courts - coordinate jurisdiction rule - disparate rulings by judges of same court

Rellick-Smith v. Rellick and Vassal – Pa. Supreme Court – October 20, 2021 – reported opinion
majority         https://www.pacourts.us/assets/opinions/Supreme/out/J-25-2021oajc%20-%20104928653149485274.pdf?cb=1

Concurring    https://www.pacourts.us/assets/opinions/Supreme/out/J-25-2021oajc%20-%20104928653149485274.pdf?cb=1

Dissent           https://www.pacourts.us/assets/opinions/Supreme/out/J-25-2021do%20-%20104928653149485169.pdf?cb=1

Dissent           https://www.pacourts.us/assets/opinions/Supreme/out/J-25-2021do1%20-%20104928653149485261.pdf?cb=1

 

Opinion announcing judgment of the court

In this appeal by allowance, we consider whether the Superior Court erred in affirming an order of the trial court that permitted the appellees to file an amended answer to include the affirmative defense of statute of limitations, which a different trial court judge previously ruled was waived. As we conclude that the second trial judge’s order violated the coordinate jurisdiction rule in this regard, we hold that the Superior Court erred in affirming his order, and, accordingly, we reverse the Superior Court’s decision, vacate in part the trial judge’s order, and remand the matter to the trial court for further proceedings consistent with this opinion. 

Under the coordinate jurisdiction rule, “[j]udges of coordinate jurisdiction sitting in the same case should not overrule each others’ decisions.” Ryan, 813 A.2d at 795 (quoting Starr, 664 A.2d at 1331). Beyond promoting the goal of judicial economy, the coordinate jurisdiction rule serves “(1) to protect the settled expectations of the parties; (2) to insure [sic] uniformity of decisions; (3) to maintain consistency during the course of a single case; (4) to effectuate the proper and streamlined administration of justice; and (5) to bring litigation to an end.” Id. (quoting Starr, 664 A.2d at 1331). 

[D]eparture from the coordinate jurisdiction rule “is allowed only in exceptional circumstances such as where there has been an intervening change in the controlling law, a substantial change in the facts or evidence giving rise to the dispute in the matter, or where the prior holding was clearly erroneous and would create a manifest injustice if followed.” Id. (quoting Starr, 664 A.2d at 1332). 

UC - voluntary quit - reasonable effort to maintain employment

Lundberg v. UCBR – Cmwlth. Court – October 14, 2021 – unpublished memorandum opinion*

 

https://www.pacourts.us/assets/opinions/Commonwealth/out/29CD21_10-14-21.pdf?cb=1

 

HELD: Claimant was not eligible for UC because she quit her job because of COVID concerns, but without either a) trying to maintain her job by discussing her concerns with her employer, and b) without telling  her employer the reason why she was quitting.

 

To show a necessitous and compelling reason under Section 402(b) of the Law, a claimant must show that (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and (4) the claimant made a reasonable effort to preserve her employment. Solar Innovations, Inc. v UCBR, 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012). 

Whether the reason for Claimant’s concerns were inadequate safety measures by Employer or fears related to her and/or her father’s health, or both, Claimant’s burden to make a reasonable effort to preserve her employment required her to give notice to Employer as to her concerns and health conditions and allow Employer the opportunity to modify her work conditions. 

This is the case even where there is a real and serious safety concern, see Iaconelli v. UCBR, 423 A.2d 754, 756 (Pa. Cmwlth. 1980), or where a claimant has a medical condition which endangers her, see St. Clair Hospital v. UCBR, 154 A.3d 401 (Pa. Cmwlth. 2017). Once communicated, an employer must have a reasonable opportunity to make accommodations with respect to the work conditions and/or medical condition. See Blackwell v. UCBR., 555 A.2d 279, 281-82 & n.6 (Pa. Cmwlth. 1989). 

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*An unreported, non-precedential Commonwealth Court case can be cited for its persuasive value but is not binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

 

 

 

 

 

 

UC - vol. quit - remand - lack of necessary findings, etc.

Hohl v. UCBR – Cmwlth. Court  reported decision – Sept. 22, 2021

https://www.pacourts.us/assets/opinions/Commonwealth/out/478CD20_9-22-21.pdf?cb=1

 

Held: Case remanded to UCBR, which failed to make the findings necessary for the court to make an informed decision in case involving a voluntary quit based on alleged threat to claimant by a co-worker. There were no findings about claimant’s credibility concerning a) the threat of physical violence against him by a co-worker, or b) whether claimant had provoked the threat.

