public utilities - sale to private company rejected - no benefit to public shown

This case was litigated by the office of the state consumer advocate, Patrick Cicero.  Well, done, Patrick! Here’s the story, as reported by WHYY.  https://whyy.org/articles/pa-court-puc-east-whiteland-sewer-sale-aqua/

 

Here’s the link to the decision 

 

P. Cicero v. PUC –  Pa. Cmwlth. – July 31, 2023 – reported, precedential decision

https://www.pacourts.us/assets/opinions/Commonwealth/out/910CD22_7-31-23.pdf?cb=1

 

Here’s what Patrick had to say about the decision:

 

• The Court correctly recognized that the Section 1329 of the Public Utility Code deals solely with the ratemaking rate base valuation of a system if and only if the application is approved and that it is not a short cut to approval.  Specifically, it correctly recognized that nothing in Section 1329 altered the requirements of Section 1102 and 1103 of the Public Utility Code that require a specific, fact-based showing that the acquisition provides an affirmative public benefit.  The Court unequivocally set out that in every 1329 case, the determination of an affirmative public benefit must be rooted in facts that are specific to the transaction and outweigh the harms of the transaction.  This requires the PUC to conduct a fact-based evaluation and balancing such that any approval must demonstrate that the public is better off – on net – because of the transaction than it would be in the absence of the transaction.  

 

• The Court correctly rejected the Commission and Aqua’s argument that Aqua’s technical and legal fitness was, in the abstract, an affirmative public benefit.

 

• The Court also appropriately clarified that while aspirational benefits can be considered, they must be rooted in the facts that are specific to the transaction in question and not general in nature or result from the technical or legal fitness of the buyer.

 

 

Here is a proposed quote from me:

 

“The Commonwealth Court provided unequivocal clarity that the Public Utility Commission must do more than rubber stamp water and wastewater acquisitions brought pursuant to Section 1329 of the Public Utility Code.  It correctly found that the PUC must conduct a fact-based evaluation pursuant to Section 1102 and 1103 which sections require the PUC to only approve acquisitions where the public is affirmatively better off – on net – because of the transaction than it would be in the absence of the transaction.  The OCA takes seriously the requirement that each case must be dealt with on its facts.  The Court correctly recognized the limits of Section 1329 as simply a means of determining the value of an acquired system that forms the basis of rates if the application is approved, but that at the same time the rate impact of the proposed acquisition at the higher costs allowed by Section 1329 is an important factor in determining whether there are affirmative public benefits. This means that each transaction must stand alone and provide affirmative benefit to the public before the PUC can approve the sale.”      

 

 

 

 

employment - natural hair braiding - licensure requirement unconstitutional

Thiam d/b/a Rama Hair Braiding Salon v. Bureau of Professional and Occupational Affairs

Pa.  Cmwlth Court – 7-25-23

Unreported memorandum opinion** 

 

Held:   “[W]e hold that  Petitioner has presented sufficient evidence to establish that the Law’s limited license requirements set forth in Section 5(b)(3)(i) are unconstitutional as applied to her as they are violative of Petitioner’s constitutional right to pursue her chosen occupation under article I, section 1 of the Pennsylvania Constitution. 

While it may be reasonable for the Legislature to regulate the natural hair braiding industry, the requirement for 300 hours of training and an examination in English to ensure Petitioner, who has practiced the art of natural braiding for most of her life, is properly trained in basic areas like sanitation, anatomy, and scalp care and possesses the cognitive and manipulative skills necessary to braid hair is unduly burdensome. 

Petitioner and Dr. Edi testified regarding the difficulty Petitioner and others in the Philadelphia area face in finding a school to meet the Law’s requirements, which  will make it nearly impossible for Petitioner to hire licensed natural hair braiders to operate the Salon. They also spoke of the costliness of such training and the unavailability of accommodations to address Petitioner’s language barrier. Moreover, the Law is not reasonably related to protecting the safety and health of patrons of the Salon, where Petitioner uses no chemicals, dyes, or heat, and she has been practicing her craft for most of her life without complaint. Nixon, 839 A.2d at 287; Gambone, 101 A.2d at 637. For these reasons, we reverse the Board’s March 8, 2022 Order.

++++++++++++

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 Editor’s note:  Someone should move for this opinion  to be reported.  I have sample petitions.

 

 

 

LT - self-help eviction - injunction - immediate and irreparable harm

A commercial tenant that was evicted by self-help measures is entitled to a preliminary injunction restoring possession because (1) the Landlord-Tenant Act provides the “complete and exclusive system in itself” to obtain the eviction of tenants and (2) the loss of a leasehold interest in real estate constitutes irreparable harm.  Fraport Pittsburgh v. Allegheny County Airport Authority, No. 974 WDA 2022 (Pa. Super. May 9, 2023)

From the opinion---

The trial court found that evidence demonstrating all the elements of a preliminary injunction was shown except for the first element requiring “immediate and irreparable harm [defined as] injury for which damages can only be estimated by conjecture and not by an accurate pecuniary standard or cannot be adequately compensated by an award of monetary damages.” City of Allentown v. Lehigh Cnty. Auth., 222 A.3d 1152, 1160 (Pa. Super. 2019) . . . . “In order to meet this burden, a plaintiff must present concrete evidence demonstrating actual proof of irreparable harm.” Id. (citation omitted). 

