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.

__._,_.___

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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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)



Friday, November 10, 2017

UC - late appeal - claimant negligence

Constantini v. UCBR – Cmwlth. Court – November 8, 2017

Held:  Claimant not entitled to late appeal nunc pro tunc where she admitted having put aside notice of determination—out of frustraton with an adverse decision—and not examining it closely until the appeal time had passed.  


NOTE:  I think claimant was properly denied a late appeal in this case.  Even so, the case is disturbing because the Notice of Determination was dated June 3 but not mailed until June 6.  Although claimant was not granted a late appeal, the Court noted that appeal date “should have been June 21”—one day later than the date on the Notice (June 20).   The claimant did not file her appeal until June 28, five days after speaking with a Department rep., who advised her to file an appeal.

appeals - deadlines - when "jurisdictional" - statute v. court-made rule

Hamer v.  Neighborhood Housing Services of Chicago

Syllabus HAMER v. NEIGHBORHOOD HOUSING SERVICES OF CHICAGO ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 16–658. Argued October 10, 2017—Decided November 8, 2017

An appeal filing deadline prescribed by statute is considered “jurisdictional,” meaning that late filing of the appeal notice necessitates dismissal of the appeal. See Bowles v. Russell, 551 U. S. 205, 210– 213. In contrast, a time limit prescribed only in a court-made rule is not jurisdictional. It is a mandatory claim-processing rule that may be waived or forfeited. Ibid.   This Court and other forums have sometimes overlooked this critical distinction. See Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 161.

Petitioner Charmaine Hamer filed an employment discrimination suit against respondents. The District Court granted respondents’ motion for summary judgment, entering final judgment on September 14, 2015. Before October 14, the date Hamer’s notice of appeal was due, her attorneys filed a motion to withdraw as counsel and a motion for an extension of the appeal filing deadline to give Hamer time to secure new counsel. The District Court granted both motions, extending the deadline to December 14, a two-month extension, even though the governing Federal Rule of Appellate Procedure, Rule 4(a)(5)(C), confines such extensions to 30 days. Concluding that Rule 4(a)(5)(C)’s time prescription is jurisdictional, the Court of Appeals dismissed Hamer’s appeal.

Held: The Court of Appeals erred in treating as jurisdictional Rule 4(a)(5)(C)’s limitation on extensions of time to file a notice of appeal. Pp. 5–10.

(a) The 1948 version of 28 U. S. C. §2107 allowed extensions of time to file a notice of appeal, not exceeding 30 days, “upon a showing of excusable neglect based on failure of a party to learn of the entry of the judgment,” but the statute said nothing about extensions when the judgment loser did receive notice of the entry of judgment. In 1991, the statute was amended, broadening the class of prospective appellants who could gain extensions to include all who showed “excusable neglect or good cause” and reducing the time prescription for appellants who lacked notice of the entry of judgment from 30 to 14 days. §2107(c). For other cases, the statute does not say how long an extension may run. Rule 4(a)(5)(C), however, does prescribe a limit: “No extension [of time for filing a notice of appeal] may exceed 30 days after the prescribed time [for filing a notice of appeal] or 14 days after the date [of] the order granting the [extension] motion . . . , whichever is later.” Pp. 5–6.

(b) This Court’s precedent shapes a rule of decision that is both clear and easy to apply: If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category.

In concluding otherwise, the Court of Appeals relied on Bowles. There, Bowles filed a notice of appeal outside a limitation set by Congress in §2107(c). This Court held that, as a result, the Court of Appeals lacked jurisdiction over his tardy appeal. 551 U. S., at 213. In conflating Rule 4(a)(5)(C) with §2107(c) here, the Seventh Circuit failed to grasp the distinction between jurisdictional appeal filing deadlines and deadlines stated only in mandatory claim-processing rules. It therefore misapplied Bowles. Bowles’s statement that “the taking of an appeal within the prescribed time is ‘mandatory and jurisdictional,’ ” id., at 209, is a characterization left over from days when the Court was “less than meticulous” in using the term “jurisdictional,” Kontrick v. Ryan, 540 U. S. 443, 454. The statement was correct in Bowles, where the time prescription was imposed by Congress, but it would be incorrect here, where only Rule 4(a)(5)(C) limits the length of the extension. Pp. 7–10.

