Friday, December 08, 2017

Paternity - acknowledgment - 23 Pa. C.S. 5103.

S.N.M. v. M.F. – Superior Court – November 20, 2017


Held:  Trial court erred in ordering putative father’s (PF) 2016 motion for genetic testing, where custody order had been entered between mother and PF, including PF’s formal acknowledgment of paternity.

In R.W.E. v. A.B.R., 961 A.2d 161 (Pa. Super. 2008), the Court stated that a signed, witnessed, voluntary acknowledgment of paternity shall be considered a legal finding of paternity if it is not rescinded by the signatories within sixty days of its signing. 23 Pa.C.S. § 5103(g)(1). After sixty days, the acknowledgment may only be challenged in court on the basis of fraud, duress or material mistake of fact, if established by the challenger through clear and convincing evidence. 23 Pa.C.S.  § 5103(g)(2). Id. at 167. Thus, because PF signed the acknowledgment of paternity and presented nothing to show fraud, duress or material mistake of fact, the paternity of child was established and cannot be challenged at this point.   Accord,  D.M. v. V.B., 87 A.3d 323, 327 (Pa. Super. 2014)


See also Wachter v. Ascero, 550 A.2d 1019, 1021 (Pa. Super. 1988) (stating that “blood test should not have been ordered … even for humanitarian purposes, and should never be ordered unless it is to establish paternity in a proceeding where paternity is a relevant fact and has not already been determined in a prior proceeding”). Here, the custody agreement, made an order of court, is such a proceeding that determined paternity. Accordingly, the trial court abused its discretion in granting the genetic testing.

Wednesday, December 06, 2017

UC - willful misconduct - good cause - religious belief

Kaite v. UCBR – Cmwlth. Court – November 29, 2017

Claimant had good cause to refuse employer direction for her to get a fingerprint background check, where she had a sincerely held religious belief against fingerprinting, in spite of the fact that she did not belong to an particular church or other religious organization. 

From the opinion:

The employer bears the burden of proving the existence of the work rule and its violation, and once the employer establishes that, the burden then shifts to the claimant to prove that the violation was for good cause. Oliver v. UCBR, 5 A.3d 432, 438 (Pa. Cmwlth. 2010). Where the state denies benefits because of conduct mandated by a religious belief, putting substantial pressure on a person to modify behavior and violate that belief, a burden upon religion exists. Cassatt v. UCBR, 642 A.2d 657, 659 (Pa. Cmwlth. 1994). The burden that a denial places on a claimant’s right to free exercise must be sufficiently compelling to override the claimant’s First Amendment rights. Id.
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The United States Supreme Court has held that a conditioning of the availability of benefits upon an employee’s willingnessto violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties. Sherbert v. Verner, 374 U.S. 398, 406 (1963).
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The Board found that Petitioner’s beliefs were personal and not religious because the Petitioner, at the time of the hearing, indicated she is not a member of any formal, recognized or organized religion. (R.R. 37a.) The Board 8 concluded the beliefs were personal because she kept her religion quiet and only practiced in her home. Id. The United States Supreme Court rejected the notion that to claim the protection of the Free Exercise Clause one must be responding to the commands of a particular religious organization. Frazee v. Illinois Department of Employment Security, 489 U.S. 829, 834 (1989). This Court cautioned in Monroe that the Court must avoid any predisposition toward conventional religions so that unfamiliar faiths are not branded as secular beliefs. Monroe, 535 A.2d at 1225.   See also, U.S. Equal Employment Opportunity Commission [EEOC] v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017

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Monday, December 04, 2017

LT - excessive sec. deposit - violation of UTPCPL - treble damages

E.S. Management v. Gao et al. – Superior Court – November 15, 2017

Landlord found liable to four Chinese national students at Carnegie Mellon University

* excessive security deposit (more than two months), in violation of  68 P.S. 250.511a

* UTPCPL violation – students were in China, had limited English proficiency, lease at 15 pages, single-spaced,
   students given only two days to review it – lease never executed - L refused to return deposit

* treble damages award under UTPCPL affirmed – egregious conduct present but not required -
“Discretion to treble damages under the UTPCPL should not be closely constrained by the common-law requirements associated with the award of punitive damages. . . . Nevertheless, the discretion of courts of original jurisdiction is not limitless, as we believe that awards of treble damages may be reviewed by the appellate courts for rationality, akin to appellate review of the discretionary aspect of equitable awards, as previously discussed. Centrally, courts of original jurisdiction should focus on the presence of intentional or reckless, wrongful conduct, as to which an award of treble damages would be consistent with, and in furtherance of, the remedial purposes of the UTPCPL. Schwartz v. Rockey, 932 A.2d 885, 898 (Pa. 2007) (internal citation and footnote omitted).”