Where there is a real property interest, the loss of that interest constitutes irreparable harm because each parcel of  real estate is unique. See Peters v. Davis, 231 A.2d 748 (Pa. 1967), stating: 

The aggrieved property owner’s right is absolute. However hard his acts might be regarded; he asks the court for the enforcement of a legal right of a positive character with respect to land which it is conceded was wrongfully taken from him. He is  entitled to a decree. The rule in such a case is founded on sound reason. If damages may be substituted for the land, it will amount  to an open invitation to those so inclined to follow a similar course and thus secure valuable property rights. The amount of land involved does not change the situation. Here is a wrongful invasion of a positive right to real property. If a property owner deliberately and intentionally violates a valid express restriction running with the land or intentionally ‘takes a chance’, the appropriate remedy is a mandatory injunction to eradicate the violation. 

Id. at 752 (citation omitted).

Our Supreme Court has also held that, “In light of the unique and intrinsic value of land, interference with the plaintiff’s contractual rights to ownership of that land must be deemed irreparable harm.” New Eastwick Corp. v. Philadelphia Builders Eastwick Corp., 241 A.2d 766, 770 (Pa. 1968). Additionally, regarding possession of a leasehold interest, “[t]here is substantial common-law authority that the leasing of property is identical to  the sale of the premises.” Com., by Creamer v. Monumental Properties, Inc., 329 A.2d 812, 822 (Pa. 1974) (citation omitted). 

 

LT - self-help eviction is not allowed

A commercial tenant that was evicted by self-help measures is entitled to a preliminary injunction restoring possession because (1) the Landlord-Tenant Act provides the “complete and exclusive system in itself” to obtain the eviction of tenants and (2) the loss of a leasehold interest in real estate constitutes irreparable harm.  Fraport Pittsburgh v. Allegheny County Airport Authority, No. 974 WDA 2022 (Pa. Super. May 9, 2023).

 

Thank you Brandon Copeland for bringing this case to my attention.

 

“Not only should a preliminary injunction be issued because money

damages cannot compensate Fraport for loss of its leasehold interest, but it

was also an error for the trial court not to issue a preliminary injunction due

to ACAA’s self-help by the improper use of the Allegheny County Police to

advance its commercial interests to evict Fraport.

 

Because a landlord/tenant relationship existed, ACAA was required to

utilize the procedures set forth in the Landlord Tenant Act of 19519

to lawfully evict10 Fraport. The Landlord Tenant Act is a comprehensive regulatory

scheme governing the landlord and tenant relationship. See Stonehedge

Square Ltd. P'ship v. Movie Merchants, Inc., 715 A.2d 1082, 1085 (Pa.

1998). It “sets up the procedure whereby a landlord may repossess [the]

premises if he has a right to evict the tenant.” Warren v. City of

Philadelphia, 115 A.2d 218, 221 (Pa. 1955). The Landlord Tenant Act states

that all other inconsistent acts are repealed and that “[i]t is intended that

this act shall furnish a complete and exclusive system in itself.” 68

P.S. § 250.602 (emphasis added).

 

***

 

Regarding self-help, while the Landlord Tenant Act provides that it is the

“complete and exclusive system in itself” to obtain the eviction of

tenants, surprisingly, no Pennsylvania appellate decision has addressed the

issue of the appropriateness of a landlord’s use of self-help, but the courts of

common pleas which have addressed this issue have consistently held self-

help is not available to evict a tenant. See e.g., O'Brien v. Jacob Engle

Foundation, Inc., 47 Pa. D. & C.3d 557, 558–59 (Cumberland Cty. 1987)

(noting that self-help should not be used where judicial procedures, like the

Landlord Tenant Act, are available); Lenair v. Campbell, 31 Pa. D. & C.3d

237, 241 (Philadelphia Cty. 1984) (“Upon reviewing the [Landlord Tenant Act]

in its entirety, it becomes apparent that self-help eviction is not a remedy

under any circumstances. . . . [T]he legislature clearly expressed its intention

that the Act be the sole source of rights, remedies and procedures governing

the landlord/tenant relationship.”); Wofford v. Vavreck, 22 Pa. D. & C. 3d

444, 453 (Crawford Cty. 1981) (“A landlord desirous of seeking repossession

of his leased premises from his tenant for nonpayment of rent must do so

either by bringing an action under the Landlord and Tenant Act [], and the

related Pennsylvania Rules of Civil Procedure for Justices of the Peace, or by

bringing an action in ejectment.”); Williams v. Guzzardi, 875 F.2d 46, 52 n.

13 (3d Cir. 1989) (analyzing pertinent Pennsylvania law). Moreover, under

the Master Lease, the ACCA limited itself to seeking only remedies at law and

equity and not to engage in self-help, even if it was permissible. See Master

Lease at 46, § 12.04).

