Tuesday, June 30, 2015

debt collection - fdcpa - "materiality"

Jensen v. Pressler & Pressler – 3d Cir. – June 30, 2015





McKEE, Chief Judge.


We are asked to decide whether a false statement in a communication from a debt collector to a debtor must be material in order to be actionable under a provision of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692e. We conclude that materiality is required, as it is subsumed within the “least sophisticated debtor” standard that has traditionally governed FDCPA claims. Because we do not find the misstatement at issue in this case material, we will affirm the District Court’s grant of summary judgment to Pressler & Pressler and Midland Funding, LLC.

Friday, June 26, 2015

UC - willful misconduct - absences

Beck v. UCBR – Cmwlth. Court – unreported memorandum opinion – June 16, 2015



Absences alone, although possibly grounds for discharge, do not necessarily constitute willful misconduct. Vargas v. Unemployment Compensation Board of Review, 486 A.2d 1050, 1051 (Pa. Cmwlth. 1985). At least one of the following elements must be present to justify the denial of benefits: (1) excessive absenteeism; (2) failure to notify the employer in advance of the absence; (3) lack of good or adequate cause for the absence; (4) disobedience of an employer’s policy; or (5) disregard of warnings. Id. at 1052. “An employer has the right to expect [its] employee[s] to maintain regular working hours and to comply with office procedures.” Unemployment Compensation Board of Review v. Glenn, 350 A.2d 890, 892 (Pa. Cmwlth. 1976).


Once the employer meets its burden, the burden of proof shifts to the employee to prove that he had good cause for his actions. Guthrie, 738 A.2d at 522. The employee establishes good cause where his actions are justified or reasonable under the circumstances. Frumento v. Unemployment Compensation Board of Review, 351 A.2d 631, 634 (Pa. 1976). Whether a claimant has good cause to violate a work policy is a question of law subject to our review and should be viewed in light

of all of the attendant circumstances. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006).



The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.


If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/




UC - vol. quit - substantial change in working conditions and compensation - retaliation

WFG Natl. Title Insurance Co. v. UCBR – Cmwlth. Court – June 25, 2015 – unreported memorandum opinion



Claimant worked as a vice president of agency sales. His compensation was an annual salary of $105,000, plus commission.   In September 2013, Employer advised Claimant that he would be working under the direction of a new supervisor. In light of problems involving harassment and profanity that he was experiencing with his former supervisor, however, Claimant deemed it time to “go on the record” and registered a formal complaint with Employer’s human resources department outlining the behavior of his former supervisor and how it had increased his anxiety and led to a higher dose of medication.  Although Employer conducted an investigation, it dismissed Claimant’s allegations and took no disciplinary action against the former supervisor.


In October, 2013, Claimant’s new supervisor presented him with an itemization of new goals and expectations for the fall of 2013.  Part of the new plan involved the exclusion of Claimant’s top two income producing clients, something that would would result in a pay decrease of approximately 15% - 20% yearly.”  Another part of the new plan included the expectation that Claimant would achieve an average of ten new agents per month, despite that fact that Employer, as a whole, “achieve[d] only slightly higher than ten new agents per month.”  Soon thereafter, Claimant met with both his former and current supervisors, expressing his dissatisfaction with the new plan. In response, they advised Claimant that there would be no changes and that “he would be expected to conform to the new expectations.”  Claimant believed that the new plan constituted retaliation for his formal complaint.  Claimant quit his job “due to his belief [that] the new goals and expectations represented a unilateral change to his job duties and contained unachievable expectations.”


A claimant bears the burden of proving necessitous and compelling cause for leaving his or her job.   In order to show such cause, the claimant must establish 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 [his] employment.”  While we recognize that cause of a necessitous and compelling nature may exist where an employer has instituted an unreasonable, unilateral change in the employment agreement, mere dissatisfaction with reasonable modifications in working conditions is not considered good cause for a voluntary quit. Kistler v. UCBR, 416 A.2d 594, 597 (Pa. Cmwlth. 1980). It is up to the claimant to establish that the change was so unreasonable and so burdensome that a reasonable person under like circumstances would have been compelled to quit. Unangst v. UCBR, 690 A.2d 1305, 1307-08 (Pa. Cmwlth. 1997).


