This Commonwealth Court Holding May Get Student Rights Advocates’ Goat!

No. 1,122

No. 983 C.D. 2014

Image: wormsandgermsblog.com

The Commonwealth Court of Pennsylvania upheld the refusal of a Common Pleas Court decision that denied the employer’s petition to vacate an arbitration award and reinstate a special education teacher who had been terminated due to an incident. The Public Employee Relations Act PERA) provides that an arbitration award is governed by a highly deferential “essence test.”

“Under the essence test, a reviewing court may vacate a PERA arbitration award only where the award is indisputably and genuinely without foundation in, or fails to logically flow from, the underlying collective bargaining agreement (CBA). If the essence test is satisfied, the court may further consider whether the award violates a well- defined and dominant public policy.”

Here’s the story: A group of special education students visited a petting zoo. A 14 year old autistic student “repeatedly lured a goat with food and hit it on the nose.

Several days later the teacher learned about the incident. So he hung a sign around the student’s neck which read “I abuse Animals.” The story goes on, with the teacher resisting the efforts of another teacher to ameliorate the humiliation of the sign by changing it to “I Love Animals.” When the news of this reached the school administration, the teacher was dismissed. This was followed by the filing of a grievance that was heard by an arbitrator.

At a hearing, other charges were added including extreme discipline, name calling and the use of trigger words. The teacher was charged with immorality, cruelty, persistent negligence in performance of duties, willful neglect of duties and willful violation and failure to comply with school law and regulations.

The Arbitrator sustained the grievance in part and denied it in part. She determined that the Grievant’s conduct did not constitute immorality, cruelty, etc. Therefore the Arbitrator ruled that Grievant was terminated without just cause. However, the Arbitrator found that the Grievant’s conduct demonstrated a lack of professionalism and converted the termination to a 53 day suspension without pay, running from October 11, 2011 to the first day of school in January 2012. The reinstatement was conditioned upon successful completion of an improvement plan structured by the Employer.

The award was appealed by the Employer to common pleas court. The Court determined that the Arbitrator’s award was rationally derived from the CBA, was not in violation of public policy and refused to vacate the award.

The Commonwealth Court upheld the trial court decision that the award was justified under the essence test. It also observed that the public policy exception to the essence test is extremely narrow.

“In light of the conditions imposed by Arbitrator, which address Employer’s concerns in this case, Arbitrator’s award does not pose an unacceptable risk to any well-defined or dominant school law or policy. [citing cases] Accordingly, we reject Employer’s contention that the trial court erred in failing to determine Arbitrator’s award violates the public policy exception.”

CLT

The Lesson of Deflategate.

No. 1,121

Image: onlyagame.wbar.org

Who would have thunk it?

So much about so little. But sometimes things happen that way.

The most obvious scenario has hardly been discussed. Ball boy forgets or is too lazy to inflate the game balls. Official forgets or is too lazy to check them.

Mistakes happen all of the time and when they do, other people often assume the worst.

Of course, after all this, the ball boy and the official are not going to tell the truth. They should, but they won’t. They are afraid of being fired — and with good reason. And so, it continues to be a big mystery.

As President Obama likes to say, we have here a “teachable moment.”

The Patriots did exactly the wrong thing in response to the accusation of cheating. They started denying wrongdoing before they had thoroughly investigated the facts. Instead of holding press conferences, they should have immediately announced that an investigation was being conducted and that they would have no comment until they had determined the facts. And then, they should have put the locker room and offices of the team on lock down and brought in their outside counsel to interview everyone who could have information.

The outside counsel’s report and conversations with management are, of course, subject to lawyer-client privilege. The discussion between lawyer and client cannot be discovered in litigation, or even by the almighty NFL. This gives management an opportunity to sift through the data and formulate conclusions in an orderly way. It also enables the lawyer and client to have candid conversations off the record.

Then, the following day, a spokesman for the team should have announced the factual findings. The focus should be on facts — not denial of accusations. No member of management, coach, team member or other insider should be permitted to discuss the matter with the press or the public. Of course they must cooperate with the NFL investigation — but not in a public forum.