 

UC - voluntary quit - firm offer of other employment

Cortez v. UCBR – Cmwlth. Court – May 30, 2023 – unreported memorandum opinion**

 

https://www.pacourts.us/assets/opinions/Commonwealth/out/776CD22_5-30-23.pdf?cb=1

 

“A claimant who voluntarily terminates his employment has the burden of proving that a necessitous and compelling cause existed.” Solar Innovations, Inc. v. UCBR., 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012). Our Court has held that the receipt and acceptance of a firm offer of employment constitutes cause of a necessitous and compelling nature. Id. A firm offer of employment is one that contains the specific conditions of employment, such as wages, hours, duties, and a starting date. Baron v. UCBR., 384 A.2d 271, 272 (Pa. Cmwlth. 1978). “The offer of employment, however, must be definite, and the claimant must act prudently with regard to his employer.” N. Huntingdon, 450 A.2d at 769. While “the receipt and acceptance of a firm offer of employment does constitute termination for cause of a necessitous and compelling nature . . . [t]he mere possibility of obtaining another job is insufficient to establish that employment was terminated for good cause.” Solar Innovations, 38 A.3d at 1056-57 (emphasis added). 

In determining whether the claimant had a firm offer of work justifying his voluntary quit, our case law instructs that the operative date is the date the claimant resigns, not the claimant’s last day of work. See N. Huntingdon, 450 A.2d at 770 (looking to the terms of the claimant’s offer of employment “at the time [the c]laimant tendered his resignation” to determine if the offer was, in fact, definite) (emphasis added); UCBR. v. Pa. Power & Light Co., 351 A.2d 698, 700 (Pa. Cmwlth. 1976) (concluding that, based on the circumstances surrounding his offer of employment at the time the claimant submitted his notice of resignation, the test for necessitous and compelling cause was met); see also Lane v. UCBR. (Pa. Cmwlth., No. 576 C.D. 2014, filed Oct. 21, 2014), slip op. at 2-4 (affirming the denial of UC benefits where “[t]he Board found that [the] ‘claimant ha[d] not credibly established that he had a firm offer of other employment at the time he quit’” and where “‘[t]he claimant admit[ted] that he tendered his resignation notice without having a start date for the other employment’”) (quoting the Board’s decision) (emphasis added).

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

UC - late appeal - when nunc pro tunc allowed

Amin v. UCBR  - May 2023 - unreported

https://www.pacourts.us/assets/opinions/Commonwealth/out/773CD22_5-9-23.pdf?cb=1

Section 501(e) of the UC Law provides that a party has 21 (formerly 15) days to appeal a referee’s decision to the Board. 43 P.S. § 821(e). The

Department’s associated regulation calculates the deadline for the appeal of a UC determination from the date the decision was delivered personally or placed into the mail. 34 Pa. Code § 101.82. If an appeal is not timely filed, the determination becomes final, and the Board does not have the requisite jurisdiction to consider the matter. Hessou v. Unemployment Comp. Bd. of Rev., 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008) (citing Darroch v. Unemployment Comp. Bd. of Rev., 627 A.2d 1235 (Pa. Cmwlth. 1993)). An appeal filed even one day after the appeal period is untimely. Hessou, 942 A.2d at 198 (citing Dumberth v. Unemployment Comp. Bd. of Rev., 837 A.2d 678 (Pa. Cmwlth. 2003) (en banc)). The Board may consider an untimely appeal only in limited circumstances. Hessou, 942 A.2d at 198 (citing Unemployment Comp. Bd. of Rev. v. Hart, 348 A.2d 497 (Pa. Cmwlth. 1975)). A claimant seeking to establish the right to an untimely appeal bears a heavy burden, because the statutory time limit for appeals is mandatory. Hessou, 942 A.2d at 198 (citing Blast Intermediate Unit No.

17 v. Unemployment Comp. Bd. of Rev., 645 A.2d 447 (Pa. Cmwlth. 1994)). To satisfy his burden, a claimant must show fraudulent behavior or manifestly wrongful or negligent conduct by the administrative authority or non-negligent conduct beyond the claimant’s control that caused the delay. Hessou, 942 A.2d at 198 (citingBass v. Commonwealth, 401 A.2d 1133 (Pa. 1979)). “[F]ailure to file an appeal within fifteen days, without an adequate excuse for the late filing, mandates dismissal of the appeal.” Hessou, 942 A.2d at 198 (quoting U.S. Postal Serv. v. Unemployment Comp. Bd. of Rev., 620 A.2d 572, 573 (Pa. Cmwlth. 1993)) (additional quotation marks omitted).

whistleblower law - prima facie case - concrete evidence v. subjective evidence

Javitz v. Luzerne County, Pa. Supreme Court – May 5, 2023 – reported, precedential

 

https://www.pacourts.us/assets/opinions/Supreme/out/J-49-2022mo%20-%20105527876223594181.pdf?cb=1

 

 

whistleblower law (a) Persons not to be discharged.--No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste by a public body or an instance of waste by any other employer as defined in this act. 43 P.S. § 1423(a). 3 

The Commonwealth Court recognized that to establish a prima facie claim under the Whistleblower Law, a plaintiff must establish “(1) a protected report of wrongdoing, (2) by a public body, and (3) a causal connection between the report and her termination.” Javitz v. Luzerne Cnty., 115 C.D. 2020, 2021 WL 3028160, at *6 (Pa. Commw. July 19, 2021) (unpublished disposition), appeal granted, 267 A.3d 482 (Pa. 2021). 