Where an employer modifies the method by which it pays its employees, such as altering the basis for commissions, necessitous and compelling cause for a voluntary quit may be established. #1 Cochran, Inc. v. Unemployment Comp. Bd. of Review, 579 A.2d 1386, 1390 (Pa. Cmwlth. 1990). While a significant reduction in pay may constitute necessitous and compelling cause, Naylon v. Unemployment Compensation Board of Review, 477 A.2d 912, 914 (Pa. Cmwlth. 1984), there is no talismanic percentage figure to denote a sufficiently substantial reduction in pay from one that is not. Each case must be decided on its own circumstances. Ship Inn, Inc. v. UCBR, 412 A.2d 913, 915 (Pa. Cmwlth. 1980).


In concluding that Claimant established necessitous and compelling cause for his voluntary quit, the Board weighed the evidence and found significance in both the combination and relatively quick succession of events. These events included Claimant’s reassignment to a new supervisor, Employer’s unwillingness to act on Claimant’s formal complaint, the substantial reduction in his compensation and presentation of the memo itemizing unachievable new goals and expectations. The proverbial “last straw” occurred at the supervisors’ meeting with Claimant when they refused to negotiate the unreasonable goals outlined in the memo. As the Board determined, it was not unreasonable for Claimant to conclude that Employer’s presentation of unattainable targets was retaliation for his recent complaint, which resulted in no action being taken by Employer. Accordingly, accepting Claimant’s version of the events and weighing the evidence, the Board concluded that Employer’s substantial and unilateral changes, done in the spirit of retaliation, constituted necessitous and compelling cause for Claimant’s voluntary quit. We agree.




The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.


If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/




Thursday, June 25, 2015

UC - wages - sec. 401(a) and 404 - claimant must earn at least 49.5% of wages outside of highest quarter

Alla v. UCBR – Cmwlth. Court – Junbe 25, 2015 -



It is a claimant’s burden to prove that he is financially eligible for unemployment benefits. Devine, 101 A.3d at 1237; Pagliei v. UCBR, 37 A.3d 24, 26 (Pa. Cmwlth. 2007). To be financially eligible for benefits, a claimant must satisfy the earnings requirements of sections 401 and 404 of the Law for his base year. 43 P.S. §§801(a), 804. Claimant received a payout of accrued sick, annual, and personal leave upon his separation in the third quarter of 2013 in the amount of $30,728. This payment was properly characterized as wages, and, absent evidence that Employer generally makes accrued leave payments in a different manner, it was properly included in the quarter in which it was paid by Employer to calculate Claimant’s base year wages. Id.; 34 Pa. Code §61.3(a).   Claimant did not earn at least 49.5% of his earnings outside his highest quarter for the qualifying base year.   Thus, Claimant is financially ineligible for unemployment compensation benefits under sections 401(a) and 404 of the Law.


Pa. Constitution - legislative procedure - single subject, change of original purpose

Leach v. Commonwealth – Cmwlth. Court – June 25, 2015 – en banc 7-0



Held: Act 192 violates Pennsylvania Constitution Article III, Section 1 and Section 3, relating to original purpose and single subject.


Act No. 192 of 2014, which began as a two-page bill establishing criminal penalties for the theft of secondary metals.   In the final stages of enactment, it became an act that also created a civil cause of action for a broad class of individuals and organizations seeking to challenge municipal firearm legislation, and it authorized an award of attorney fees to successful challengers in the newly-created civil action.


Tuesday, June 23, 2015

FMLA - oppty. to cure insufficient medical certification - 3d Cir.

Hansler v. Lehigh Valley Hospital Network – 3d Cir. – June 22, 2015



Deborah Hansler requested intermittent leave from her former employer, Lehigh Valley Health Network, under the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq. She submitted a medical certification requesting leave for two days a week for approximately one month.  The medical certification refers to the length of her requested leave but not the nature or duration of her condition.  A few weeks later, after she took several days off work, Lehigh Valley terminated Hansler’s employment without seeking any clarification about her medical certification, as required by law.  Lehigh Valley cited excessive absences and informed her that the request for leave had been denied.  Hansler sued Lehigh Valley for violations of the Medical Leave Act, and the District Court dismissed the complaint on the basis that the medical certification supporting Hansler’s request for leave was “invalid.” We conclude that, in failing to afford Hansler a chance to cure any deficiencies in her medical certification, Lehigh Valley violated the Medical Leave Act. Accordingly, we reverse and remand for further proceedings.


