Davila v. UCBR - Commonwealth Court - June 26, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/255CD07_6-26-07.pdf
A Claimant who quit her job pursuant to requirements of a voluntary retirement program did not have good cause to leave her job, where continuing work was available and she was not in danger of losing her job. The fact that the program required her to retire did not constitute good cause, since she entered the program voluntarily.
Tuesday, June 26, 2007
Monday, June 25, 2007
UC - voluntary quit - childcare
Shaffer v. UCBR - Commonwealth Court - June 25, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/119CD07_6-25-07.pdf
Claimant held not to have proved a necessitous and compelling reason to quit her job when her employer moved its operations, thus increasing her commuting time and causing the loss of her parents' help with childcare. The court said that the claimantdid not "establish that she exhausted all other alternative arrangements, such as making a concerted effort to find another baby-sitter or locate a suitable day care center." (emphasis added)
Her testimony showed that she "investigated only one daycare facility" and "did not offer evidence that she looked in any other childcare arrangements" or that she properly explored alternative arrangements for her old son's before and after school care. (emphasis in original). The claimant "did not establish that she made a concerted effort to find alternative childcare arrangements." (emphasis added)
http://www.courts.state.pa.us/OpPosting/CWealth/out/119CD07_6-25-07.pdf
Claimant held not to have proved a necessitous and compelling reason to quit her job when her employer moved its operations, thus increasing her commuting time and causing the loss of her parents' help with childcare. The court said that the claimantdid not "establish that she exhausted all other alternative arrangements, such as making a concerted effort to find another baby-sitter or locate a suitable day care center." (emphasis added)
Her testimony showed that she "investigated only one daycare facility" and "did not offer evidence that she looked in any other childcare arrangements" or that she properly explored alternative arrangements for her old son's before and after school care. (emphasis in original). The claimant "did not establish that she made a concerted effort to find alternative childcare arrangements." (emphasis added)
Friday, June 22, 2007
consumer - floating forum selection clause
Susquehanna Patriot Commcl. Leasing Co. v. Holper Industries, Inc. - Super. Ct. - June 12, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a24021_06.pdf
A "floating" forum selection clause (FFSC) in contracts concerning equipment leases was held to be enforceable under Pennsylvania law., under the general principles set out in Patriot Commcl. Leasing Co. v. Kremer Restaurant, 915 A2d 647 (Pa. Super. 2006) http://www.courts.state.pa.us/OpPosting/Superior/out/A24012_06.pdf posted and discussed in the PLAN Updates in January 2007.
The equipment was advertised by the lessor, NorVergence, as providing 30%-60% savings to the lessees, through the use of a specific device. In fact, the device was not capable of providing any reduced savings and was worth a fraction of its selling price. Immediately after the lease-contracts were consummated, NorVergence assigned them to 3rd party finance companies, including appellant. The original lease said that the money on the rental agreements was owed regardless of whether NorVergence provided the promised services. After collecting millions on the assignments, NorVergence declared bankruptcy. The lessees stopped making payments to the assignees, who then sued in Pennsylvania on leases executed by small business entities in New Jersey and Maryland.
After setting out the split of authority regarding the enforceability of the FFSC and the difficulty in disassociating the "obvious and egregious fraud" used to procure these leases from the analysis of whether to uphold the FFSC, the court upheld them in these cases, noting the "in the interest of judicial uniformity, all cases must be analyzed in accordance with overriding principles of law that cannot depend upon facts not implicated in the application on those principles. We must confine ourselves accordingly."
The court in Patriot Commercial Leasing held that where the parties have freely agreed to a forum selection clause, which was not unreasonable at the time, it will only be held unreasonable where its enforcement, under all of the circumstances, would seriously impair a party's ability to pursue its case. Here, the defendants are in states which border Pennsylvania; and many of them have the same attorney; many of their claims can be heard in the same proceeding.
There has been "nationwide litigation, including litigation by various state attorneys general and the FTC about this issue, concerning leases negotiated by NorVergence, which assigned various leases for telecommunications equipment to Appellant Susquehanna PCL. See, http://www.attorneygeneral.gov/consumers.aspx? and http://www.ftc.gov/opa/2005/07/norvergence.shtm
http://www.courts.state.pa.us/OpPosting/Superior/out/a24021_06.pdf
A "floating" forum selection clause (FFSC) in contracts concerning equipment leases was held to be enforceable under Pennsylvania law., under the general principles set out in Patriot Commcl. Leasing Co. v. Kremer Restaurant, 915 A2d 647 (Pa. Super. 2006) http://www.courts.state.pa.us/OpPosting/Superior/out/A24012_06.pdf posted and discussed in the PLAN Updates in January 2007.