The Whistleblower Law is “chiefly a remedial measure” that aims to promote openness in governmental operations and governmental compliance with the law. O’Rourke, 778 A.2d at 1202. It achieves these goals by protecting employees from adverse employer action following a report of actual or suspected violation of federal, state or local law; protecting employees who participate in hearings, investigations, or court proceedings regarding employer misconduct; and providing remedies for employees and penalties against employers for actions that violate its terms. Bailets v. Pa. Tpk. Comm’n, 123 A.3d 300, 307 (Pa. 2015); see also 43 P.S. § 1421, 

Section 4 of the Whistleblower Law provides a cause of action, allowing that “[a] person who alleges a violation of this act may bring a civil action in a court of competent jurisdiction for appropriate injunctive relief or damages, or both, within 180 days after the occurrence of the alleged violation.” Id. § 1424(a). 

To establish a prima facie case of a violation of Section 3(a), an employee must establish “by a preponderance of the evidence that, prior to the alleged reprisal, the employee or a person acting on behalf of the employee had reported or was about to report in good faith, verbally or in writing, an instance of wrongdoing or waste to the employer or an appropriate authority.” Id. § 1424(b). In the case of alleged retaliatory termination, the employee must show a causal connection between the report of wrongdoing and the termination. Bailets, 123 A.3d at 306 

The causation requirement was first articulated in Gray v. Hafer, 651 A.2d 221 (Pa. Commw. 1994), aff’d per curiam, 669 A.2d 335 (Pa. 1995). . . . . the Commonwealth Court explained, at the pleading stage, such an employee must allege a connection between the report of waste or wrongdoing and the termination: 

To make out a cause of action under the Whistleblower Law by one who, as part of his or her regular job duties, files reports of waste or wrongdoing based on wrongdoing outside the governmental entity that he is charged with seeking out, that person must make more than a general statement that a report was filed and, within a given amount of time, the employee was fired as a result. An employee who has been terminated based on a filed report and wants to base his or her complaint on their employer’s violation under the Whistleblower Law must specify how their employer is guilty of waste and/or wrongdoing. They must also show by concrete facts or surrounding circumstances that the report led to their dismissal, such as that there was specific direction or information they received not to file the report or there would be adverse consequences because the report was filed. Id. (emphasis added).

Four years later, this Court adopted this causation standard. Golaschevsky, 720A.2d at 759. 

Quoting directly from Gray, this Court stated that to establish the causal connection for a claim of retaliatory termination under the Whistleblower Law, an employee “must show by concrete facts or surrounding circumstances that the report of wrongdoing ... led to the [] dismissal, such as that there was specific direction or information received not to file the report or that there would be adverse consequences because the report was filed.” Id. at 759 (internal quotations omitted) (emphasis added) (quoting Gray, 651 A.2d at 225).

Thus, in Golaschevsky, the Court held that a plaintiff’s prima facie case for causation may be established by use of either “concrete facts or surrounding circumstances” but not by the employee’s conclusory perception of how others treated him after making a report of alleged wrongdoing. Id. at 759-60. 

When considered in the context of the evidence adduced by the employee, it is clear that the requirement for “concrete facts or surrounding circumstances” to establish a causal connection means that the whistleblower plaintiff cannot rely on his or her perception of the facts to support a conclusion that the employer engaged in antagonistic conduct after the report. Instead, the plaintiff must prove the concrete facts or surrounding circumstances from which the factfinder can draw the inference that the employer’s conduct was antagonistic. 

Golaschevsky stands for the proposition that a plaintiff cannot rely on self-serving conclusions of an antagonistic post-report workplace and subsequent discharge to establish a prima facie case of causation. 

The Commonwealth Court’s wholesale classification of this evidence as Javitz’s “subjective perception” is wrong. The only item of evidence properly characterized as “subjective perception” evidence is her characterization of the “rude behavior of her supervisors.” 

Evidence of pre-report performance praise  and the post- report relocation of her office, restriction of her participation in union meetings and contract negotiations, and changes in the delegation of responsibilities is evidence of facts, not perception, upon which an inference of post-report antagonism and causation could be based. In its summary of Javitz’s evidence, the Commonwealth Court neglected to include the additional evidence of post-reporting antagonism that she, as the human resources director, was denied access to personnel files that were locked away and not given a key to access them, that she was told for the first time to do the filing for the office, that Lawson instructed the District Attorney not to pursue an investigation into the report, that Parsnik ignored all of her inquires as to what action was being taken as a result of her report, and that she was not provided a reason for her termination, even after requesting it. This is “concrete evidence” offered in support of establishing a causal connection. Javitz argues in her brief that she produced evidence of facts supporting an inference of a pattern of post-reporting antagonism culminating in her discharge,20 and we agree that the Commonwealth Court erred in concluding that it was instead merely her perception that the conduct was antagonistic. 

For this reason, we conclude that the Commonwealth Court erred and misapplied the law. Accordingly, we vacate its order and remand for further proceedings consistent with this opinion 

 -

 

 

 

 

 

 

 

 

 

custody - relocation

https://www.pacourts.us/assets/opinions/Superior/out/J-A06009-23m%20-%20105495941219026881.pdf?cb=1

 

** 

Superior Court

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

attorneys - ethical rules - attorney-lobbyist - Rule 1.19(c)

Order  - https://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%20105495491218988041.pdf?cb=1

 

 

Rule 1.19(c) - https://www.pacourts.us/assets/opinions/Supreme/out/attachment%20-%20105495491218988051.pdf?cb=1

 

A lawyer whose service as a public officer or public employee of a governmental body concludes on or after June 1, 2023, shall not act as a lobbyist, as defined in any statute, resolution passed or adopted by either house of the Legislature, regulation promulgated by the Executive Branch or any agency of the Commonwealth of Pennsylvania or ordinance enacted by a local government unit, on any matter before the governmental body with which the lawyer had been associated for one year after termination of the lawyer’s service as a public officer or public employee. 