 

From the opinion

 

Basic law on voluntary quit cases

In order for a claimant to establish cause of a necessitous and compelling nature, he must show: (1) the existence of circumstances that created real and substantial pressure to leave employment; (2) that such circumstances would compel a reasonable person to leave employment; (3) that he acted with ordinary common sense; and (4) that he made a reasonable attempt to continue his employment. Comitalo v. UCBR., 737 A.2d 342, 344 (Pa. Cmwlth. 1999). Where the claimant has failed to take all necessary and reasonable steps to preserve the employment relationship, he cannot demonstrate a necessitous and compelling reason for leaving his job and is ineligible for benefits. PECO Energy Co. v. UCBR., 682 A.2d 58, 61 (Pa. Cmwlth. 1996). “Each [situation] must be examined on an individual basis to understand the exigencies the claimant faced at the time [he] decided to separate from employment.” Kelly v. UCBR., 172 A.3d 718, 723 (Pa. Cmwlth. 2017), appeal denied, 184 A.3d 547 (Pa. 2018). 

 

Threats of violence

Threats of violence and fear for one’s safety may constitute necessitous and compelling circumstances for quitting employment. See Kama Corp. v. UCBR., 410 A.2d 974 (Pa. Cmwlth. 1980); see also Howell v. UCBR., 501 A.2d 718 (Pa. Cmwlth. 1985) (reversing denial of benefits when claimant quit over being struck in face by another employee and, after employee was terminated, employee returned to workplace and again struck claimant in face). As we explained in Scott v. UCBR (Pa. Cmwlth., No. 637 C.D. 2014, filed November 7, 2014):

Concern for personal safety, including fear of physical attacks by co[]workers, can constitute necessitous and compelling reasons for leaving employment. The mere fact that the claimant is subjectively afraid, however, is not sufficient; the safety risk must be objectively real to constitute a sufficient reason for resigning from one’s job.

Moreover, even where the safety concern is real and serious, the claimant must show that he made a reasonable attempt to seek protection from the danger and that the employer’s response gave him no choice but to leave his employment. If the employer has offered alternative work arrangements that could solve the safety issue, quitting without even attempting to work under those arrangements does not constitute a reasonable attempt to preserve employment and bars the claimant from benefits.[8] “If the employer promises to take action to alleviate the problem, good faith requires that the employee continue working until or unless the employer’s action proves ineffectual.” Craighead-Jenkins [v. UCBR, 796 A.2d [1031,] 1034 [Pa. Cmwlth. 2002]. Scott, slip op. at 5-6 (some citations omitted).

No burden on claimant to request alternative work arrangements -- The Referee had based his reasoning on the fact that Claimant “made no inquiry with [E]mployer to work in a different section of the warehouse or to work at a different [E]mployer location.”  While we have held that, in order to make a reasonable attempt to preserve his employment in a situation where an employer offers alternative work arrangements in response to a report of a physical threat, an employee must attempt the alternative work arrangement, see Scott, slip op. at 5-6, we have not required an employee to request an alternative work arrangement in the face of a physical threat. In Comitalo., 737 A.2d at 345. we held that, “[u]ltimately[,] [an] employer bears the responsibility for eliminating harassment against employees in the workplace,” recognizing that “there is a certain level of conduct that an employee will not be required to tolerate and that the Court will not place all responsibility upon an employee to resolve his . . . work dilemma.” Comitalo, 737 A.2d at 345. We believe an employer bears a similar level of responsibility in the face of threats of physical violence. Here, there is no record evidence that Employer offered Claimant an alternative work arrangement that Claimant rejected. 

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Editor’s note: The court could/should have discussed its black letter law about the need for admin. decisions to have findings and reasons.

Findings and reasons -  2 Pa. C.S. § 507 - “All adjudications….shall contain find­ings and the reasons for the adjudica­tion….”

                        a) Basic findings of fact are “essential to the validity” of an administrative decision. The findings must be “sufficiently specific to enable the reviewing court to adequately review the findings and decide questions of law. Begis, 398 A.2d 643.  Accord, Page’s Dept. Store v. Velardi, 346 A.2d 556, 561 (Pa. 1975).  “Failure to make the requisite findings is a violation of due process,” Begis;  2 Pa. C.S. §507.

                        b)  Findings must be specific, not general and conclusory.  Koggan v. UCBR, 472 A.2d 277 (Pa. Cmwlth 1984) 

                        c) Findings must be complete.  They must cover all issues “necessary to resolve the issues raised by the evidence which are relevant to the decision.”  Koggan, Page’s Dept. Store.