The equipment was advertised by the lessor, NorVergence, as providing 30%-60% savings to the lessees, through the use of a specific device. In fact, the device was not capable of providing any reduced savings and was worth a fraction of its selling price. Immediately after the lease-contracts were consummated, NorVergence assigned them to 3rd party finance companies, including appellant. The original lease said that the money on the rental agreements was owed regardless of whether NorVergence provided the promised services. After collecting millions on the assignments, NorVergence declared bankruptcy. The lessees stopped making payments to the assignees, who then sued in Pennsylvania on leases executed by small business entities in New Jersey and Maryland.
After setting out the split of authority regarding the enforceability of the FFSC and the difficulty in disassociating the "obvious and egregious fraud" used to procure these leases from the analysis of whether to uphold the FFSC, the court upheld them in these cases, noting the "in the interest of judicial uniformity, all cases must be analyzed in accordance with overriding principles of law that cannot depend upon facts not implicated in the application on those principles. We must confine ourselves accordingly."
The court in Patriot Commercial Leasing held that where the parties have freely agreed to a forum selection clause, which was not unreasonable at the time, it will only be held unreasonable where its enforcement, under all of the circumstances, would seriously impair a party's ability to pursue its case. Here, the defendants are in states which border Pennsylvania; and many of them have the same attorney; many of their claims can be heard in the same proceeding.
There has been "nationwide litigation, including litigation by various state attorneys general and the FTC about this issue, concerning leases negotiated by NorVergence, which assigned various leases for telecommunications equipment to Appellant Susquehanna PCL. See, http://www.attorneygeneral.gov/consumers.aspx? and http://www.ftc.gov/opa/2005/07/norvergence.shtm
Tuesday, June 19, 2007
real property - tax sale - notice - new sale
Willard v. Delaward Co. Tax Claim Bureau - April 276, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/1319CD06_4-26-07.pdf
Record owners of property listed but then removed from one judicial tax sale, then relisted for another sale, must get new , separate notice of the second sale. The second sale is not merely a continuation of the original sale. There is no provision in the Real Estate Tax Sale Law for the concept of a "continued" judicial sale.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1319CD06_4-26-07.pdf
Record owners of property listed but then removed from one judicial tax sale, then relisted for another sale, must get new , separate notice of the second sale. The second sale is not merely a continuation of the original sale. There is no provision in the Real Estate Tax Sale Law for the concept of a "continued" judicial sale.
real estate - tax assessment - appeal - base year value v. current market value
Daugherty v. County of Allegheny - Commonwealth Court - March 27, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/1777CD06_3-27-07.pdf
County Board of Assessment lacked the statutory authority to limit assessment appeals to challenge to base year market value, rather than challenge that assessment exceeds current market value.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1777CD06_3-27-07.pdf
County Board of Assessment lacked the statutory authority to limit assessment appeals to challenge to base year market value, rather than challenge that assessment exceeds current market value.
mortgage foreclosure - predatory loan - arbitration - limitation of consumer judicial remedies
Salley v. Option One Mortgage Corp. - Pa. Supreme Court - May 31, 2007 majority
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-34-2006mo.pdf dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-34-2006do.pdf
In a case arising from a federal court's certification of the question to the state supreme court, the state court held that an arbitration agreement consummated in connection with a residential mortgage loan which limited a consumer's judicial remedies related to foreclosure is not presumptively unconscionable. The exceptions from arbitration involved creditor remedies exclusively, including: foreclosure; self-help remedies (such as repossession); and ancillary remedies such as sequestration, attachment, replevin, and garnishment.
The federal suit arose in the context of a consumer suit "asserting violation of various mortgage-regulation and consumer-protection laws by a sub-prime lender, i.e., a financial institution affording higher-interest loans to consumer with impaired credit histories."
The court apparently accepted the holding in Harris v. Green Tree Financial Corp., 183 F.3d 173 (3d Cir. 1999), interpreting Pa. law to be that the mere fact that the lender retains the option to litigate some issues in court, while the consumer must arbitrate all claims does not make the arbitration agreement unenforceable.
Although the court did not say that it was overruling the decision, only that it "swept too broadly," the court apparently rejected Lytle v. CitiFinancial Services, Inc. 810 A.2d 643 (Pa. Super. 2002), which had held that "under Pennsylvania law, the reservation by [a financial institution] of access to the courts for itself to the exclusion of the consumer creates a presumption of unconscionability."