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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)





Tuesday, November 21, 2017

name change - transgender person - right to hearing

In re A.S.D – Pennsylvania Superior Court – November 20, 2017

majority opinion

concurring opinion

Transgender person (male to female) petitioned under 54 Pa. C.S.  702 for change of name, alleging consistent use, avoidance of identification issues, and lessening of social stigma.  Applicant had been convicated of 3d degree felony more than two (2) years prior to name change petition but was not on probation or parole and thus satisfied all statutory conditions under sec. 702 (c)(1), as the trial court recognized.  However, the trial court denied the petition, without holding a hearing, citing the criminal conviction, and provided that the applicant could re-file in 12 months.

The majority reversed and remanded for a hearing, citing In re Harris, 707 A.2d 225 (Pa. Super. 1997), which mandated a hearing if a petitioner satisfied all statutory prerequisites, after which it could grant or deny the petition.  

The concurring judge felt tha compliance with the “technical requirements” of the name-change statute “should be the sole consideration...utilized by the trial court,” citing the concurring opinion of Juge Popovich in In re Harris.  The judge felt that the petition should be granted “if, upon holding the hearing, the court find no indication that the name change is being sought for fraudulent purposes.”

The concurring judge said:

In enunciating his position, Judge Popovich highlighted the rationale underlying the change of name statute, noting that the primary purpose is to prohibit fraud by those trying to avoid financial obligations. This intent is reflected in the penalty provision of the statute, which applies only to ‘person[s] violating the provision of this chapter for the purpose of avoiding payment of taxes or other debts.’ Id. at 229 (Popovich, J., concurring) (citing Commonwealth v. Goodman, 676 A.2d 234, 236 (Pa. 1996)). He observed that the statute is purely procedural, and absent an indication of fraudulent intent, “[t]his is where the inquiry ends.” Id. at 229. . . . .

I believe that the hearing required by 54 Pa.C.S. § 701(a.1)(3) is intended to provide a forum for individuals or creditors to oppose a proposed name change based on suspected fraudulent purposes or other nefarious intent. In re Miller, 824 A.2d 1207, 1210-1211 (Pa.Super. 2003) (stating “the necessity for judicial involvement in name change cases centers on government concerns that persons not alter their identity to avoid financial obligations.”) (brackets and citation omitted). Hence, any hearing held pursuant to the Judicial Change of Name statute should focus only upon evidence relating to these concerns and the requirements enunciated in § 702. I fear that any reason utilized outside the dictates of the statute to deny a petition raises the specter of pretext and constitutes an abuse of discretion.

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Wednesday, November 15, 2017

mortgage assistance - HEMAP - applicant not eligible

Bowman v. PHFA – Cmwlth. Court – November 14, 2017 – unreported memorandum opinion* 

Held:  Applicant not eligible for HEMAP mortgage assistance. Substantial evidence supported findings that  a) there was no reasonable prospect that applicant would be able to resume full mortgage payments within 24 month, or b) that she was suffering from financial hardship due to circumstances beyond her control.
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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)
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Comments by Peter Schneider of CLS 


This is an interesting decision. HEMAP denial was affirmed on the basis that there was no reasonable prospect of resuming payments, but Commonwealth Court disagreed with the hearing examiner’s finding that hardship was not beyond borrower’s control:

B. Financial Hardship
Petitioner’s failure to satisfy the reasonable prospect element of Act 91 is
dispositive of her application for a HEMAP loan. However, we write briefly to
highlight the errors the Hearing Examiner made when considering the issue of
financial hardship.

Act 91 provides that the mortgagor must establish that she “is suffering
financial hardship due to circumstances beyond the mortgagor’s control which
render the mortgagor unable to correct the delinquency or delinquencies within a
reasonable time and make full mortgage payments.” 35 P.S. § 1680.404c(a)(4). Act
91 does not define the phrase “circumstances beyond the mortgagor’s control.”
However, Act 91 indicates that PHFA “may consider information regarding the
mortgagor’s employment record, credit history and current income.” 35 P.S.
§ 1680.404c(a)(10). On the issue of the mortgagor’s employment record, PHFA’s
HEMAP Policy Statement adds that “[u]nemployment or underemployment,
through no fault of the homeowner” are examples of circumstances beyond the
mortgagor’s control that result in financial hardship to the mortgagor. 12 Pa. Code.
§ 31.205(b)(1).10

