McKenna v. UCBR - Cmwlth. Court - September 29, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/797CD09_9-29-09.pdf
The court held that the claimant did not satisfy the requirement of state and federal law -- 26 U.S.C. §3304 Note, and 43 P.S. §813 -- that his base-year earnings be equal to or greater than 1.5 times his high-quarter earnings.
Claimant's high quarter earnings included some that he earned in the previous quarter. They also included a bonus payment. Had these not been included in his high quarter, he would have been eligible for EUC benefits.
The court rejected his argument that these wages be allocated to the quarter in which they were earned rather than paid.
"This Court is unable to agree with Claimant’s desired allocation of his wages. The Act provides that eligibility for EUC benefits must be determined by state law which implements Section 202(a)(5) of the Federal-State Extended Unemployment Compensation Act of 1970. That section of the Law is Section 403-A which states a claimant must have wages equal to or greater than one and one–half times the highest quarterly wage. Section 4(x) of the Law, 43 P.S. §753(x), defines “wages” as “remuneration paid.”
In Pollard v. Unemployment Compensation Board of Review, 454 A.2d 1166 (Pa. Cmwlth. 1983), this Court explained when wages are considered paid. The Board ruled that William J. Pollard (Pollard) was ineligible for benefits because his wages during the base year were at least $439.00 less than the qualifying amount. Pollard reported that he received $889.53 in additional wages which were not received until after the base year but were attributed to work performed in the fourth quarter of the base year. Pollard argued that the $889.53 should be allocated to the fourth quarter when it was earned. This Court did not agree on the basis that wages must be included in the quarter in which the employee received them not when they were earned. Pollard, 454 A.2d at 1167.
Here, even though Claimant may have earned the $3,200 in the third quarter, it was not paid to him until the fourth quarter. Consequently, this amount must be allocated to fourth quarter wages. Congress has set forth the framework under which EUC benefits are administered and has given states some authority with respect to eligibility. Our General Assembly established the one and one-half times the highest quarter for total wages and has defined “wages.” This Court has determined that wages count when they are paid not when they are earned. The Board did not err."
Tuesday, September 29, 2009
admin. law - findings - sufficiency - conclusions follow from facts
Pennsylvania Bankers Assn. v. Dept. of Banking - September 28, 2009 - Cmwlth. Court
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/42MD05_9-28-09.pdf
“A reviewing court has the discretion to determine whether the findings that accompany an administrative agency adjudication are sufficient” and the “findings need only be enough to enable the Court to determine the questions and ensure that the conclusions follow from the facts.” Krebs Chrysler-Plymouth, Inc. v. State Bd. of Vehicle Mfrs., Dealers & Salespersons, 655 A.2d 190, 193 (Pa. Cmwlth. 1995).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/42MD05_9-28-09.pdf
“A reviewing court has the discretion to determine whether the findings that accompany an administrative agency adjudication are sufficient” and the “findings need only be enough to enable the Court to determine the questions and ensure that the conclusions follow from the facts.” Krebs Chrysler-Plymouth, Inc. v. State Bd. of Vehicle Mfrs., Dealers & Salespersons, 655 A.2d 190, 193 (Pa. Cmwlth. 1995).
Saturday, September 19, 2009
drivers license - seizure disorder - conclusive v. rebuttable presumption
Peachey v. PennDOT - Cmwlth. Court - August 13, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2251CD08_8-13-09.pdf
Following DOT v. Clayton, 684 A.2d 1060 (Pa. 1996), the court rejected the irrebutable presumption created by 75 Pa. C.S. 1519(c) and 67 Pa. Code 83.4 that a person who has had a seizure is not competent to drive until s/he has been free from seizures for a least 6 months.
In this case, a doctor wrote and testified that the driver had not been diagnosed with episodes of loss of consciousness that would interfere with the safe operation of a car, and that he did not think it was appropriate to apply the 6-month rule to this particular driver.
As the court had done in Clayton, the court here rejected DOT's arguments that driving in a right and not a privilege and rejected the irrebuttable presumption created by the regulation, noting that procedural due process required a "meaningful hearing" which included consideration of all evidence essential to a decision about a licensee's ability to drive safely. " '[S]ince the competency to drive is the paramount factor behind the instant regulations, any hearing which eliminates consideration of that very factor is violative of procedural due process.' "
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2251CD08_8-13-09.pdf
Following DOT v. Clayton, 684 A.2d 1060 (Pa. 1996), the court rejected the irrebutable presumption created by 75 Pa. C.S. 1519(c) and 67 Pa. Code 83.4 that a person who has had a seizure is not competent to drive until s/he has been free from seizures for a least 6 months.
In this case, a doctor wrote and testified that the driver had not been diagnosed with episodes of loss of consciousness that would interfere with the safe operation of a car, and that he did not think it was appropriate to apply the 6-month rule to this particular driver.