                        d) The appellate court may not infer from the absence of a finding that a question was resolved in favor of the prevailing party before the agency.  Koggan

                        e) Where findings are not adequate, the appellate court will usually remand the case, since it is not the court’s function to be a fact-finder.”  Koggan, Page’s Dept. Store.

                        f) credibility findings – Held sufficient in UC cases if the UCBR simply says it chose to believe one side or the other.  Peak v., UCBR, 501 A2d 1383, 1387 (Pa. 1985), 1387.  Compare, Higgins v. WCAB, 854 A2d 1002, 1007 (Pa. Cmwlth 2004), where court held that a credibility determination was not adequate because the fact-finder failed to "issue a reasoned decision" and to "articulate some objective basis for [its] credibility determinations." 

                        g)  federal law – At least in the area of Social Security, the requirement of giving findings and reasons, 5 U.S.C. sec. 557(c), is much more demanding and is enforced much more strictly.  See e.g., Cotter v. Harris, 642 F.2d 700, 704-707 (3d Cir. 1981).

tax sales - RETSL - notice of challenge to successful bidder not required

In re Lehigh Co. TCB Upset Sale – Appeal of Tchorzewski – Cmwlth. Court – September 20, 2021

https://www.pacourts.us/assets/opinions/Commonwealth/out/169CD20_9-20-21.pdf?cb=1

Real Estate Tax Sale Law, 72 P.S. §§5860.101-5860.803, does not require or entitle a successful bidder to notice of an owner’s objections to a tax sale. In In re: Tax Sale Held September 10, 2003 by Tax Claim Bureau of County of Lackawanna, 859 A.2d 15, 18 (Pa. Cmwlth. 2004) (Sposito), the Court specifically rejected the claim of a successful bidder that the tax claim bureau has the duty to give the successful bidder notice of an owner’s objections, or the responsibility to “file a petition to add [the successful bidder] as an additional party[.]” Id. To the contrary, the Tax Sale Law “does not make successful bidders, whose purchases have not been confirmed, parties to objection proceedings as a matter of course.” Sposito, 859 A.2d at 18. 

Likewise, it is not the responsibility of the owner who files objections under Section 607 of the Tax Sale Law to name the successful bidder as a party or serve him with a copy of the owner’s objection petition. In re 2005 Sale of Real Estate by Clinton County Tax Claim Bureau Delinquent Taxes, 915 A.2d 719, 722- 23 (Pa. Cmwlth. 2007). Rather, “successful bidders must petition to intervene in order to be considered parties in an objection proceeding challenging a confirmation nisi.” Id. at 723. Accordingly, the Court has established, quite specifically, that successful bidders “are not indispensable parties for purposes of Owner’s objections to the confirmation nisi.” Id. 

In summary, there is no language in the Real Estate Tax Sale Law to support Purchasers’ claim that they were indispensable parties to the proceeding that set aside the tax sale of Owner’s Property, for which they were the successful bidders. There is, however, binding precedent that has established that Purchasers, in their capacity as successful bidders, were not indispensable parties to that proceeding. Clinton County, 915 A.2d at 723. 

 

employment - at-will employment - interference with contractual relations

Salsberg v. Mann and Drexel University – Pa. Super. – en banc (5-3 decision) – September 14, 2021

 

Majority –  https://www.pacourts.us/assets/opinions/Superior/out/J-E01001-21o%20-%20104894484146523073.pdf?cb=1

The decision in Hennessey v. Santiago, 708 A.2d 1269, 1279 (Pa. Super. 1998) has been recognized as the controlling precedent on the availability of a § 766 claim for an at-will employee. See Haun v. Cmty. Health Sys., 13 A.3d 120, 125 n.1 (Pa. Super. 2011). In Hennessy, a former at-will employee filed suit against her employer for wrongful discharge. The former employee’s complaint also included a claim against a third-party for interfering with her at-will employment relationship. The Hennessy Court held that “an action for intentional interference with performance of a contract in the employment context applies only to interference with a prospective employment relationship whether at-will or not, not a presently existing at- will employment relationship.” Id., at 1279. 