In contrast, PHFA will not consider “[t]ermination of employment
by the homeowner without a necessitous cause or termination of the homeowner’s
employment by an employer for willful misconduct” to be circumstances beyond the
mortgagor’s control. 12 Pa. Code § 31.205(c)(2). Section 31.205 of the Policy
Statement does not define “necessitous cause” or “willful misconduct.” However,
these same terms appear in Section 402(b) and (e) of the Unemployment
Compensation (UC) Law.11

In concluding that Petitioner did not suffer a financial hardship due to
circumstances beyond her control, the Hearing Examiner found both that Petitioner
“voluntarily terminated” her position with Human Services and that she was “forced
to resign.” (Examiner’s Decision at 2, 6.) These findings are inconsistent. See Pa.
Liquor Control Bd. v. Unemployment Comp. Bd. of Review, 648 A.2d 124, 126 (Pa.
Cmwlth. 1994) (noting that an employee who resigns in order to avoid an imminent
discharge has not voluntarily resigned but has been discharged and is entitled to UC
benefits if she has not committed willful misconduct). If Petitioner was forced to
resign in order to avoid an imminent discharge and did not commit an act of willful
misconduct, it may have been that the termination of her employment with Human
Services was through no fault of her own, and the loss of that employment, in
combination with the death of her mother and the resultant loss of $1,500 a month
in rental income, constituted a financial hardship due to circumstances beyond
Petitioner’s control. Thus, had Petitioner not failed to satisfy the reasonable prospect
element, we would have remanded this matter for the Hearing Examiner to resolve
this inconsistency on the issue of financial hardship.

9 A mortgagor may reapply for assistance from PHFA if “there is a material change in
circumstances.” 35 P.S. §1680.404c(b).
10 We have never held that 12 Pa. Code § 31.205 is a statement of policy and not a
regulation, but, as noted, we have held that the section that follows it, 12 Pa. Code § 31.206, is a
statement of policy, and all of subchapter B of chapter 31 of the Pennsylvania Code, which
addresses HEMAP, is referred to as a “policy statement.”
11 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.

§ 802(b), (e).



Tuesday, November 14, 2017

UC - willful misconduct - social media policy not violated

Waverly Heights Ltd. v. UCBR – Commonwealth Court – November 13, 2017

Held: Tweet of claimant on her personal Twitter page held not to violate ER social media policy.

Tweet of July 2016:  “@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!”

Social media policy provided:
[Employer] has an interest in promoting and protecting its reputation[,] as well as the dignity, respect, and confidentiality of its residents, clients, and employees as depicted in social medial, whether through [Employer’s] own postings or that of others. Towards that end, [Employer] will actively manage the content of its social media sites to uphold the mission and values of the company. Also, [Employer] expects employees who identify themselves with [Employer] in either internal or external social media to conduct themselves according to this policy.

Where an employer seeks to deny UC benefits based on a work-rule violation, the employer must prove the existence of a work rule, the reasonableness of the rule and the employee's violation of the rule. Maskerines v. UCBR, 13 A.3d 553, 557 (Pa. Cmwlth. 2011). If the employer meets its burden, the burden then shifts to the claimant to demonstrate good cause for her actions. Johns, 87 A.3d at 1010. Here, Employer terminated Claimant for violating its Social Media Policy because she represented herself as Employer’s Vice President.


Sunday, November 12, 2017

Protection of Victims of Sexual Violence or Intimidation Act (PVSVIA), 42 Pa.C.S. §§ 62A01-62A20 - standard of proof - preponderance of the evidence

EAM v. AMD III – Superior Court – October 26, 2017

The standard of proof under the Protection of Victims of Sexual Violence or Intimidation Act (PVSVIA), 42 Pa.C.S. §§ 62A01-62A20, is a preponderance of the evidence, like the Protection from Abuse Act, 23 Pa. C.S. 6101 et seq., despite the fact that the definition of “sexual violence” is defined by reference to the Crimes Code, 18 Pa. C.S. ch. 31.

The court said that the “argument that the PVSVIA requires a finding of proof beyond a reasonable doubt, is untenable in light of the statutory framework as a whole. Thus, we reject Appellant’s premise that a criminal conviction or other finding of proof beyond a reasonable doubt is a prerequisite to a successful PVSVIA claim.” 

By its express terms, the statute is meant to provide “safety and protection from future interactions with” the person who abused them, “regardless of whether they seek criminal prosecution....This chapter provides the victim with a civil remedy requiring the offender to stay away from the victim....”   [emphasis in original]
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