What the Patriots did instead was to conduct a series of ill-prepared press conferences. In so doing, they exposed their star quarterback, coach and owner to unnecessary risk that something said would have to be retracted or worse. And more importantly, all of these presentations were hastily prepared, inarticulate and, very frankly, not terribly credible. It didn’t have to be that way.

None of the ideas expressed here are revolutionary. Most organizations of similar size conduct internal investigations when the situation demands. They usually have a damage control plans, too.

CLT

Category: News Commentary

The Mice That Roared

No. 1,120

There has been a recurring theme in this, the young 21st Century. The Mega-institutions have been under attack, frequently with success from loan wolves of various kinds. Technology has made it possible. And the victims, including the US Government, haven’t figured out what to do about it.

The latest examples are the hacking of military websites by pro-ISIS enemies, launched from points unknown. Even if these miscreants could be tracked down, they would most likely be outside the jurisdiction of any civilized country that is being hurt.

And so the law, any law anywhere, is helpless. Territorial law is, of course, ineffective. What is needed, if it is even possible, is an international convention adopted and imposed on the entire world wide web. But don’t say impossible. I remember the time, not that long ago, when the internet would have been called impossible — if any of us could have conceived the idea.

CLT

Category: News Commentary

The Robot is Calling. Should you Sue?

No. 1,119

Image: blogs.lawyers.com

A couple in Tampa Florida received a Christmas present from the U.S. District Court — a million dollar award against Bank of America. It seems that BOA called them and called them and called them, day after day, week after week, month after month, year after year. BOA was trying to get mortgage payments by wearing them down.It didn’t work.

But don’t get too excited about filing a similar suit. BOA, for some reason, failed to file an answer to the complaint and the Plaintiffs took a default judgment. The court denied the defendant’s petition to open the default and awarded $1,500 per call for multiple calls per day over years.

Don’t get too excited, I say, because if BOA had filed an answer, they probably would have won the case on motions to dismiss. But BOA never was able to present those arguments.

Nevertheless, if you are interested in pursuing such a cause of action, here is a link to Morgan & Morgan, the law firm that handled the Tampa case. Maybe you’ll get lucky, too.

CLT

Category: Consumer Protection
Tags: debt collection > robocalling > telemarketing

Ten Most Fascinating People

No. 1,118

Two great media moguls at work.
You interview me and I’ll interview you.

No, I do not intend to watch Barbara Walters’ Special. Hardly any of the people she names as the world’s most are that terribly fascinating to me.

Last year she and I were in agreement on a single candidate — Pope Francis. But then she couldn’t get an interview, and had to run second-hand stuff for the show. I don’t blame the Pope for not wanting to participate. Organized media celebrity worship represents much of what is wrong with our materialistic culture. Plus, think about it — Pope Francis and Taylor Swift on the same platform?

Come to think of it, though, Michael Strahan has the most mesmerizing gap between his front teeth. He knows it and smiles a lot. The networks, apparently, cannot get enough of it.

I guess that person on the list named Chelsea must be Chelsea Clinton, listed by her married name. I don’t care enough to look it up, though. Chelsea is only the third most fascinating person in her family. I must admit, nevertheless, that she’s miles and miles ahead of anybody named Kardashian.

And then there are the Royals. Goes to show what can be done when humans are bred for pretty.

Of course, the eye of each beholder is different. That goes for me, too. So, I decided to compile my own list of the ten most fascinating people in the world.

1. My wife — the best conversationalist I have ever met;

2. My daughter — brilliant, creative, imaginative problem solver;

3. My son-in-law — smartest person I have ever met, as maddeningly logical as Mr. Spock;

4. My long-time neighbor — renaissance man, compassionate, loved by almost everyone who knows him;

5. Cyril Wecht — a little obnoxious at times, but endlessly interesting;

6. Stephen Hawking –, bravest, most optimistic, a great teacher;

7. Troy Polamalu — an original, unpredictable, a walking contradiction;

8. Pope Francis — introduced the world to a fresh way of looking at very old ideas;

9. Yo Yo Ma — the consummate artist, soother of the savage beast;

10. Rand Paul — one of the most candid people in America.

Katy Perry, eat your heart out.