 

Dissent - https://www.pacourts.us/assets/opinions/Superior/out/J-E01001-21do%20-%20104894484146523572.pdf?cb=1 Appellant has alleged unjustified interference of a third person with her existing at-will employment contract. . . and the weight of authority remains in favor of allowing a cause of action in these circumstances. E.g., Hall v. Integon Life Ins. Co., 454 So.2d 1338, 1344 (Ala. 1984); Wagenseller v. Scottsdale Mem’l Hosp., 710 P.2d 1025, 1041-44 (Ariz. 1985) (superseded in part by statute on other grounds as stated in Galati v. America West Airlines, Inc., 69 P.3d 1011, 1013 (Ariz. Ct. App. 2003)); Ixchel Pharma, LLC v. Biogen, Inc., 470 P.3d 571, 580 (Cal. 2020); Unistar Corp. v. Child, 415 So.2d 733, 734 (Fla. Dist. Ct. App. 1982);2 Guinn v. Applied Composites Eng’g, Inc., 994 N.E.2d 1256, 1267 (Ind. 2013); RTL Dist., Inc. v. Double S Batteries, Inc., 545 N.W.2d 587, 590 (Iowa Ct. App. 1996) Health Call of Detroit v. Atrium Home & Health Care Servs., Inc., 706 N.W.2d 843, 849-50 (Mich. Ct. App. 2005) (quoting Feaheny, v. Caldwell, 437 N.W.2d 358, 363-64 (Mich. Ct. App. 1989)); Nordling v. Northern States Power Co., 478 N.W.2d 498, 505 (Minn. 1991); Levens v. Campbell, 733 So.2d 753, 760 (Miss. 1999); Topper v. Midwest Div., Inc., 306 S.W.3d 117, 125-26 (Mo. Ct. App. 2010); Bloch v. The Paul Revere Life Ins. Co., 547 S.E.2d 51, 59 (N.C. Ct. App. 2001), review denied, 553 S.E.2d 35 (N.C. 2001); Jenkins v. Region Nine Housing Corp., 703 A.2d 664, 667 (N.J. Super. Ct. App. Div. 1997), certification denied, 709 A.2d 798 (N.J. 1998); McNickle v. Phillips Petroleum Co., 23 P.3d 949, 951 (Okla. Civ. App. 1999); Lewis v. Oregon Beauty Supply Co., 733 P.2d 430, 433 (Or. 1987); Forrester v. Stockstill, 869 S.W.2d 328, 330 (Tenn. 1994); Trepanier v. Getting Organized, Inc., 583 A.2d 583, 589 (Vt. 1990); Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 279 N.W.2d 493, 496 (Wis. Ct. App. 1979). 

 

 

UC - late appeal - nunc pro tunc - USPS tracking number

Barsky v. UCBR – Cmwlth. Court – August 31, 2021 – reported, precedential

 

Held: UCBR erred in denying nunc pro tunc late appeal, where 

• there was no postmark or postage meter mark on envelope
• appeal received one day after last appeal date

So appeal did not satisfy any of the conditions of 34 Pa. Code 101.82(b) regarding filing appeal by mail, even though logical mailing date showed that appeal was mailed before final appeal date. Verch v. UCBR, 676 Al2d 1290, 1291-5 (Pa. Cmwlth. 1996).

 

But, UCBR capriciously disregarded tracking number evidence that, while insufficient to establish timeliness of appeal under sec. 101.82of UCBR regulations, was “certainly relevant to nunc pro unc relief, under the extraordinary circumstances of the case.” Case remanded for consideration of whether nunc pro tunc relief was warranted.

An appeal nunc pro tunc is only warranted in extraordinary circumstances “involving fraud or some breakdown in the court’s operation,” or where the delay is quotations omitted) (quoting Bass v. Cmwlth., 401 A.2d 1133, 1135 (Pa. 1979)). [W]here an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or his counsel, and the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and [the] appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc.  Id. In reviewing a request for nunc pro tunc relief on non-negligent grounds, “[t]he question of whether there are unique and compelling facts, which establish a non-negligent failure to timely appeal, is a legal conclusion to be drawn from the evidence and is reviewable on appeal.” Harris v. Unemployment Comp. Bd. of Rev., 247 A.3d 1223, 1231 (Pa. Cmwlth. 2021) (quotingV.S. v. DPW, 131 A.3d 523, 527 (Pa. Cmwlth. 2015)). It is well settled that the burden of demonstrating the necessity of nunc pro tunc relief is on the party seeking to file the appeal, and the burden is a heavy one. Blast Intermediate Unit No. 17 v. UCBR., 645 A.2d 447, 449 (Pa. Cmwlth. 1994).

The extraordinary/exceptional circumstances of this case included (1) an appeal filed by mail during the COVID-19 pandemic, during which significant backlogs and errors in USPS’s mailing operations occurred; (2) claimant’s CPA mailing the appeal from home due to an at-risk health condition; and (3) Claimant seeking UC benefits in the first instance as a result of Governor Wolf’s mandated closure of non-essential business. Clearly, the factual setting surrounding Claimant’s application for unemployment benefits and the filing of Claimant’s appeal was anything but ordinary, and it warranted a detailed review of all the evidence of record. 