As the court had done in Clayton, the court here rejected DOT's arguments that driving in a right and not a privilege and rejected the irrebuttable presumption created by the regulation, noting that procedural due process required a "meaningful hearing" which included consideration of all evidence essential to a decision about a licensee's ability to drive safely. " '[S]ince the competency to drive is the paramount factor behind the instant regulations, any hearing which eliminates consideration of that very factor is violative of procedural due process.' "
Friday, September 18, 2009
child abuse - expungement - credibility - burden/standard of proof
Dauphin Co. CYS v. DPW - September 18, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/184CD09_9-18-09.pdf
The court affirmed the DPW order directing expungement of an indicated report of abuse. The case involved the alleged sexual abuse of a 16 year-old female student by her male driver education teacher. The case was decided (both by the ALJ and the Secretary, on appeal) based on the transcript in the related criminal case, in which the alleged abuser was found to be not guilty.
Credibility
The ALJ found the alleged victim to be credible. The DPW Secretary reversed that finding. The court rejected CYS's argument on this issue, noting the the "Supreme Court has held that the Secretary of Public Welfare or her designee is the ultimate fact finder in expungement proceedings, with the authority to make credibility determinations. C.K. v. DPW, 869 A.2d 48, 57 n.9 (Pa. Cmwlth. 2005) (citing R. v. DPW, 535 Pa. 440, 446, 636 A.2d 142, 154 (1994)). Accordingly, the County’s argument that the Secretary lacked authority to reverse the ALJ’s credibility determinations lacks merit. Further, the parties agreed to have the Bureau decide J.F.’s appeal based exclusively on the transcript of the related criminal trial. The remand hearing requested by the County would give it the proverbial second bite at the apple."
Burden/Standard of proof
The court also affirmed the finding that CYS failed to meet its burden of proof, noting that "the numerous inconsistencies in [alleged victim's] testimony and the evidence presented by [the alleged abuser] support the Secretary’s conclusion that [the alleged victim's] testimony was not credible. In an expungement case, the County bears the burden of proving that the actions of the perpetrator constitute child abuse within the meaning of the statute. C.F. v. DPW, 804 A.2d 755, 757 (Pa. Cmwlth. 2002).
"For the County to succeed, it was required to present “evidence which so preponderates in favor of a conclusion that it outweighs, in the mind of the factfinder, any inconsistent evidence and reasonable inferences drawn therefrom.” C.K., 869 A.2d at 52 n.6." The court noted that the alleged victim's testimony at the preliminary hearing and trial was "laced with inconsistencies involving, inter alia, the identity of the perpetrator, the location and timing of the alleged assault and whether her attacker ejaculated."
"In sum, the Secretary’s conclusion that [the alleged victim's] testimony lacked credibility supported her conclusion that the County failed to meet its burden of proof."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/184CD09_9-18-09.pdf
The court affirmed the DPW order directing expungement of an indicated report of abuse. The case involved the alleged sexual abuse of a 16 year-old female student by her male driver education teacher. The case was decided (both by the ALJ and the Secretary, on appeal) based on the transcript in the related criminal case, in which the alleged abuser was found to be not guilty.
Credibility
The ALJ found the alleged victim to be credible. The DPW Secretary reversed that finding. The court rejected CYS's argument on this issue, noting the the "Supreme Court has held that the Secretary of Public Welfare or her designee is the ultimate fact finder in expungement proceedings, with the authority to make credibility determinations. C.K. v. DPW, 869 A.2d 48, 57 n.9 (Pa. Cmwlth. 2005) (citing R. v. DPW, 535 Pa. 440, 446, 636 A.2d 142, 154 (1994)). Accordingly, the County’s argument that the Secretary lacked authority to reverse the ALJ’s credibility determinations lacks merit. Further, the parties agreed to have the Bureau decide J.F.’s appeal based exclusively on the transcript of the related criminal trial. The remand hearing requested by the County would give it the proverbial second bite at the apple."
Burden/Standard of proof
The court also affirmed the finding that CYS failed to meet its burden of proof, noting that "the numerous inconsistencies in [alleged victim's] testimony and the evidence presented by [the alleged abuser] support the Secretary’s conclusion that [the alleged victim's] testimony was not credible. In an expungement case, the County bears the burden of proving that the actions of the perpetrator constitute child abuse within the meaning of the statute. C.F. v. DPW, 804 A.2d 755, 757 (Pa. Cmwlth. 2002).
"For the County to succeed, it was required to present “evidence which so preponderates in favor of a conclusion that it outweighs, in the mind of the factfinder, any inconsistent evidence and reasonable inferences drawn therefrom.” C.K., 869 A.2d at 52 n.6." The court noted that the alleged victim's testimony at the preliminary hearing and trial was "laced with inconsistencies involving, inter alia, the identity of the perpetrator, the location and timing of the alleged assault and whether her attacker ejaculated."