The case also involved the Federal Arbitration Act, 9 USC 2, which expresses a liberal federal policy favoring arbitration agreements. The FAA was meant to "overcome state legislative and judicial efforts to undermine the enforceability of arbitration agreements, inter alia, by establishing a substantive rule of federal law placing such agreements upon the same footing as other contracts." In Prima Paint Corp v. Flood & Conklin Mfg. Co., 388 US 395, 404 (1967) and Buckeye Check Cashing, Inc. v. Cardegna, 546 US 440 (2006), the Supreme Court "has determined that a challenge to the validity of a contract as a whole, and not specificlaly to an arbitration clause, must be presented to the arbitrator and not the courts....The courts may consider, in the first instnace, only those challenges that are directed solely to the arbitration component itself."
The court rejected the argument about the effect of a split-forum, that is, the consumer having "to litigate nearly identical statutory claims twice, one in state court against he foreclosing entity (to whom the loan has been sold/assigned in a secondary market), and a second time in an arbitral forum against....the lender."
Thus, it said that "although this Court is cognizant of the phenomenon of predatory lending and its deleterious effects, because those asserted aspects of this case go to not only the arbitration agreement but also to the underlying merits of the parties' larger dispute, we believe that any relevant contentions in this regard are for an arbitrator in the first instance, under the rationale set forth in the Prima Paint/Buckeye line of decisions."
However, the court did not entirely foreclose the consumer's arguments, noting that it had "taken care...not to exclude the possibility that the arbitration agreement might otherwise be deemed to be unconscionable under Pennsylvania law if [the plaintff's] predatory lending claims are proven, since we have little doubt concerning the unreasonableness of such an adhesion agreement when used as a tool of established predatory lending."
The court also noted "a substantial level of procedural unconscionability present in the sub-prime lending industry, as it employs adhesion contracts and, by design, targets those with few financial choices. Procedural unconscionability would be particularly high in the present case if various of the facts asserted by [the plaintiff], such as lender non-disclosure and dishonesty in the application and settlement process, are true. Furthermore, [the lender] does not deny that its agreement with [the consumer] was one of adhesion. Nevertheless, merely because a contract is one of adhesion does not render it unconscionable and unenforceable as a matter of law."
The court relied heavily on a New Jersey case, Delta Funding Corp. v. Harris, 912 A.2d 104 (NJ 2006)
The consumer-plaintiff waived several important arguments presented by his amici, including whether the costs of arbitration would be prohibitively expensive.
Justice Baldwin, dissenting, argued that a) the majority would have an arbitrator rather than the court decide the important question of unconscionability, and b) that the consumer's was attacking the arbitration clause, not the contract as a whole. She suggested that the court follow contrary decisions from Wisconsin, Tennessee, West Virginia and California in finding that "one-sided arbitration agreements are unconscionable and void."
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-34-2006mo.pdf dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-34-2006do.pdf
In a case arising from a federal court's certification of the question to the state supreme court, the state court held that an arbitration agreement consummated in connection with a residential mortgage loan which limited a consumer's judicial remedies related to foreclosure is not presumptively unconscionable. The exceptions from arbitration involved creditor remedies exclusively, including: foreclosure; self-help remedies (such as repossession); and ancillary remedies such as sequestration, attachment, replevin, and garnishment.
The federal suit arose in the context of a consumer suit "asserting violation of various mortgage-regulation and consumer-protection laws by a sub-prime lender, i.e., a financial institution affording higher-interest loans to consumer with impaired credit histories."
The court apparently accepted the holding in Harris v. Green Tree Financial Corp., 183 F.3d 173 (3d Cir. 1999), interpreting Pa. law to be that the mere fact that the lender retains the option to litigate some issues in court, while the consumer must arbitrate all claims does not make the arbitration agreement unenforceable.
Although the court did not say that it was overruling the decision, only that it "swept too broadly," the court apparently rejected Lytle v. CitiFinancial Services, Inc. 810 A.2d 643 (Pa. Super. 2002), which had held that "under Pennsylvania law, the reservation by [a financial institution] of access to the courts for itself to the exclusion of the consumer creates a presumption of unconscionability."
The case also involved the Federal Arbitration Act, 9 USC 2, which expresses a liberal federal policy favoring arbitration agreements. The FAA was meant to "overcome state legislative and judicial efforts to undermine the enforceability of arbitration agreements, inter alia, by establishing a substantive rule of federal law placing such agreements upon the same footing as other contracts." In Prima Paint Corp v. Flood & Conklin Mfg. Co., 388 US 395, 404 (1967) and Buckeye Check Cashing, Inc. v. Cardegna, 546 US 440 (2006), the Supreme Court "has determined that a challenge to the validity of a contract as a whole, and not specificlaly to an arbitration clause, must be presented to the arbitrator and not the courts....The courts may consider, in the first instnace, only those challenges that are directed solely to the arbitration component itself."
