residence with
no-dog policy, did not violate city fair housing ordinance or federal Fair
Housing Act, 42 USC 3604(f). There is an
extensive discussion of federal fair housing statutes and regs. Potential tenant did not establish the nexus
between her disability and the assistance provided by her dog.
---------------
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Friday, July 08, 2016
UC - accident - negligence v. willful misconduct
General
Pipe Cleaning and Sewer v. UCBR – Cmwlth. Court – July 7, 2016 – unpublished* memorandum
opinion
The
court affirmed the UCBR decision that claimant truck-driver had not committed
willful misconduct as a result of his negligence in causing an accident, which
caused $100,000 damage. Substantial
evidence supported the Board’s findings that
a) claimant was discharged because of the
accident, and not a violation of ER rules.
b) claimant did not deliberately
cause the accident – cf. Heitczman v. UCBR, 638 A.2d 461 (claimant knowingly
violated ER rule)
Claimant’s
actions in causing the accident and the damage to the employer’s vehicle, were
clearly negligent. Negligence, however, is not willful. Therefore, as
repeatedly held by the courts benefits cannot be denied under Section 402(e) of
the Law. See Myers [v. Unemployment Comp. Bd. of Review, 625 A.2d
622 (Pa. 1997)]; Navickas [v. Unemployment Comp. Bd. of Review,
787 A.2d 284 (Pa. 2001)]; Grieb [v. Unemployment Comp. Bd. of Review,
827 A.2d 422 (Pa. 2002).
The
courts have repeatedly held that for a rule violation to constitute willful
misconduct, the violation must be done knowingly and deliberately.
Eshbach v. Unemployment Comp. Bd. of Review, 855 A.2d 943 (Pa. Cmwlth. 2004);
BK Foods, Inc. v. Unemployment Comp. Bd. of Review, 547 A.2d 873 (Pa. Cmwlth.
1988); Kriebel v. Unemployment Comp. Bd. of Review, 426 A.2d 1240 (Pa. Cmwlth.
1981); Frazier v. Unemployment Comp. Bd. of Review, 411 A.2d 580 (Pa. Cmwlth.
1980); Holomshek v. Unemployment Comp. Bd. of Review, 395 A.2d 708 (Pa. Cmwlth.
1979). Claimant’s inadvertent conduct here does not amount to willful
misconduct.
-----------------------
* An
unreported Commonwealth Court case may not be cited binding precedent but can
be cited for its persuasive value. See 210 Pa.
Code § 69.414(b) and Pa. R.A.P.
3716
If the case is
old, the link may have become stale and may not work, but you can use the case
name, court, and date to find the opinion in another source (e.g., Westlaw,
Lexis, Google Scholar)
Thursday, July 07, 2016
UC - statute v. regulation - registration requirement - exceptions - recall to work
Dept.
of Labor & Industry v. UCBR – Cmwlth. Court – June 8, 2016 – unreported* memorandum
opinion
The
Court upheld that Board’s decision, which found that claimant was exempt from
the registration requirement of 401(b)(1)(l), 43 P.S. 801(b)(1)(l), because she
had been recalled to work. The court
rejected the Dept.’s argument that its regulation, 34 Pa. Code 65,11(g)(2),
which required a recall date in writing, prevailed of the statute, 43 P.S.
801(b)(5), which did not. The employer
notice of recall in this case was oral, not written.
Section
401(b)(6) authorizes the Board to “waive or alter” the registration requirement
where “compliance with such requirements would be oppressive or ... would be
inconsistent with the purposes of this act.” 43 P.S. §801(b)(6). Stated
otherwise, an untimely registration is not “a per se violation that
automatically disqualifies a claimant from unemployment.” Department of Labor
and Industry, 131 A.3d at 600. The
court agrees with the “the Board’s case-by-case approach to evaluating whether
a claimant had good cause for failing to timely register for employment search
services under Section 401(b)(1)(i) of the Law” and to exercise its judgment
accordingly. Id. at 602.
The
Board’s discretion to “waive or alter” the registration requirement “is aligned
with the remedial and humanitarian objectives of the Law, as set out in 43 P.S.
752.
------------------------------
*An unreported
Commonwealth Court case may not be cited binding precedent but can be cited for
its persuasive value. See 210 Pa.
Code § 69.414(b) and Pa. R.A.P.