USPS Tracking number - a tracking number is a federally established and reliable means of demonstrating exactly when a piece of mail is sent and received through USPS. . . .The tracking number is clearly a part of the record, with the number being printed under the barcode on the certified mail sticker on the front of the envelope containing Claimant’s appeal. . . . Indeed, in entering the tracking number into the USPS website, this Court was able to discern quickly and easily that the appeal was mailed on June 1, 2020, or earlier.  This information, coupled with witness testimony, may have been sufficient to permit Claimant’s appeal nunc pro tunc, but the Board did not engage in such an analysis.

Tax sale - RETSL - service of notice of sale - owner-occupied property - apparent or reputed owner

Gutierrrez v. Washington County Tax Claim Bureau – Cmwlth. Court – June 10, 2021 

Published, precedential opinion (after motion to publish granted)

 

Held: Tax sale of owner-occupied manuf. home (MH) voided due to failure of tax claim bureau (TCB) to make personal service of the notice of the tax sale, as required by RETSL (Real Estate Tax Sale Law), 72 P.S. sec. 5860.601 (a)(3).

 

Kudos to Dan Vitek of Community Justice Project for litigating this case and getting the opinion published.

 

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Facts: Seller of manuf. home failed to give notice of sale and change of ownership to proper authorities, nor did the Buyer, whom the trial court recognized was “[i]nexperienced and unwitting of real estate tax matters concerning mobile homes and possessing only a bare understanding of the English language.” 

When Buyer failed to pay taxes, TCB started tax sale proceedings, but sent all notices to the seller/prior owner.  Two notice were returned to the TCB. The TCB posted notices of the sale on the manuf. home. Buyer saw the notices but “was unable to read them and did not seek help in translating them.”

The trial court held that tax sale was valid and that personal service of the notice of sale could be waived, since Buyer was “neither an owner of record nor an apparent owner” under 72 P.S. sec. 5860.201 (“owner”), despite undisputed evidence that Buyer entered into a lease with the MH park owner, who had a copy of the lease. The only attempt at personal service was by knocking on the MH door at a time when Buyer was not at home.

From the opinion

The notice provisions of the Tax Sale law must be strictly construed – A presumption of regularity attaches to tax sale cases. However, once exceptions are filed, the burden shifts to the tax claim bureau to show that proper notice was given. In re Upset Sale Tax Claim Bureau McKean Cnty. on Sept. 10, 2007, 965 A.2d 1244, 1248 (Pa. Cmwlth. 2009). The Tax Sale Law’s notice provisions must be strictly construed and a tax claim bureau’s failure to comply with all the notice requirements ordinarily will nullify a tax sale. Cruder v. Westmoreland Cnty. Tax Claim Bureau, 861 A.2d 411, 415 (Pa. Cmwlth. 2004). 

Special notice requirements for owner-occupied property - Where owner-occupied property is at issue, Section 601(a)(3) of the Tax Sale Law provides that the notice described in Section 602 must be personally served on an owner-occupant at least ten days prior to the date of the actual sale by the sheriff. 72 P.S. § 5860.601(a)(3).  Section 601(a)(3)’s personal service requirement “expresse[s] a desire to provide a qualitatively different type of notice to an owner[-]occupant and afford such owner [with] increased protection by way of additional notice.” McKelvey v. Westmoreland Cnty. Tax Claim Bureau, 983 A.2d 1271, 1274 (Pa. Cmwlth. 2009). The attribution of enhanced importance to personal service for owner-occupied property requires a tax claim bureau to establish good cause for a waiver of the requirement of personal service.

The Buyer was an “apparent or reputed owner” of the property – The Buyer was not an “owner” of the property, because both the Seller and Buyer failed to provide the proper documentation of the transaction. However, Buyer was an “apparent or reputed owner. . .open, peaceable and notorious possession of the property, as apparent owner. . .or the reputed owner. . .thereof in the neighborhood of such property” and thus was entitled to personal service of the notice of the sale, 72 P.S. sec. 5860.102 (“owner). . . The accepted evidence establishes that Buyer is an apparent or reputed owner under Section 102’s definition of “owner.” The parties stipulated that the title issued by the Department described the mobile home that Buyer was living in and named her as its owner.  Additionally, there is no dispute that Buyer and her family openly reside in the mobile home located at the address of the property sold at tax sale. Further, the trial court summarized the parties’ stipulation that Buyer lived there and had a lot lease at a mobile home court. 

