Monday, August 14, 2006

employment - PHRC - settlement agreement - enforcement

Blue Comet Diner v. PHRC - Commonwealth Court - July 28, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/465CD05_7-28-06.pdf

In a 5-2 decision, the court held that a predetermination Settlement Agreement could not be enforced by the Pennsylvania Human Relations Commission without the PHRC having held a hearing and having made a finding that the employer had actually violated the PHRA, 43 P.S. 951 et seq.

The dissents argued that there was a valid regulatory procedure under 16 Pa. Code sec, 42.73 to cover this situation and that the majority's disposition would "adversely impact upon the Commission's ability to resolved discrimination complaints through conciliation and persuasion, " in addition to contravening the stated purposed of the statute. In addition, the dissents objected to the fact that the court had raised this issue sua sponte, arguing that it had been waived by the appellant, who had not raised it in proceedings below, and that the issue was not jurisdictional, citing Mechensky v. PHRC, 578 A.2d 589 (Pa. Cmwlth. 1990) and Reidel v. HRC of Reading, 739 A.2d 121 (Pa. 1999).

Reversed and remanded, http://www.aopc.org/OpPosting/Supreme/out/878mal2006.pdf - September 5, 2007, based on Reidel v. HRC of City of Reading, 739 A.2d 121 (Pa. 1999)

welfare - MH/MR- PFDS waiver

Gray v. DPW - Commonwealth Court - July 28, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/119CD06_7-28-06.pdf

The court upheld the denial of a mother's petition to pay her for her care of her 21-year-old moderately mentally retarded son under the Personal Family Direct Support (PFDS) Waiver Program.

The PFDS program was developed to enhance services to people with mental retardation living at home with their families or in their own homes, provided that, in the case of people over 18, there was no "qualified provider who is not a family member...available" to provide services or only at "an extraorginarily higher cost" than the fee negotiated with a family member.

The court held that there was substantial evidence to support DPW's finding that there were qualified non-family providers in the community capable to giving services to the son, at a reasonable cost.

Mother's claim that the regulation only applied to children under 18 was not considered, because it was only raised for the first time on appeal, and not during administrative proceedings.

custody - relocation - children's best interest

Fuehrer v. Fuehrer - Superior Court - August 2, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a19007_06.pdf

The Superior Court affirmed the grant of primary custody of the parents' two daughters, ages 6 and 9, to mother/appellee but reversed the trial court's allowance of mother's petition for relocation to the Netherlands.

Applying the Gruber factors set out in 583 A.2d 434 (Pa. Super. 1990), the court held that the proposed move to the Netherlands would only benefit the mother's potential love interest with a man she had met in an internet chat room. Although the trial court emphasized the mother's lack of good judgment, it did not consider whether the move would be in the children's best interest, ignoring the father's good relationship with the children and the fact that they were flourishing in their present environment. The court said that children who are very young need frequent contact with the non-custodial parent and that months without physical contact would disrupt the parent-child relationship.

The court contrasted the case of Goldfarb v. Goldfarb, 861 A2d 340, in which mother's petition to relocated to Israel was granted, since family had lived in Israel before, they would be returning to familiar culture, mother had extensive family support there, and 2 of 3 children had been born there.

contracts - forfeiture - subtantial performance

Atlantic LB, Inc. v. Vrbicek - Superior Court - August 4, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a21008_06.pdf

Given the terms of the lease in this case, the commercial tenant was held to be not in default and entitled to exercise an option to buy. The trial court "properly utilized the doctrine of substantal performance...to avoid an unacceptable forfeiture."

The lease had a "time is of the essense" clause, and the tenants were chronically late in paying rent over several extended periods. However, under terms of the lease, "nonpayment alone was insufficient...to constitute an automatic default." The lease had a specific term stating that continued failure to perform for 10 days after written notice of nonperformance was given was a default. In each of two instances, the tenants cured the rent defaults within the 10 days periods and no rent was owing at the time the landlord brought the case.

Although "Pennsylvania law permits forfeiture of a tenant's rights for non-payment of rent...[a] court should not enforce forfeiture 'when the contract has been carried out or its literal fulfillment has been prevented by oversight or uncontrollable circumstances." The "doctrine of substantial performance has been created as an instrument of justice intended to avoid forfeiture because of technical, inadvertent or unimportant questions....The doctrine is 'intended for the protection and relief of those who have faithfully and honestly endeavored to perform their contracts in all material and substantial particulars."

The court stressed that the doctrine was applicable in this case "because of the language of the agreement as written....[T]his decision is not intended to be used indiscriminately as authority in all commercial leases for nonpayment of sums due. To the contrary, we emphasise the importance of careful attention to how these agreements are drafted and to the terms of the agreements as drafted" -- noting again that in this case, default was defined as failure to cure within 10 days of notice of default.

fictitious names - capacity to sue

Stash and Sons v. New Hollard Credit Company - Superior Court - August 2, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s24042_06.pdf

"[T]hose who deal with an unregistered party and accept the benefits of business transactions, having full knowledge of the party's true identify notwithstanding the fictious name, are estopped to deny the party's capacity to sue...If such a person knows with who he is dealing and is not deceived, he cannot assert the lack of capacity to sue under the Fictitious Names Act (FNA)," 54 Pa. C.S. 331.

The FNA says that an entity which has failed to register its fictitious name "shall not be permitted to maintain any action in a tribunal" in Pennsylvania and that, before such an entity can institute a lawsuit, it must register the name and pay a fine. The court held that this provision was penal in nature and should not be extended beyond the purposes for which it was enacted -- a) to protect people giving credit in reliance on the fictitious name and b) to establish the identities of the people operating the business. In this case, it was clear that all of this information was known, thus estopping the appellant/defendant from claiming harm and contesting the appellee/plaintiff's capacity to sue.

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