 

custody - jurisdiction

Welliver v. Ortiz – Pa. Super. – March 8, 2023

https://www.pacourts.us/assets/opinions/Superior/out/J-A03019-23o%20-%20105457667214892481.pdf?cb=1

 

Held: Pennsylvania trial court did not have jurisdiction over custody case, where neither parent had lived here for a considerable time, and there was no substantial evidence concerning the child in this state.

Accordingly, the trial court did not have exclusive and continuing jurisdiction over the most recent custody petition.

The court also lacked jurisdiction under 23 Pa.C.S.A. § 5422(b), which permits a court to modify a custody determination only if it has jurisdiction to  make an initial custody determination under 23 Pa.C.S.A. § 5421(a). 

The facts on the record fail to establish any of the four jurisdictional bases stated in section 5421, concerning jurisdiction to make an initial custody determination: subsection (

1) is inapposite because the Commonwealth was not Child’s home state at the time of the proceeding or six months before; subsection 

(2) is inapposite because a court of another state had jurisdiction at the time of the filing of the 2020 petition; subsection 

(3) is inapposite because New Jersey (and/or California) have not declined to exercise jurisdiction on the grounds that the Commonwealth is the most appropriate forum to determine custody under sections 5427 or 5428; and 

(4) at least one other state would have jurisdiction under paragraphs (1), (2) or (3). 

The trial court therefore lacked jurisdiction to modify custody under section 5421. Because the trial court lacked subject matter jurisdiction, its August 19, 2022 custody order is null and void. 

 

employment - criminal conviction - collateral consequences - harm to reputation

Commonwealth v. Coniker – Pa. Super. – 2-15-23 – precedential

https://www.pacourts.us/assets/opinions/Superior/out/J-A29038-22o%20-%20105435515212837900.pdf?cb=1

 

 

Held: Because criminal conviction could have collateral consequences – such as damage to his reputation --  the fact that defendant had completed his sentence did not render the case moot. Defendant permitted to appeal.

 

From the opinion:

A case becomes moot when there is no longer an actual case or controversy to be resolved. In the Interest of Y.W.-B., 265 A.3d 602, 612  n.8 (Pa. 2021); e.g., Commonwealth v. Beaudoin, 182 A.3d 1009, 1010 (dismissing appeal as moot based on defendant’s death, a discretionary decision by this Court). 

However, the collateral consequences doctrine recognizes that a person with a criminal conviction may face legal consequences beyond serving the sentence imposed for the conviction. Commonwealth v. Markley, 501 A.2d 1137, 1141–42 (Pa. Super. 1985) (citing Sibron v. New York, 392 U.S. 40 (1968)). Notably, adverse consequences are presumed; “a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” Id. at 1141 (quoting Sibron, 392 U.S. at 57). . . . .

He. . .speculated that these convictions could damage his reputation; see Markley, 501 A.2d at 1140, 1141 n.4; see also Pa. Const. Art. 1, § 1 (recognizing an inherent right to reputation). . . .Given the possibility that Coniker’s convictions will damage his reputation, we conclude that he could suffer collateral consequences as a result. As such, we agree with Coniker that the collateral consequences doctrine applies and his cases are not moot. Markey, supra. Therefore, we will address substantive issues. 

 

 

-- 

UC - willful misconduct - absences - failure to report

Rothlein v. UCBR – Cmwlth. Court – 2-24-23 – unreported memorandum opinion**

https://www.pacourts.us/assets/opinions/Commonwealth/out/1102CD20_2-24-23.pdf?cb=1

 

Held: Claimant disqualified for willful misconduct for failure to report his absences due to illness.

 

From the opinion:

 

The employer bears the burden of proving that the claimant committed willful misconduct. Grand Sport Auto Body v. UCBR., 55 A.3d 186, 190 (Pa. Cmwlth. 2012) (en banc) (citing Docherty v. UCBR., 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006)). 

If the employer satisfies this initial hurdle, the burden shifts to the claimant to establish good cause for his or her actions. Id. (citing McKeesport Hosp. v. UCBR, 625 A.2d 112, 114 (Pa. Cmwlth. 1993)). Good cause exists where the claimant’s actions “are justifiable and reasonable under the circumstances.” Id. (quoting Docherty, 898 A.2d at 1208-09). 

Illness is a good cause defense to willful misconduct due to absenteeism. Owens v. UCBR, 748 A.2d 794, 798 (Pa. Cmwlth. 2000) (citing McKeesport Hosp., 625 A.2d at 114). 

A claimant’s illness will not establish good cause, however, where the claimant fails to properly report his or her absences. See Schlappich v. UCBR., 485 A.2d 855, 857 (Pa. Cmwlth. 1984) (citing Manatawny Manor v. UCBR, 401 A.2d 424 (Pa. Cmwlth. 1979)); Gelles v. UCBR, 452 A.2d 91, 92 (Pa. Cmwlth. 1982) (citing Gochenauer v. UCBR., 429 A.2d 1246, 1248 (Pa. Cmwlth. 1981)).