Actual notice does not negate the statutory requirement of personal service - Actual notice does not waive strict compliance with Section 601(a)(3)’s personal service requirement. Consequently, “unless a taxing bureau obtains an order waiving the personal service requirement for good cause shown, its failure to comply with [S]ection 601(a)(3) of the [Tax Sale Law] will render a tax sale invalid.” Montgomery Cnty. Tax Claim Bureau v. Queenan, 108 A.3d 947, 952 (Pa. Cmwlth. 2015). . .

The TCB did not show good cause for waiving personal service of the notice of sale – Determination of good cause involves consideration of the facts of the case “in light of the fundamental purposes of the [Tax Sale] Law.”9 Appeal of Neff, 132 A.3d at 650.  “The primary purpose of tax sale laws is to ensure ‘the collection of taxes, and not to strip away citizens’ property rights.’” Id. at 650 [quoting Rice v. Compro Distrib., Inc., 901 A.2d 570, 575 (Pa. Cmwlth. 2006)].  In other words, the aim of these laws is not to punish taxpayers who did not pay taxes due to mere oversight or error. Appeal of Neff. Instead, the purpose is to protect local governments from persistent tax delinquents such that “failed attempts at personal service of notice may be, depending on the specific facts of the case, legally sufficient to obtain a waiver under Section 601(a)(3) of the Law.” Id. at 651. However, we must be mindful of the legislature’s heightened concern for owner- occupants being divested of the very property in which they are living. Id. at 646. In other words, someone’s home could be at stake. Id. at 651.  The TCB made only one attempt at personal service and should have been on notice that there was a new owner, the Buyer, since its two mailed notices to the Seller were returned with notations that they were “undeliverable.”

 

 

 

 

 

 

 

 

 

 

Evidence - immigration status - Pa. Rule of Evidence 413

Order https://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%20104862828142846890.pdf?cb=1

 

Rule    https://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20-%20104862828142846883.pdf?cb=1

 

Final Report https://www.pacourts.us/assets/opinions/Supreme/out/Report%20-%20104862828142847021.pdf?cb=1

 

Rule 413. Evidence of Immigration Status

1. (a)  Criminal or Delinquency Matters; Evidence Generally Inadmissible. In any criminal or delinquency matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the offense, to show motive, or to show bias or prejudice of a witness pursuant to Rule 607. This paragraph shall not be construed to exclude evidence that would result in the violation of a defendant’s or a juvenile’s constitutional rights. 
2. (b)  Civil Matters; Evidence Generally Inadmissible. In any civil matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the action, or to show bias or prejudice of a witness pursuant to Rule 607.
3. (c)  Procedure. Unless a party did not know, and with due diligence could not have known, that evidence of immigration status would be necessary, the following procedure shall apply prior to any such proposed use of immigration status evidence: 
   1. (1)  The proponent shall file under seal and serve a written pretrial motion containing an offer of proof of the relevancy of the proposed evidence supported by an affidavit. 
   2. (2)  If the court finds that the offer of proof is sufficient, the court shall order an in camera hearing. 
   3. (3)  The court may admit evidence of immigration status pursuant to paragraph (a) or paragraph (b) if it finds the evidence is reliable and relevant, and that its probative value outweighs the prejudicial nature of evidence of immigration status.
4. (d)  Voluntary Revelation. This rule shall not prohibit a person, or the person’s attorney, from voluntarily revealing his or her immigration status to the court.

Comment

Pa.R.E. 413 has no counterpart in the Federal Rules. This rule is modeled, in part, after Washington Rule of Evidence 413.

In practice, the introduction of immigration status has received heightened consideration in terms of relevancy and prejudice. See, e.g., Commonwealth v. Sanchez, 595 A.2d 617 (Pa. Super. 1991) (reference to defendant as an “illegal alien” was irrelevant and prejudicial). This consideration is warranted to avoid potential intimidation of witnesses for fear of deportation. See, e.g., 8 U.S.C. § 1227 (Deportable Aliens). This rule is intended to limit the admissibility of evidence of immigration status for purposes other than those stated in the rule. See, e.g., Commonwealth v. Philistin, 53 A.3d 1 (Pa. 2012) (discussing admissibility of immigration status for purpose of proving motive). Paragraphs (a) and (b) may serve as a basis for limiting discovery about immigration status.

This rule requires the proponent to seek pretrial approval prior to the introduction of evidence of immigration status. If evidence is admissible, the trial court may consider a cautionary jury instruction to ameliorate its prejudicial effect. See, e.g., Commonwealth v. Hairston, 84 A.3d 657 (Pa. 2014).

Nothing in this rule prohibits a court from unsealing a motion.

The procedure set forth in paragraph (c) is unnecessary for immigration status voluntarily revealed pursuant to paragraph (d). However, all other Rules of Evidence remain applicable. See, e.g., Pa.R.E. 402, 403.

