Tuesday, November 29, 2016

abuse - expungement - appeal - nunc pro tunc - confusing, equivocal notice

D.C. v. DHS – Cmwlth. Court – November 23, 2016 – en banc

Nunc pro tunc appeal permitted because of DHS’s “equivocal and confusing notice of how to get a hearing,” which “establihsed a breakdown in the administrative process,” thus entitling appellant to a nunc pro tunc appeal.

Friday, November 04, 2016

consumer protection - UTPCPL - justifiable reliance - causation

Kirwin v. Sussman Automotive – Pa. Superior Court – October 7, 2016

Held:  No violation of “catchall” provision of Consumer Protection Law, 73 P.S. 201-2)4)(xxi), where
- plaintiff got email solicitation from dealer with one price
- when P went to dealer, he was told that there had been computer error and actual price was $3,000 more
- knowing of this discrepancy, P paid the higher price, then sued under CPL

 UTPCPL’s “catchall” provision in 73 P.S. § 201-2(4)(xxi), which J-A17028-16 - 4 - provides liability for “fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.”  

“Deceptive conduct ordinarily can only take one of two forms, either fraudulent or negligent. . . . [T]he pre-1996 catchall provision covered only fraudulently deceptive practices. The broadening of the UTPCPL . . . makes negligent deception, e.g., negligent misrepresentations, actionable under the post-1996 catchall provision.” Dixon v. Northwestern Mutual, 2016 PA Super 186, -- A.3d -- (Aug. 25, 2016). Even with the broadening of the applicability of the catchall provision, in order to prevail on such a cause of action, “the UTPCPL plaintiff must still prove justifiable reliance and causation, because the legislature never intended [the] statutory language directed against consumer fraud to do away with the traditional common law elements of reliance and causation.” 

There was no “justifiable reliance” in this case, since P signed contract of sale with knowledge of the price discrepancy.  P did not make out a prima facie showing of justifiable reliance.,  and the UTPCPL claim alleging a “bait and switch” tactic on the part of car dealer must fail.

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 01, 2016

UC - vol. quit - sexual harassment, racial slurs - duty to act reasonably

Serrano v. UCBR – Cmwlth. Court – October 31, 2016

Held:  Incidents of sexual harassment and racial slurs justified claimant’s vol. quit, but she was nonetheless disqualified for failing to act reasonably, “with common sense,” in the face of those things.  Specifically, after reporting the problems to the employer, resigning from her job, and then returning to work w/agreement of the employer, she “always said that [things] were fine” when the employer made regular requests to her about how things were going.

Reporting of harassment, racial slurs
Sexual harassment and racial slurs may present adequate pressure to terminate one’s employment, and a claimant need not be subjected to such language or conduct indefinitely. Porco v. UCBR, 828 A.2d 426, 428 (Pa. Cmwlth. 2003); see also Peddicord v. UCBR, 647 A.2d 295, 298 (Pa. Cmwlth. 1994).   A claimant normally will not meet the requirement to make a reasonable effort to preserve employment unless the claimant notifies the employer of the harassment. Martin v. UCBR, 749 A.2d 541, 544 (Pa. Cmwlth. 2000). However, failure to report harassment may be excused where the record evidence reveals that doing so would be futile. Id. Moreover, “there is a certain level of conduct that an employee will not be required to tolerate and the Court will not place all responsibility upon an employee to resolve his or her work dilemma. Ultimately the employer bears the responsibility for eliminating harassment against employees in the workplace.” Comitalo v. UCBR, 737 A.2d 342, 345 (Pa. Cmwlth. 1999).

The decision in Mercy Hospital of Pittsburgh v. UnemploymentCompensation Board of Review, 654 A.2d 264 (Pa. Cmwlth. 1995), is directly 9 applicable.   There is no requirement to afford an employer a second attempt to rectify the situation, where  there is no evidence to suggest that the second attempt to end the harassment would be any different than the first attempt.   Here, Claimant satisfied the notification requirement by bringing her complaints to her supervisors  when she initially decided to quit. This notice afforded Employer the opportunity to rectify the situation. Claimant was not required to endure the alleged abusive behavior indefinitely, or to afford Employer more than one opportunity to address the alleged harassment. Her initial report to Employer provided the requisite notice to allow Employer to attempt to alleviate the harassment. Lending further credence to her efforts to continue an employment relationship is the fact that Claimant resigned but then agreed to return to work. This demonstrates Claimant’s willingness to allow Employer to remedy the problem and maintain her position. The Referee and the Board erred because the failure to notify Employer of the continuing harassment after Claimant’s return to work was not the fatal flaw in her claim.