The Department of Labor’s regulations govern how employers are to respond to perceived deficiencies in medical certifications. An employer “shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient.” 29 C.F.R. § 825.305(c). A certification is “incomplete” if the “employer receives a certification, but one or more of the applicable entries have not been completed.” Id. A certification is “insufficient” if the “employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive.” Id. If the employer determines that a certification is either incomplete or insufficient, it may deny the requested leave on the basis of an inadequate certification. But it may only do so if it has “provide[d] the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure any such deficiency.” Id.; see Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832, 837 (7th Cir. 2014) (“[T]he regulations do not authorize the employer to deny FMLA leave where the employee fails to provide a complete and sufficient certification but is not given the opportunity to cure the deficiency.”).


Hansler does not argue on appeal that her certification established the “extended period of time” requirement under the FMLA, and we do not decide that issue here.   Instead, Hansler maintains she was entitled to the cure period set forth in the regulations because the certification was insufficient, rather than negative on its face. We agree.  When a certification submitted by an employee is “vague, ambiguous, or non-responsive” the employer must, under 29 C.F.R. § 825.305(c), provide the employee an opportunity to cure the deficiency within seven days.   Cf. cases discussing negative certifications.  Although the First, Sixth, and Seventh Circuits appear to agree that “employers have no responsibility to conduct further investigation when a certification is invalid on its face,” the cases discussing negative certifications do not apply where a court or employer are considering an ambiguous or non-responsive certification. Hoffman, 394 F.3d at 418-19.



If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/





Thursday, June 11, 2015

admin. law - barbers - license - criminal conviction

Kirkpatrick v. Bureau of Prof. and Occup. Affairs – Cmwlth. Court – June 10, 2015



Barber’s license was improperly revoked based on his plea of nolo contendere to misdemeanor indecent assault, where the crime bore no relationship to his practice of barbering and the relevant statute referred only generally to engaging in “unethical or dishonest practice or conduct....” 


The General Assembly could have easily shown its intention to make a barber subject to discipline by indicating, as it had in other statutes, that a conviction would have that effect.  Without such indication of legislative intent, the Board would have complete discretion, unrestricted by any standards.




If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/


admin. law - late appeal - non-negligent circumstances

In re J.K. – Cmwlth. Court – June 10, 2015



On appeal from finding of indicated report of child abuse, unrebutted testimony of claimant’s attorney about inability to perfect appeal within applicable time because of medical emergency was sufficient to establish non-negligent circumstances permitting late appeal, under Bass v. Cmwlth, 401 A.2d 1133 (Pa. 1979) and its progency.


DPW erred in requiring attorney to present other evidence to support his testimony, when that testimony was neither challenged nor discredited




If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/



Tuesday, June 09, 2015

admin. law - evidence - when silence is an admission

Lancaster EMS Assn. v. UCBR – June 4, 2015 – unreported memorandum opinion



Board decision in favor of claimant affirmed.  Employer appeal dismissed


silence as admission

“Silence is considered an admission, only when the circumstances are such that one ought to speak and does not.” McIntyre v. Unemployment Comp. Bd. of Review, 687 A.2d 416, 418 (Pa. Cmwlth. 1997). We define these circumstances in the context of the events surrounding discharge, such as when the person presenting the information is a supervisor with an ability to terminate an employee, and the employee refused to deny the accusation. Id.   We declined to find an admission by silence when a claimant is testifying at a UC hearing. See Carson v. Unemployment Comp. Bd. of Review, 711 A.2d 582 (Pa. Cmwlth. 1998).  This Court holds the law on implied admissions does not lessen an employer’s burden of proof in a willful misconduct case. Id.; see also Snyder v.  Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 104 C.D. 2013, filed August 27, 2013) (unreported), 2013 WL 4530950, *5 (distinguishing claimant’s statement in UC hearing with statement to employer at the time she was confronted with misconduct). We reasoned “it is not appropriate to require a claimant to deny uncorroborated, hearsay allegations raised by an employer at a hearing, particularly when the burden of proof lies with [the] employer.” Carson, 711 A.2d at 584; Snyder 2013 WL 4530950, *5 (holding employer is required to “present independent, competent testimony corroborating an accusation of misconduct before the Court may make an adverse inference from a claimant’s silence.”).