Note: Adopted August 11, 2021, effective October 1, 2021. Committee Explanatory Report:

Final Report explaining the August 11, 2021 adoption of Rule 413 published with the Court’s Order at 51 Pa.B. __ (__ __, 2021).

 

SUPREME COURT OF PENNSYLVANIA COMMITTEE ON RULES OF EVIDENCE

FINAL REPORT1 

Adoption of Pa.R.E. 413

On August 11, 2021, upon recommendation of the Committee on Rules of Evidence, the Court ordered the adoption of Pennsylvania Rule of Evidence 413 governing the admissibility of evidence of immigration status. 

The Committee previously received a recommendation from the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness for changes to the Pennsylvania Rules of Evidence to limit the admissibility of a party’s or witness’s immigration status. In response, the Committee proposed amendment of the Comment to Pa.R.E. 401, see 49 Pa.B. 2218 (May 4, 2019), which received several comments concerning the need for a rule addressing specifically immigration status given that evidence of immigration status may be used for the purpose of intimidation.

Thereafter, the Committee proposed a standalone rule in the form of Pa.R.E. 413 to address the admissibility of evidence of immigration status. Similar to Washington Rule of Evidence 413, the standalone rule would have limited the admission of such evidence to prove an essential fact of, an element of, or a defense to, an action, or a party’s or witness’s motive. See 50 Pa.B. 5222 (September 26, 2020). Another function of the proposed rule would put the opponent on notice that a proponent intends to introduce evidence of immigration status. The opponent can then seek a pretrial ruling as to the admissibility of the evidence. This process would be similar to that employed by Pa.R.E. 404(b)(3) for notice in criminal cases for prior bad acts, but the notice would require the specific, rather than general, nature of any evidence of immigration status. Thereafter, the opponent could weigh whether to challenge the relevancy and potential prejudice of the evidence.

The Committee again received several responses to the proposal. A majority of respondents suggested a bifurcated rule similar to Washington Rule of Evidence 413, with differing provisions applicable to criminal proceedings and civil proceedings to permit admission only when immigration status is an essential fact of a party’s cause of action. Further, the waiver of advance notice should be restricted to when the moving 

1 The Committee’s Final Report should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee’s Comments or the contents of the Committee’s explanatory Final Reports. 

party did not know or, with due diligence, could not have known that immigration status would be an essential fact. Finally, the court should be required to conduct an in camera review, similar to Washington Rule of Evidence 413, and the review, together with the evidence or motion, should be sealed.

Based on these responses, the Committee revised proposed Pa.R.E. 413 to bifurcate the general exclusion of such evidence, together with exceptions, into paragraph (a) for criminal and juvenile matters and paragraph (b) for civil matters. Both paragraphs were revised to include exceptions “to show bias or prejudice of a witness pursuant to Rule 607.” Further, paragraph (a) included an additional exception so application of the rule in criminal or juvenile proceedings would not result in the violation of a defendant’s or a juvenile’s constitutional rights.

The Committee agreed with the respondents’ suggestion for a specific procedure for determining the admissibility of evidence of immigration status. Under Pa.R.E. 103, admissibility may be determined either by a pretrial motion in limine or contemporaneous objection in open court. However, experience informs that relying upon contemporaneous objections often cannot “unring the bell” of the issue being raised through the question posed. Moreover, offers of proof in open court, notwithstanding being outside the hearing of the jury, remain on the record and do little to assuage witness intimidation.

Therefore, largely structured after Washington Rule of Evidence 413(a)(1)-(4), paragraph (c) was added as a means for determining the admissibility of immigration status. The process would require a pretrial motion in limine filed under seal. Thereafter, the trial court could allow the evidence to be admitted if it was relevant and its probative value outweighed its prejudicial nature. The paragraph also contains an exception for when a party does not know, and with due diligence could not have known, that evidence of immigration status would be necessary at trial.

The Committee observed that two other jurisdictions, in their analogous evidentiary provisions, have included a provision allowing a party to waive the rule’s protection and reveal evidence of immigration status. See 735 Il.C.S. 5/8-2901(b)(3) (pertinently stating that evidence is admissible if “a person or his or her attorney voluntarily reveals his or her immigration status to the court”); Cal. Evid. Code § 351.3(b)(3), § 351.4(b)(3) (providing that, in civil actions other than for personal injury or wrongful death and in criminal actions, the statute does not “[p]rohibit a person or his or her attorney from voluntarily revealing his or her immigration status to the court”). 