Your turn!

CLT

Category: Life Affirmation, News Commentary, Signs of the Times
Tags: Barbara Walters > most fascinating > most intriguing

Every New Day is a Gift

No. 1,117

Image: yumingsu.com

It is wonderful to wake up every morning since having quintuple bypass surgery. It is wonderful to hear that I am recovering and will soon be better than ever.

On the day Daylight Savings Time turned into Eastern Standard Time, I wrote about the importance of not wasting a single hour. At that time I had no idea that I would be embarking on the most important journey of my life. I was so lucky. Now I have many more hours to use and not waste. Every new day, yes, every new hour, is truly a gift.

CLT

Category: Life Affirmation, Milestones

Daylight Spending Time

No. 1,116

Image: wordstrumpet.com

We’ve all heard others (not us) complain about how there are not enough hours in the day. Well, once a year they get their wish. Today, November 2, 2014 is a 25 hour day. Of course, we have been saving it since Sunday March 9, when we all had a 23 hour day. But for what?What are you going to do with the 25th hour?

Common answers: 1. Sleep. 2. Loaf. 3. Watch TV (especially football).

Not acceptable. You do those things every day. You owe it to yourself to spend an hour on something unique and different — something you wouldn’t do if you didn’t have that 25th hour.

But what? Here’s a few ideas.

– How about learning something? Not just anything, mind you. Perhaps, something important that has been kicking around in your brain. Or something useful that you ought to know.

– How about planning something? No, not your ordinary to-do list. Instead, think of something that you won’t plan and you should.

– How about taking inventory? Again, not an inventory you regularly do. Find something important that you don’t regularly inventory.

– Adopt a new habit. Yes, that’s right. What should you be doing habitually, perhaps daily, that you don’t do?

– Pray. Gratitude is a good start.

– Do a good deed. Charity really does begin at home, by the way.

– Spend it with your family. (The default choice when you come up blank on the others.)

But whatever you do, don’t waste it.

CLT

Category: Life Affirmation
Tags: Daylight savings time > wasting time

LANDLORD AND TENANT: A few things to remember about appealing from the Magistrate.

No. 1,115

Image: landlords scoop.wordpress

Here are some things for lawyers and their clients to be aware of when filing appeals from the Magisterial District Judge in landlord tenant cases. Yes, this stuff can get complex. Thats why God made some of us with the aptitude to be lawyers.

1. Appeal in an action for possession must be filed ten days after the decision. This applies to appeals by landlords, too. Landlords don’t lose too often at the magistrate level, but when they are seeking possession, they too must file in ten days. Of course, if the tenant has moved out or if either party wants to appeal damages only, an appeal of the damage part of the award can be made within 30 days after the magistrate’s decision.

2. When the tenth day falls on a weekend or court holiday, the last day to appeal falls on the next day that the Prothonotary (Department of Court Records in Allegheny County) is open for business. Some days you might think are court holidays are not — and vice versa. A lot of them, like Columbus Day, are statutory Monday Holidays. Moreover, the courts may occasionally be closed on days when the Prothonotary or Department of Court Records is open.

3. If a tenant wants to appeal in forma pauperis, it is necessary for him or her to obtain a court order from the motions judge. Ideally, you should arrive at the Prothonotary or DCR at or before 9 AM and have enough time to take care of everything. They will give you the forms to take to court. Be prepared to wait, possibly an hour or more. Allow yourself the full morning to get everything done. Also, be aware that motions court may be cancelled on certain days, including certain Fridays.

4. It is hard to get information on the telephone. In Allegheny County, if you call the main number, you will get a an array of choices — all on tape. You may have to go in person to have your question answered. Don’t wait until the last day to go in in person.

5. It is not a bad idea to check the docket on the day after filing. There may be mistakes in spelling, addresses or other important information.

6. The affidavit regarding federally subsidized housing is often misunderstood by tenants filing appeals. This affidavit only applies when the federal government is paying part of the rent. If you pay half and your girlfriend/boyfriend pays half, this affidavit does not apply to you. While submitting the form may initially cause you to pay less into escrow, if the error is discovered later, you may not be able to catch up on the overdue escrow payments. That could lead to termination of the lease.