Failure to act reasonably, with common sense
Nevertheless, the court affirmed the decision of the Board on other grounds.   The court found that Claimant was unable to demonstrate the third requirement of a necessitous and compelling reason for her voluntary quit, i.e.— that she acted with common sense. The Referee found that the employer “would regularly request the claimant’s assessment of the situation with the coworker, and the claimant always responded that they were fine.”   Whether or not there were, in fact, additional incidents of harassment after Claimant’s return to work, Claimant now maintains that she continued to have a conflict with the dispatch supervisor. Thus, Claimant was untruthful when she reported to employer that “they were fine.” Claimant’s knowing misrepresentation of the conflict is distinct from merely failing to report harassment a second time. We conclude that Claimant did not act with common sense, because she misrepresented the employment situation to Employer. Claimant, therefore, has failed to demonstrate a necessitous and compelling reason for her voluntary quit. Thus, pursuant to Section 402(b) of the Law, Claimant is ineligible for unemployment compensation benefits.

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)

Monday, October 31, 2016

threat to harm another - interstate communication - 18 USC 875(c)

US v. Elonis – 3d Cir. – October 28, 2016

Conviction upheld for violation on 18 USC 875(c) – use of interstate communications containing threat to injure the person of another

§818 USC 875 (c). Interstate communications
(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

Friday, October 28, 2016

privacy - Pa. Constitution - Article I, sec. 1

PSEA et al. v. Office of Open Records, DCED, et al.

Held:  The right to privacy under Article I, sec. 1, of the Pennsylvania Constitution precludes the wholesale disclosure of names and addresses of school teachers, absent a strong countervailing interest.

Wednesday, October 26, 2016

Rules of Prof. Responsibility 4.2 - contacting govt. officials - Discip. Board of Pa. newsletter

Attorney News - October 2016

Tip of the Month: Contacting Government Officials

Suppose you are representing a client in a dispute with a government agency. The agency is represented by counsel, perhaps the Attorney General’s Office or the local solicitor or municipal counsel. Rule 4.2 of the Rules of Professional Conduct prohibits a lawyer from communicating directly with a represented party about the subject of the representation without the consent of counsel, or as authorized by law. Does this prohibit you from petitioning the government agency on policy matters the way any other citizen would be allowed to do?
In 1997, the ABA Standing Committee on Ethics and Professional Responsibility addressed the question in 
Formal Opinion 97-408,  Communication with Government Agency Represented by Counsel (1997). The Committee noted that the “authorized by law” exception arises out of the preservation of the First Amendment’s protection of the right to petition the government in controversies with government officials. The Committee concluded that a lawyer representing a client before an agency may contact the agency when two conditions are satisfied:
1.     The officials to be contacted are in a position to take or recommend action in the matter and the substance of the communication relates to policy issues including settlement; and  
2.     The communicating lawyer gives opposing counsel advance notice of the impending communication so that they can give appropriate advice to their clients as to how to respond to the inquiry. 

The ABA opinion has generally been adopted and followed in state bar ethics opinions. It is important that the right to communicate with government officials recognized by the ABA pertains to matters of policy, not the particulars of cases.

Comment 5 to Rule 4.2 echoes this analysis, stating, “Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government.” Also, the fact of representation does not prohibit the lawyer from communicating about other matters unrelated to the representation. Comment 4 states, “the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter.”

Tuesday, October 25, 2016

employment - wages - payment by debit card violates WPCL

Siciliano v. Mueller, dba McDonalds – Pa. Super.

In a class action involving an issue of first impression, the court held that mandatory payment of wages by payroll debit card does not meet the requirement of section 260.3 of the WPCL that “wages shall be paid in lawful money of the United States or check.” 43 P.S. § 260.3.

The WPCL states that wages “shall be paid in lawful money of the United States or check.” 43 P.S. § 260.3. The language is clear. A debit card is not “lawful money” and it is not a “check” as contemplated by the drafters of the WPCL.   The Legislature obviously did not contemplate the concept of a payroll debit card when it adopted the language of section 260.3 in 1961.

The term “check” is defined in the WPCL as follows: “A draft drawn on a bank and payable on demand.” 43 P.S. § 260.2(a). A “draft,” though not defined in the WPCL, is “[a]n unconditional written order signed by one person (the drawer) directing another person (the drawee or payor) to pay a certain sum of money on demand or at a definite time to a third person (the payee) or to bearer. A check is the most common example of a draft.” Black’s Law Dictionary (10th ed. 2014).

The term “lawful money” is not defined in the statute; however, its common definition or approved usage does not include a debit card. See 1 Pa.C.S. § 1903 (where terms are not defined in statutes, Statutory Construction Act requires words and phrases to be construed by their common and approved usages). The Statutory Construction Act itself defines “money” as: “Lawful money of the United States.” 1 Pa.C.S. § 1991. B

The use of a voluntary payroll debit card may be an appropriate method of wage payment. However, until our General Assembly provides otherwise, the plain language of the WPCL makes clear that the mandatory use of payroll debit cards at issue here, which may subject the user to fees, is not. S