The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.


If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

UC - vol. quit - repeated late payment of wages

Weavertown Transp. Leasing v. UCBR – Cmwlth. Court – June 8,2015 – unreported memorandum opinion



Court affirmed UCBR decision holding that claimant had good cause to quit his job, where  employer repeatedly failed to pay claimant proper wages at the time they were due.


Even though Employer issued supplemental checks to resolve some of the alleged payroll discrepancies and, therefore, did not technically refuse to pay Claimant, it is undisputed that Employer repeatedly failed to pay Claimant the proper amount owed to him when it was due.


Moreover, to hold that Claimant is ineligible for UC benefits because he would not accept being repeatedly, untimely paid the full amount for his work efforts would be contrary to this Court’s precedent and Section 3(a) of the Wage Law, which requires that “employer shall pay all wages . . . due to his employes on regular paydays designated in advance by the employer.” 43 P.S. § 260.3(a)  (emphasis added). This Court has previously stated that “[a] contrary view would permit an employer to require a worker to submit to denial of a [timely] day’s pay under pain of loss of unemployment benefits. As the scriptural admonition states, the laborer is worthy of his hire.” LaTruffe, 453 A.2d at 48 (holding that a claimant had a necessitous and compelling reason to quit his employment where the employer wrongfully refused to pay him for one day’s work).


The court has held that the “failure to make timely payment for services rendered creates a real and substantial pressure upon an employee to terminate employment” and “repeat occurrences [of such failures] would cause a reasonable person to terminate employment.” Shupp v. Unemployment Compensation Board of Review, 18 A.3d 462, 465 (Pa. Cmwlth. 2011). The “underpayment of wages over a period of time [is] also sufficient cause to quit.” LaTruffe v. Unemployment Compensation Board of Review, 453 A.2d 47, 47 (Pa. Cmwlth. 1982) (citing Frey v. Unemployment Compensation Board of Review, 383 A.2d 1326, 1327 (Pa. Cmwlth. 1978)). A claimant will not be ineligible for UC benefits as long as the claimant “take[s] ‘common sense’ action that would have given the employer an opportunity to understand the nature of [his] objections and to take prudent steps to resolve the problem.” Unclaimed Freight Company v. Unemployment Compensation Board of Review, 677 A.2d 377, 379 (Pa. Cmwlth. 1996) (citing Tedesco Manufacturing Company, Inc. v. Unemployment Compensation Board of Review, 552 A.2d 754, 756 (Pa. Cmwlth. 1989)); Homan v. Unemployment Compensation Board of Review, 527 A.2d 1109, 1110 (Pa. Cmwlth. 1987).


Pursuant to Section 3(a) of the Wage Payment and Collection Law (Wage Law),4 which is implicated whenever a claimant asserts that he quit due to an employer’s failure to properly pay wages, [e]very employer shall pay all wages . . . due to his employes on regular paydays designated in advance by the employer. Overtime wages may be considered as wages earned and payable in the next succeeding pay period. All wages . . . earned in any pay period shall be due and payable within the number of days after the expiration of said pay period as provided in a written contract of employment . . . . 43 P.S. § 260.3(a) (emphasis added); Shupp, 18 A.3d at 464. Applying Section 3(a) of the Wage Law, this Court has held that “employees are well within their rights to demand timely payment for work performed” and that “payment as agreed for services rendered is the very essence of an employment relationship, such that no employee can be compelled to work without payment.” Shupp, 18 A.3d at 464 (emphasis omitted).




The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.


If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

admin. law - Statutory Construction Act applies to agency regulations

Quest Diagnostics Venture LLC v. Commonwealth – Cmwlth. Court – June 9, 2015



The statutory construction rules apply to the interpretation of an agency's regulations. Wheeling-Pittsburgh Steel Corp. v. Dep't of Envtl. Prot., 979 A.2d 931, 937 (Pa. Cmwlth. 2009).


For example,where the words of the regulations are clear and free from all ambiguity, they may not be disregarded under the pretext of pursuing its spirit.   Statutory Construction Act, 1 Pa. C.S. § 1921(b); Pacella v. Washington Cnty. Tax Claim Bureau, 10 A.3d 422, 427 (Pa. Cmwlth, 2010).   In addition, the regulations must be construed, if possible, to give effect to all of its provisions. 1 Pa. C.S. § 1921(a); Wheeling-Pittsburgh Steel, 979 A.2d at 937.