7. If the magistrate decided both a landlord tenant case and a cross-claim, it may be necessary to appeal both cases separately. If the cross-claim is not appealed, it stands. And it is possible to appeal the cross-claim and not the landlord-tenant case from which it arose. Of course, there are two separate appeal forms and two separate appeal fees.

8. If you do appeal both the LT case and the cross-claim, you will want to present a motion to have them consolidated before they go to trial. Otherwise, the odds are excellent that they will be scheduled for trial on separate days. This can also lead to inconsistent decisions and even double awards.

CLT

Category: Landlord and Tenant law and litigation
Tags: appeals by landlords > calculating the last day to file > consolidation of cases > federally subsidized housing > in forma pauperis

Attorneys: The Law is Changing Regarding Powers of Attorney

No. 1,114

Just a heads up. Act 95 of 2014, effective in part on July 2, 2014 with more to come, must be consulted when preparing powers of attorney.

It all started with the case of Vine v. Commonwealth of Pennsylvania State Employee Retirement Board, 607 Pa. 648, 9 A.3d 1150 (2010). Plaintiff had executed a power of attorney naming her husband as agent at a time she was in very poor physical and mental condition. There was apparently some question whether she had the ability to enter into a power of attorney. Her husband, employing the POA, made various elections in behalf of his wife under the retirement plan.Wife recovered and the parties were divorced. She then attempted to reverse one of the choices her husband had elected for her under the power of attorney.

The Retirement Board refused to make the change. Under the applicable statute as it literally stated and had always been interpreted, the Retirement Board was entitled to rely upon the Power of Attorney until revoked.

However, a divided Supreme Court held that, under the facts of this case, the Power of Attorney was not effective because Theresa Vine was not competent to execute a power of attorney and that the Board was liable to her for relying upon it..

This resulted in a reaction by banking and estates lawyers that ultimately resulted in legislation that went far beyond addressing the Vine case. The Advisory Committee on Decedents’ Estates Laws had issued a report recommending changes in Chapter 56 of the Probate Estates & Fiduciaries Code, which dealt with powers of attorney and Chapter 54, “Health Care Powers of Attorney.” However, Act 95 went beyond the recommendations of the Committee. According to one source in the general assembly, moreover, the legislature is not finished revising the law on powers of attorney.

After January 1, 2014, all powers of attorney are required to be executed before a notary (who cannot be the agent) and two separate witnesses.

A power of attorney may be signed by a third party on behalf of the principal if the principal is unable to sign and specifically directs the other person to sign.

In addition, the notices to be signed by the principal and agent have changed.

The powers of the agent have been, in some cases, expanded. Significant among these is the power to make gifts.

Of course, the moving purpose of Act 95 is to address the holding of the Vine case, which it does. The increased formalities, including the presence of witnesses, are intended to ameliorate concerns regarding the competency of the principal to execute the power of attorney. Civil liability is imposed for a third party refusal to honor the power, a somewhat revised format.

The changes under Act 95 are too numerous and have too many new implications to be summarized here. Any attorney undertaking to prepare a power of attorney after January 1 should become familiar with the provisions of Act 95 before drafting.

CLT

Category: Estates and Trusts, Orphan's Court Practice, Real Estate, Trends in the Law
Tags: Act 95 of 2014 > estate planning > general powers of attorney

CLT an AVVO Answers Top Contributor for 2014

No. 1,113

I just received notice that I am once again a top contributor to AVVO, as was the case last year. Those contributions were in the form of questions answered through AVVO about real estate and landlord tenant law. I have been doing this almost since the beginning of AVVO. I am currently no. 58 in the all-time rankings for landlord tenant submissions.

If you follow PittsburghLegal in Twitter, you will receive a tweet of all of my AVVO Answers, as well as all new posts in this blog.

CLT

Category: AVVO Answers, Landlord and Tenant law and litigation, Real Estate, Twitter
Tags: AVVO Answers

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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