3716
If the case is
old, the link may have become stale and may not work, but you can use the case
name, court, and date to find the opinion in another source (e.g., Westlaw,
Lexis, Google Scholar)
Wednesday, July 06, 2016
IFP - denial - reasons
Lynch
v. Gittelmacher – Cmwlth. Court – Kjune 8, 2016 – unreported* memorandum
opinion
The
lower court erred when it denied an IFP petition without giving reasons. Pa. R.C.P. No. 240 (c)(3) requires that , “
If the petition is denied, in whole or in part, the court shall briefly state
its reasons.”
An
order denying in forma pauperis status in a civil case is a final and
appealable order because “[a] litigant who is denied the ability to bring a
cause of action due to his true inability to pay the costs is effectively put
out of court.” Grant v. Blaine, 868 A.2d 400, 402-03 (Pa. 2005).
“A
trial court’s belated 1925(a) opinion does not cure this problem, since the
brief statement of reasons enables the party to correct any defects in the
petition and the 1925(a) opinion does not.” Goldstein v. Haband Company, Inc.,
814 A.2d 1214, 1215 (Pa. Super. 2002).
--------------------------
*An unreported
Commonwealth Court case may not be cited binding precedent but can be cited for
its persuasive value. See 210 Pa.
Code § 69.414(b) and Pa. R.A.P.
3716
If the case is
old, the link may have become stale and may not work, but you can use the case
name, court, and date to find the opinion in another source (e.g., Westlaw,
Lexis, Google Scholar)
Thursday, June 23, 2016
drivers license - suspension - delay in reporting conviction
Capizzi v. DOT – Cmwlth. Court – June 23,
2016
As a general rule, delays in reporting
driving convictions to DOT do not negate a license suspension, unless a) the
delays are chargeable to DOT and b) the delay results in prejudice to the
driver. However, a suspension can be
negated where the delay is extraordinarily long (e.g. seven or eight years) and
results in prejudice, even if the delay is attributable to the clerk of courts,
rather than DOT. See, Gingrich v. Department of
Transp., Bureau of Driver Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016).
Wednesday, June 22, 2016
custody - relocation
D.K.D. v. A.L.C. – Superior
Court – June 15, 2016
The Court reversed the grant of
mother’s relocation motion (Florida), where she had already moved with the
child, and ordered the return of the child to Pennsylvania, in custody of
father.
The court held that “the record
will not sustain the trial court’s consideration of the § 5337(h) relocation
factors. Specifically, the trial court erred in (1) finding that Mother would
not further thwart Father’s relationship with L.D. following relocation; (2)
ignoring that Mother’s principal motivation was to return to her native state
of Florida and her concern for L.D.’s developmental condition was secondary;
(3) accepting as adequate, Mother’s chiefly symbolic search for employment
opportunities in Pennsylvania; and (4) concluding that Mother’s financial
condition was so strained that relocation to Florida was unavoidable. “
These errors implicated five of
the ten factors listed in 23 Pa.C.S. § 5337(h)(2), (3), (5), (6), and (7) and
warranted reversing the trial court’s decision to grant Mother’s petition for
relocation. As the trial court's conclusions are unreasonable as
shown by the evidence of record, the court could “....not accept the court’s
conclusion that relocation is in L.D.’s best interest.”
The Court reversed the grant of
mother’s relocation motion (Florida), where she had already moved with the
child, and ordered the return of the child to Pennsylvania, in custody of
father.
The court held that “the record
will not sustain the trial court’s consideration of the § 5337(h) relocation
factors. Specifically, the trial court erred in (1) finding that Mother would
not further thwart Father’s relationship with L.D. following relocation; (2)
ignoring that Mother’s principal motivation was to return to her native state
of Florida and her concern for L.D.’s developmental condition was secondary;
(3) accepting as adequate, Mother’s chiefly symbolic search for employment
opportunities in Pennsylvania; and (4) concluding that Mother’s financial
condition was so strained that relocation to Florida was unavoidable. “
These errors implicated five of
the ten factors listed in 23 Pa.C.S. § 5337(h)(2), (3), (5), (6), and (7) and
warranted reversing the trial court’s decision to grant Mother’s petition for
relocation. As the trial court's conclusions are unreasonable as
shown by the evidence of record, the court could “....not accept the court’s
conclusion that relocation is in L.D.’s best interest.”
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