835 F. 3d 761, vacated and remanded.


GINSBURG, J., delivered the opinion for a unanimous Court.

Sunday, November 05, 2017

consumer protection - attorney fees - fraud - etc.

Krishnan v. Cutler Group – Pa. Super. – October 2, 2017

Held:  Contractor which built subject to chronic water infiltration and damage to home was liable for attorney fees and expert costs under the state consumer protection law.

Attorney fees – multiple theories of relief
A court in awarding attorney fees under the UTPCPL must eliminate the efforts of counsel to recover on non-UTPCPL theories.  Neal v. Bavarian Motors, Inc., 882 A.2d 1022, 1031-2 (Pa. Super. 2005)  There “is no statutory authority for awarding attorney[s’] fees for the time spent pursuing non-UTPCPL counts.” Id. at 1032  However, the Superior Court has also recognized the difficulty in differentiating the time spent pursuing UTPCPL claims from non-UTPCPL claims. For instance, it has noted that “where the plaintiffs are proceeding on multiple theories of relief, including under the UTPCPL, it is difficult to parse out the time between the UTPCPL claim and other causes of action.” Boehm, 117 A.3d at 335. In such scenarios, “[m]uch of the time spent in pre-trial litigation would relate to both UTPCPL and common law causes of action.”

Statute of Limitations
The court rejected the argument that the SOL should begin on the date of settlement for the home.  Rather, it held that it was the failure to honor the contract warranty, not necessarily the issuance of the warranty that triggered liability and generated a UTPCPL claim.”  Thus, the trial court explained that it wasn’t until the homeowners and Cutler learned of the water infiltration caused by the construction failures,  Cutler failed to search for and solve the problem, and refused to abide by its warranty that the violation occurred and the claim arose.

Fraud and the UTPCPL
The court rejected that argument that the homeowner had to prove the elements of common law fraud in order to prevail under the catchall provision of the UTPCPL, holding that  it “has established that a plaintiff does not need to prove common law fraud to state a claim under the current catchall provision. See Bennett, 40 A.3d at 154 (“A contrary reading that adheres to the common law fraud requirement for cases arising under the post-amendment catchall provision ignores the textual changes of the 1996 amendment as well as the rules of statutory construction.”). Furthermore, Cutler has not cited any appellate authority to support that subsections 201-2(4)(vii) and 201-2(4)(xiv) require Appellees to prove each of the elements of common law fraud.”
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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)


Friday, October 13, 2017

attorney fees - "prevailing party" - success on procedural issue

H.E. v. Palmer Leadership Learning Partners Charter school – 3d Cir. – October 11, 2017


Held:  Success on a claim for procedural relief can constitute a victory‘on the merits that confer ‘prevailing party’ status.

The Individuals with Disabilities Education Act contains a fee-shifting provision, which, provided that a parent of a child with a disability has emerged as “a prevailing party” in administrative or judicial proceedings challenging violations of the Act, renders the parent eligible for an award of attorneys’ fees. 20 U.S.C. § 1415(i)(3)(B).

The parents in this case obtained a court order vindicating their right to an administrative due process hearing under the Act, but the District Court denied their request for attorneys’ fees, reasoning that they had received only interlocutory procedural relief and, for that reason, were not prevailing parties.

Because that conclusion is contrary to this Court’s decisions in M.R. v. Ridley School District, 868 F.3d 218 (3d Cir. 2017), and Bagby v. Beal, 606 F.2d 411 (3d Cir. 1979), where we explained that success on a claim for procedural relief can constitute “a victory ‘on the merits’ that confer[s] ‘prevailing party’ status,” M.R., 868 F.3d at 226 (quoting Bagby, 606 F.2d at 415), we will reverse the District Court’s denial of attorneys’ fees and remand for proceedings consistent with this opinion.


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