In this matter, . . .although Claimant may have missed work due to illness, Employer’s documentation reveals that he failed to demonstrate good cause, because he did not report many of his absences.10 See Schlappich, 485 A.2d at 857 (citing Manatawny Manor, 401 A.2d 424). 

+++++++

 

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

Judges - judicial education - MDJs

Order 

https://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%20105444134213626721.pdf?cb=1

 

Rules

https://www.pacourts.us/assets/opinions/Supreme/out/attachment%20-%20105444134213626710.pdf?cb=1

 

 

Proposed Rules for Minor Judiciary Education - Final

TITLE 204 - JUDICIAL SYSTEM GENERAL PROVISIONS PART II. GENERAL ADMINISTRATION CHAPTER XX. MINOR JUDICIARY EDUCATION

Rule 101. Purpose 

The public properly expects that judges at all levels of the judiciary will maintain professional competence and ethical behavior. To meet the public's expectations and to ensure that magisterial district judges and arraignment court magistrates have and maintain the requisite knowledge and skills to perform the duties of their office, these rules are promulgated in accordance with 42 Pa.C.S. § 3119 to prescribe standards for implementation of 42 Pa.C.S. §§ 3111 et seq. 

Rule 102. Scope and Citation 

(a) Scope. Magisterial district judges, arraignment court magistrates, and prospective candidates for each office must comply with certifying and continuing education requirements as set forth in 42 Pa.C.S. § 3111 - § 3119 and Pa.R.J.A. 601-603 as administered by the Minor Judiciary Education Board. 

(b) Citation. These rules shall be known as the Pennsylvania Minor Judiciary Education Rules ("rules") and may be cited as Pa.M.J.E. Rule_." 

Rule 103. Definitions 

Subject to any definitions contained in subsequent rules, the following words and phrases, when used in these rules, shall have, unless the context clearly indicates otherwise, the following meanings: 

"Arraignment Court Magistrate." A bail commissioner in the City of Philadelphia. "Board." The Minor Judiciary Education Board appointed by the Supreme Court of 

Pennsylvania as set forth in 42 Pa.C.S. § 2132. 

"Certification Course." A course of training and instruction in the respective duties of magisterial district judges and arraignment court magistrates, provided to interested persons who wish to seek or serve in these offices, and who are not members of the Bar of this Commonwealth. 42 Pa.C.S. § 3112 - § 3114; Pa.R.J.A. 601. 

"Certification Examination." A written examination designed to demonstrate that prospective magisterial district judges and arraignment court magistrates possess the requisite knowledge to competently discharge the duties of the office. 

"Continuing Education." An annual course of instruction designed to ensure that magisterial district judges and arraignment court magistrates maintain the requisite knowledge and skills to fulfill their judicial responsibilities. 

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"Department." The Judicial Education Department of the Administrative Office of Pennsylvania Courts. 

"Distance Education." Education that is delivered from a host site to a remote site via electronic transmission. 

"Judge." A commissioned jurist in the Commonwealth's Unified Judicial System who serves as a magisterial district judge or an arraignment court magistrate. The term also includes judges serving on the aforementioned courts in senior status pursuant to Pa.R.J.A. 701. 

"Judicial Education." Includes topics of study for certification and continuing education that encompass substantive and procedural law and judicial ethics, as well as topics to enhance judicial skills, including, but not limited to, case management, legal history, philosophy of law, and the physical and social sciences. 

"Judicial Education Course." Includes, but is not limited to, certification courses, continuing education courses, and supplemental practicum courses. 

"Supplemental Practicum." A continuing education course designed to address the unique educational needs of newly elected or appointed magisterial district judges and arraignment court magistrates. Pa.R.J.A. 602(b). 

"Supreme Court." The Supreme Court of Pennsylvania. Rule 201. Minor Judiciary Education Board 

The primary purpose of the Board is to develop and administer, subject to Supreme Court approval, certification courses and examinations, continuing education, and supplemental practicums, as provided in Chapter 31 of Title 42 and Pa.R.J.A. 601-603. 

Rule 202. Compensation and Expenses; Immunity 

(a) Board members shall receive no compensation for services provided under these rules, including services as instructors, but they shall be reimbursed by the Board for their reasonable and necessary expenses in attendance at meetings and in otherwise fulfilling their responsibilities. 

(b) The Board, and its members, employees and agents are immune from all civil liability for conduct and communications occurring in the performance of their official duties relating to the administration of the initial and continuing education requirements under 42 Pa.C.S. § 3111 - § 3119 and Pa.R.J.A. 601-603. 

Rule 203. Powers and Duties of the Board 

The Board is authorized: 

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(a) To administer these rules and the requirements of 42 Pa.C.S. § 3112 - § 3118 and Pa.R.J.A. 601-603, and to act as ordered, directed, or requested by the Supreme Court. 

(b) To develop all course curricula and manage all scheduling, faculty selection and other logistics for administration of certification, continuing education, and supplemental practicum courses. 

(c) To determine if judges and certification candidates are in compliance with these rules and to hear appeals from determinations of noncompliance. 

(d) To hear and decide requests from judges for waivers, extensions, or deferments from the requirements set forth in 42 Pa.C.S. § 3113 and § 3118 and theserules. 