Although evidence of immigration status has the potential for intimidation and prejudice, if such evidence is probative and the person whose immigration status is revealed does so voluntarily, then the proposed evidentiary and procedural safeguards appear unnecessary. Further, an exception for voluntary disclosure may lessen the

procedural burden on parties when immigration status is admissible pursuant to paragraph (a) or (b).

Therefore, the Committee revised the rule to add paragraph (d), which is modeled after California Evidence Code § 351.3(b)(3). Paragraph (d) contains several noteworthy aspects. First, it pertains to a personal revelation of one’s own immigration status, not another person’s immigration status. Second, the status must be revealed in court, not to sources outside of court. Cf. Pa.R.E. 803(25) (An Opposing Party’s Statement). Third, the procedure set forth in paragraph (c) is rendered unnecessary under the circumstances of paragraph (d), i.e., “this rule shall not prohibit.” A statement to that effect was added to the Comment with an observation that the other Rules of Evidence nonetheless remain applicable even if the procedure of paragraph (c) is not followed.

The Committee received a concern that a Rule of Evidence permitting the use of evidence of immigration status for impeachment purposes may open the door to additional discovery on that topic. Similarly, the respondent expressed concern that permitting evidence of immigration status to be admissible in court as an element of a defense in civil matters pursuant to paragraph (b) may have similar effect. The Committee is not insensitive to such concerns, but the Rules of Evidence are intended to regulate the admissibility of evidence in court proceedings, see Pa.R.E. 101, not the scope of discovery. Notwithstanding, a sentence was added to the Comment indicating that paragraphs (a) and (b) may serve as a basis for limiting discovery about immigration status; however, the procedural mechanism for doing so, i.e., a protective order, is not governed by the Rules of Evidence. 

This rule becomes effective October 1, 2021.

 

 

 

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employment - wages/hours - time spent on security screening is compensable under state wage/hour law

In re Amazon.com, Inc.  – Pa. Supreme Court – reported decision on certified question from 6^th Circuit - July 21, 2021

 

Majority https://www.pacourts.us/assets/opinions/Supreme/out/J-76-2020mo%20-%20104839808140967303.pdf?cb=2

dissent https://www.pacourts.us/assets/opinions/Supreme/out/J-76-2020do%20-%20104839808140911397.pdf?cb=1

dissent https://www.pacourts.us/assets/opinions/Supreme/out/J-76-2020do1%20-%20104839808140963694.pdf?cb=1

 

Contrast the U.S. Supreme Court decision in Integrity Staffing Solutions v. Busk, 574 U.S. 27 (2014). In Busk, the high Court ruled that time spent by Amazon warehouse workers in Nevada going through the same security screenings the employees in the present case were subjected to was not compensable under the federal FLSA. 

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We answer herein two certified questions from the United States Court of Appeals for the Sixth Circuit: (1) whether time spent on an employer’s premises waiting to undergo, and undergoing, mandatory security screening is compensable as “hours worked” within the meaning of the Pennsylvania Minimum Wage Act1 (“PMWA”)?; and (2) whether the doctrine of de minimis non curat lex,2 as described in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), applies to bar claims brought under the PMWA? Our reply to these questions is that time spent on an employer’s premises waiting to undergo, and undergoing, mandatory security screening constitutes “hours worked” under the PMWA; and there exists no de minimis exception to the PMWA. 

1 43 P.S. §§ 333.101-333.115.
2 Literally translated, this Latin phrase means: “The law does not concern itself with trifles.”. It is frequently referred to in legal vernacular simply as “de minimis.” Id. Pursuant to this principle, “courts disregard trivial  matters that serve merely to exhaust the court's time.” Bailey v. Zoning Board of Adjustment of the City of Philadelphia, 810 A.2d 492, 504 n.20 (Pa. 2002).

 

employment - EMT - licensure - misstatement of fact on application - Dept. discretion as to penalty

Hynes v. Dept. of Health -  Cmwlth. Court – September 17, 2020 – unreported memorandum decision**

 

Held: Ever though applicant for EMT certificate admittedly failed to disclose a 20+ year-old convictions on his application, it was error for the Department of Health to deny his application and revoke his certification, because:

 

• “there is no material relevance between the convictions and his present ability to perform EMT duties
• Age of convictions – “Importantly, the conduct in question occurred 25 years ago”
• In spite of applicant’s conduct, the Dept. had discretion about the mature of the disciplinary action against applicant
• The Department “committed a manifestly unreasonable exercise of judgment” in revoking EMT certification, given applicant’s mitigating evidence

 

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**An unreported, non-precedential Commonwealth Court case can be cited for its persuasive value but is not binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716