The court rejected the argument about the effect of a split-forum, that is, the consumer having "to litigate nearly identical statutory claims twice, one in state court against he foreclosing entity (to whom the loan has been sold/assigned in a secondary market), and a second time in an arbitral forum against....the lender."
Thus, it said that "although this Court is cognizant of the phenomenon of predatory lending and its deleterious effects, because those asserted aspects of this case go to not only the arbitration agreement but also to the underlying merits of the parties' larger dispute, we believe that any relevant contentions in this regard are for an arbitrator in the first instance, under the rationale set forth in the Prima Paint/Buckeye line of decisions."
However, the court did not entirely foreclose the consumer's arguments, noting that it had "taken care...not to exclude the possibility that the arbitration agreement might otherwise be deemed to be unconscionable under Pennsylvania law if [the plaintff's] predatory lending claims are proven, since we have little doubt concerning the unreasonableness of such an adhesion agreement when used as a tool of established predatory lending."
The court also noted "a substantial level of procedural unconscionability present in the sub-prime lending industry, as it employs adhesion contracts and, by design, targets those with few financial choices. Procedural unconscionability would be particularly high in the present case if various of the facts asserted by [the plaintiff], such as lender non-disclosure and dishonesty in the application and settlement process, are true. Furthermore, [the lender] does not deny that its agreement with [the consumer] was one of adhesion. Nevertheless, merely because a contract is one of adhesion does not render it unconscionable and unenforceable as a matter of law."
The court relied heavily on a New Jersey case, Delta Funding Corp. v. Harris, 912 A.2d 104 (NJ 2006)
The consumer-plaintiff waived several important arguments presented by his amici, including whether the costs of arbitration would be prohibitively expensive.
Justice Baldwin, dissenting, argued that a) the majority would have an arbitrator rather than the court decide the important question of unconscionability, and b) that the consumer's was attacking the arbitration clause, not the contract as a whole. She suggested that the court follow contrary decisions from Wisconsin, Tennessee, West Virginia and California in finding that "one-sided arbitration agreements are unconscionable and void."
Wednesday, June 13, 2007
Truth-in-Lending - "tolerance for accuracy" not an affirmative defense
Sterten v. Option One Mortgage Corp. - ED Pa. - March 22, 2007
http://www.paed.uscourts.gov/documents/opinions/07d0409p.pdf
The "tolerance for accuracy" provision of the Truth in Lending Act, 15 USC 1605(f), is not an affirmative defense under Rule 8(c) of the Federal Rules of Civil Procedure.
Where the creditor made it clear in the pleadings that the discrepancy in the finance charge ($57) came within the $100 limit of sec. 1605(f) of the TILA, the notice policies of the federal rules was satisfied. Section 1605(f) "defines the parameters of an element of the TILA violation. It does not create a defense. Only if the total of the improper finance charges exceeds $100 is there a violation." Where as here the discrepancy was less thatn $100, there is no statutory violation.
The federal rules "reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits."
http://www.paed.uscourts.gov/documents/opinions/07d0409p.pdf
The "tolerance for accuracy" provision of the Truth in Lending Act, 15 USC 1605(f), is not an affirmative defense under Rule 8(c) of the Federal Rules of Civil Procedure.
Where the creditor made it clear in the pleadings that the discrepancy in the finance charge ($57) came within the $100 limit of sec. 1605(f) of the TILA, the notice policies of the federal rules was satisfied. Section 1605(f) "defines the parameters of an element of the TILA violation. It does not create a defense. Only if the total of the improper finance charges exceeds $100 is there a violation." Where as here the discrepancy was less thatn $100, there is no statutory violation.
The federal rules "reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits."
Tuesday, June 12, 2007
civil procedure - prothonotary - duty to accept pleadings
Sollenberger v. Lee, Prothonotary - Commonwealth Court - June 8, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/82CD07_6-8-07.pdf
"The prothonorary is not an administrative officer who has the discretion to interpret or implement rules or statutes....Therefore if documents tendered for filing are proper on their face and in conformity with rules of court, a prothonotary does not have the discretion to refuse to enter them...."
http://www.courts.state.pa.us/OpPosting/CWealth/out/82CD07_6-8-07.pdf
"The prothonorary is not an administrative officer who has the discretion to interpret or implement rules or statutes....Therefore if documents tendered for filing are proper on their face and in conformity with rules of court, a prothonotary does not have the discretion to refuse to enter them...."
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