(e) To undertake all reasonable action to implement the requirements of 42 Pa.C.S. § 3112 - § 3118, Pa.R.J.A. 601-603, and these rules. 

(f) To delegate to the Department or Board staff ministerial functions as necessary and appropriate to administer these rules. 

(g) To vote upon all matters requiring action by the Board. The manner of making and debating motions and determining the votes necessary for Board action shall be decided by the Chair, unless overridden by a Board majority. 

Rule 204. Quorum and Votes 

A minimum of five (5) Board members participating in a meeting shall constitute a quorum. · A quorum may be established with the participation of members by advanced communication technology. The Board may adopt rules providing for teleconference meetings. In accordance with 42 Pa.C.S. § 2133, the Board shall act only with the 

concurrence of at least four (4) members. 

Rule 205. Confidentiality 

(a) The files, records, and proceedings of the Board shall be deemed confidential and shall only be disclosed upon order by the Supreme Court or as required by law. 

(b) The Board shall submit an annual report to the Supreme Court, providing information on judicial compliance and other information deemed relevant by the Board or as directed by the Supreme Court. 

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(c) All documents or information deemed confidential under the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania shall not be disclosed, unless as permitted under that policy and these rules. 

Rule 301. Continuing Education Requirements 

(a) Magisterial district judges shall, on an annual basis as defined by the Board, complete thirty-two (32) hours of continuing education in accordance with the requirements of 42 Pa.C.S. § 3118(a)(1); Pa.R.J.A. 602(a). 

(b) Arraignment court magistrates shall, on an annual basis as defined by the Board, complete twenty (20) hours of continuing education in accordance with the requirements of 42 Pa.C.S. § 3118(b). 

(c) All newly elected or appointed magisterial district judges shall, within twelve (12) months of assuming office, complete a thirty-two (32) hour supplemental practicum in accordance with the requirements of Pa.R.J.A. 602(b). This requirement shall be in addition to the annual continuing education requirement. 

Rule 302. Judicial Education Standards 

Judicial education courses developed under these rules shall meet the following standards: 

(a) Judicial education must, to the greatest extent possible, address judges' distinct educational needs. 

(b) A course shall have significant intellectual or practical content, the primary objective of which is to improve the participants' professional competence and ethical behavior. 

(c) A course shall be an organized program of learning to deal with matters directly related to subjects which satisfy the objectives of 42 Pa.C.S. § 3113 and § 3118 and these rules. 

(d) A course must be presented in a suitable setting, conducive to a good educational environment, which provides attendees with adequate writing space or surface. 

(e) The Board may limit class sizes to create and maintain environments that are conducive to learning and that provide maximum engagement by the learner. 

(f) The Board may, at its discretion or as budgetary and administrative circumstances require, allow for distance education to satisfy some or all judicial education required by 42 Pa.C.S. § 3113 and § 3118 and these rules. Courses delivered by distance education must: 

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1. provide mechanisms to ensure interactivity and/or monitor course participation; 

2. be completed in such a manner that certification of attendance is controlled and proof thereof is determined by the Board; and 

3. include a mechanism to allow for course evaluations in a format determined by the Board. 

(g) Self-study will not be approved for certification, continuing education or supplemental practicum requirements. 

(h) Program leaders or presenters shall be qualified with the practical and/or academic experience necessary to conduct the program effectively. 

(i) Leaders or presenters may receive compensation at a rate determined by the Board, subject to the approval of the Court Administrator. 

(j) Though written materials may not be appropriate to all courses, they are expected to be utilized whenever possible. When written materials are deemed appropriate, each attendee shall be provided with a thorough, high quality and carefully prepared copy before or at the time of the course. 

(k) The Board shall make reasonable accommodations, in accordance with the Americans with Disabilities Act, for certification course, continuing education and supplemental practicum attendees as required. 

(I) The Board shall develop and implement methods to evaluate its course offerings to determine their effectiveness and the extent to which they meet judges' unique educational needs. 

Rule 303. Certification and Examination 

(a) All persons elected or appointed as judges shall be members of the bar of this Commonwealth or shall attend a certification course, which shall be at least forty (40) hours in length, and earn a passing score of seventy percent (70%) on the certification examination prior to assuming office, as set forth in 42 Pa.C.S. § 3112 - § 3114 and Pa.R.J.A. 601(a). 

(b) The content of the certification course shall include, but shall not be limited to, the requirements set forth in 42 Pa.C.S. § 3113(b) and any other provision of rule or law as determined by the Board in accordance with these rules. 

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(c) The certification course shall be scheduled with sufficient frequency to ensure that, once elected or appointed, a judge may qualify to assume office at the earliest opportunity in accordance with 42 Pa.C.S. § 3113(a). 

(d) The certification course shall be open to any interested person, in accordance with 42 Pa.C.S. § 3114. 

(e) Certification course attendees shall not be charged a fee to attend the certification course and shall be provided instructional materials at no cost. 42 Pa.C.S. § 3117. The Board shall determine what constitutes appropriate instructional material. 

(f) Certification course attendees are responsible for all costs and expenses related to their attendance beyond those enumerated in 42 Pa.C.S. § 3117. 

(g) The Board shall offer a certification examination within thirty (30) days of each certification course. 