Wednesday, May 20, 2015

admin. law - due process - notice of adjudication and of right to appeal

Uzarski v. State Police – Cmwlth. Court – May 19, 2015



Civilian employee of State Police was entitled to due process protections (notice, opportunity to be heard, etc.) in 2 Pa. C.S. 501 et seq., before state employer could hold her financially responsible for lost/damaged state property.


Neither of two internal memos from one of the employee’s supervisors to another met the minimum due process requirements under the law.   Neither was served on Petitioner, nor did either advise her of any right to appeal.   There was no indication on either memo (the latter of which was an “adjudication”) that the aggrieved person was even copied or that either was a final administrative decision on the matter.   Accordingly, in the absence of service on Petitioner and, therefore, adequate notice of the decision, and the complete lack of any notice regarding her right to appeal, the memo simply was insufficient to trigger a thirty-day limit within which to file a petition for review.


Section 504 of the Law, 2 Pa. C.S. 504, in pertinent part, provides that: “No adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard. . . .” 2 Pa. C.S. § 504 (emphasis added).  Moreover, in Holloway v. Lehman, 671 A.2d 1179, 1181 (Pa. Cmwlth. 1996), this Court noted that, “[w]hat process is due, at a minimum, to one who has lost property via the action of a Pennsylvania State agency or Commonwealth official is addressed in the [Administrative Agency Law].”  That process includes, at a minimum, an opportunity to be heard, to have testimony be recorded, to have a full and complete record of the proceedings be kept, the right to examine and cross-examine witnesses and a written adjudication with findings and reasons for the decision.   





Consumer Protection - standard of proof

Boehm v. Riversource Life Insurance – Pa. Super – May 19, 2015



Fraudulent misrepresentation case in connection with the sale of life insurance policies.  Jury found in favor of defendant on common law fraud claim, but court found for plaintiffs in the amount of $295,305.78, including attorneys’ fees and costs.  The Superior Court affirmed.


Liberal construction

1994). “The UTPCPL must be liberally construed to effect the law’s purpose of protecting consumers from unfair or deceptive business practices.” Wallace v. Pastore, 742 A.2d 1090, 1092, 1093 (Pa.Super. 1999), appeal denied, 764 A.2d 1071 (Pa. 2000), citing Hodges v. Rodriguez, 645 A.2d 1340 (Pa.Super. 1994 “In addition, the remedies of the UTPCPL are not exclusive, but are in addition to other causes of action and remedies.” Id. (citations omitted). “The UTPCPL’s ‘underlying foundation is fraud prevention.’” Weinberg v. Sun Co., Inc., 777 A.2d 442, 446 (Pa. 2001), quoting Commonwealth v. Monumental Properties, Inc., 329 A.2d 812, 816 (Pa. 1974).


Standard of proof

Trial court’s use of preponderance standard of proof affirmed.  In the predominant number of civil cases, where only economic and property interests are at stake, the evidentiary burden requires only proof by a preponderance of the evidence. Section 201-9.2 of the UTPCPL, providing for private actions, does not set forth which standard of proof applies, and apparently the matter has never been decided by the Pennsylvania appellate courts. There is no language anywhere in the UTPCPL suggesting that private actions brought pursuant to Section 201-9.2 should be governed by a more demanding standard of proof than proof by a preponderance of the evidence. Moreover, the preponderance of the evidence standard of proof, which is the standard usually applied to remedial legislation, is consistent with the UTPCPL’s purpose of protecting the public from fraud and unfair or deceptive business practices.  The court relied heavily on and quoted liberally from Judge Wettick’s opinion in eck v. Metropolitan Life, 2006 WL 634564 (CCP Allegheny 2006) and cited supporting case law from other states.


Parol evidence – Toy case

The court held that the parol evidence rule did not bar proof of the insurance agents’ misrepresentations, which were alleged to be fraud in the execution of the contract rather than fraud in the inducement.  Toy v. Metropolitan Life, 928 A.2d 186 (Pa. 2007).  The trial court found the the plaintiff’s reliance on the misrepresenations was justifiable and that plaintiff was credible