(h) The Board shall offer any person who does not successfully pass the examination referenced in paragraph (a) an opportunity to sit for the examination again prior to the next certification course. Thereafter, if the person has not successfully passed the examination, he or she will have the opportunity to sit for the examination again following the conclusion of the next regularly scheduled certification course. The Board may limit the number of times unsuccessful candidates may retake the exam without first retaking the certification course. 

Rule 304. Supplemental Practicum 

(a) TheBoardshalldeterminethelengthandthecontentofthecontinuingeducation practicum course required by Pa.R.J.A. 602(b). 

(b) Practicum exercises must be part of the course of instruction. 

Rule 401. Waivers and Special Status 

(a) Waiver. A waiver is a grant by the Board that continuing education requirements may be excused. The Board may waive any amount of continuing education requirements for a period of not more than one (1) year upon a finding by the Board of: 

1. undue hardship, including extraordinary situations that could not reasonably have been anticipated; 

2. circumstances beyond the control of the judge that prevent the judge from complying in any reasonable manner with continuing education requirements; or 

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3. circumstances under which the Board determines a waiver request manifestly demonstrates good cause. 

(b) Senior judges.
1. Newly certified senior judges must complete the supplemental practicum 

required by Pa.R.J.A. 602(b). 

2. Senior judges must compete annual continuing education courses as required by these rules. 

(c) Members of the Armed Forces. Compliance with these rules shall be waived for members of the Armed Forces on active duty during the period of their active duty. A judge completing active duty shall notify the Board within thirty (30) days of returning to judicial service. Thereafter, the judge must comply with continuing education requirements for the forthcoming year. 

Rule 501. Noncompliance 

(a) The Board shall notify in writing any judge who does not comply with the continuing education requirements. There shall be no exceptions or exemptions from the continuing education requirements set forth in 42 Pa.C.S. § 3118 and Pa.R.J.A. 602, except those enumerated herein. 

(b) Noncompliance shall constitute grounds for the Supreme Court to declare a vacancy in that district in accordance with 42 Pa.C.S. § 3118(a)(2) and Pa.R.J.A. 602(a). 

(c) TheBoardshallreporttotheSupremeCourtandtotheJudicialConductBoard any judge who fails to complete their annual continuing education requirement. 

Rule 601.Hearings 

(a) Any judge or certification candidate aggrieved by a decision of the Board may petition for a hearing before the Board within ninety (90) days of the decision. 

(b) Requestsforhearings.AllrequestsforhearingsshallbeaddressedtotheMinor Judiciary Education Board, 601 Commonwealth Avenue, Suite 2500, P.O. Box 62475, Harrisburg, Pennsylvania 17106-2475. All matters shall be heard by the Board, unless in the discretion of the Board Chair, the matter should proceed as otherwise provided in this rule. 

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(c) In the discretion of the Board's Chair, a matter initially may be assigned to a Board member or panel of Board members for decision. If the hearing is conducted by more than one (1) person, the Chair of the Board shall designate one person who will act as the presiding hearing officer. Within thirty (30) days after the hearing, the member or panel shall submit a recommendation to the Board. 

(d) Afterreceiptofthememberorpanel'srecommendation,theBoardshallreview the matter based upon the existing record, or in its discretion, conduct such further proceedings as it deems appropriate, or review the matter de novo. 

(e) At all hearings, the petitioner shall have the burden of proof of establishing compliance with these rules by a preponderance of the evidence. Counsel for the Board shall represent the Board if directed to do so by the Board. 

(f) At the hearing, any party shall have the opportunity to call witnesses, examine and cross-examine witnesses, and to introduce such evidence as is relevant to the proceeding. Evidence shall be admitted at the discretion of the Board, and as long as that discretion is not abused, the Board shall not be restrained by technical Rules of Evidence. 

(g) Allhearingsshallbeconfidential,andshallnotbeopentothepublic,exceptat the request of the petitioner. Witnesses shall be sworn and a complete electronic record or a transcript shall be made. The presiding hearing officer shall have authority to rule on all motions, objections, and other matters presented. 

(h) Ininvestigationsandproceedingsundertheserules,theBoardshallhavepower to issue subpoenas and cause testimony to be taken under oath before the Board or Board members. All subpoenas shall be issued in the name and under the seal of the Supreme Court and served as provided by the Rules of Civil Procedure. Fees and costs of the subpoenas shall be paid from the funds of the Board or taxed as costs, as determined by the Board. 

(i) Themember,panel,orBoard,asthecasemaybe,mayorderthetestimonyofa witness to be taken by deposition within or without this Commonwealth in the manner prescribed for the taking of depositions in the Rules of Civil Procedure and the depositions may be used to the same extent as permitted under those rules. Costs for the taking of a deposition shall be paid from the funds of the Board or taxed as costs, as determined by the Board. 

(j) Within ninety (90) after the conclusion of a proceeding, the Board shall issue its decision. A copy of the Board's decision shall be promptly mailed to the petitioner by the Board. 

(k) Ifajudgeisdeemedtobenoncompliant,arequestforahearingshallnotoperate as a stay or supersedeas of any action taken by the Board with respect to the judge's 

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noncompliance, unless upon application and good cause shown, the Board grants a stay or supersedeas of its action. 

(I) A petitioner aggrieved by a Board decision may request reconsideration. There is no right to appeal provided under these rules. 

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