"In sum, the Secretary’s conclusion that [the alleged victim's] testimony lacked credibility supported her conclusion that the County failed to meet its burden of proof."
Thursday, September 17, 2009
MR waiver services - proof of MR before age 21 - post-21 evidence
Heraty v. DPW - Cmwlth. Court - September 16, 2009 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/326CD09_9-16-09.pdf
The court remanded this case, in which the Petitioner requested mental retardation (MR) waiver-funded services. Petitioner is a 53 year old woman who has been registered with and receiving services from the county MR office for over 20 years. She sought additional funding, known as waiver funding due to the alleged severity of her mental retardation1 because her elderly mother, with whom she lives, will be unable to provide for her long-term care. Petitioner suffers from autism, is non-verbal and deaf, can use only rudimentary sign language and, aside from simple matters such as dressing and feeding herself, is completely dependent upon her mother for her care.
In order to qualify for the waiver services, Petitioner had to show that she was mentally retarded before her 22nd birthday, 55 Pa. Code §6210.63(3), which requires that "It has been certified that documentation to substantiate that the applicant’s or recipient’s conditions were manifest before the applicant’s or recipient’s 22nd birthday.
The ALJ rejected Petitioners application based solely on an evaluation in 1976 when she was 21, which showed that she had a partial IQ score of 98, making her not mentally retarded under the standards contained in 55 Pa. Code §4210.101a, a policy statement that lists IQ as one of various factors to consider when making a diagnosis of mental retardation.
By contrast, a 2008 psychological evaluation showed that she could not be adequately assessed due to her disabilities and, instead used adaptive functioning tests that could be substituted for IQ tests. On these tests, Petitioner scored at a one year, nine month level for communication, a six year, six month level for daily living, and a one year, nine month level for socialization. According to these tests, her composite age equivalent is three years, four months, which supports a classification of severe mental retardation, and that her disabilities have been present since childhood. The clinician’s report also stated that Petitioner’s developmental delay was present before 22 years of age.
Based on its opinion in Lycoming-Clinton County MH/MR Program v. DPW, 884 A.2d 382 (Pa. Cmwlth. 2005), the court held that it was error for the ALJ to rely solely on the 1976 IQ test, noting that "55 Pa. Code §4210.101(a) states that while an IQ score can be used, it is not always a reliable indicator of mental retardation, and other factors must also be considered where it does not accurately reflect the person’s real-life functioning abilities. Lycoming-Clinton County, 884 A.2d at 384-85...." [T]o rely solely on a full scale IQ score of 70 or below to diagnose MR [mental retardation] would be inconsistent with the statutory definition of MR....Notably, the statutory definition of MR does not require a base IQ score to diagnose an individual as mentally retarded and, in fact, does not mention IQ.... To determine if Petitioner is eligible for mental retardation waiver funded services, it is necessary for DPW to consider whether she is impaired in her maturation, learning and social adjustment, not to take an IQ score, let alone a partial IQ score, and automatically categorize her based upon that score."
All that the relevant regulation, 55 Pa. Code §6210.63(3), "requires is that 'documentation' is presented that “substantiates” that Petitioner’s mental retardation was manifest” before her 22nd birthday, not that the evaluation that resulted in the documentation occurred before her 22nd birthday."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/326CD09_9-16-09.pdf
The court remanded this case, in which the Petitioner requested mental retardation (MR) waiver-funded services. Petitioner is a 53 year old woman who has been registered with and receiving services from the county MR office for over 20 years. She sought additional funding, known as waiver funding due to the alleged severity of her mental retardation1 because her elderly mother, with whom she lives, will be unable to provide for her long-term care. Petitioner suffers from autism, is non-verbal and deaf, can use only rudimentary sign language and, aside from simple matters such as dressing and feeding herself, is completely dependent upon her mother for her care.
In order to qualify for the waiver services, Petitioner had to show that she was mentally retarded before her 22nd birthday, 55 Pa. Code §6210.63(3), which requires that "It has been certified that documentation to substantiate that the applicant’s or recipient’s conditions were manifest before the applicant’s or recipient’s 22nd birthday.
The ALJ rejected Petitioners application based solely on an evaluation in 1976 when she was 21, which showed that she had a partial IQ score of 98, making her not mentally retarded under the standards contained in 55 Pa. Code §4210.101a, a policy statement that lists IQ as one of various factors to consider when making a diagnosis of mental retardation.
By contrast, a 2008 psychological evaluation showed that she could not be adequately assessed due to her disabilities and, instead used adaptive functioning tests that could be substituted for IQ tests. On these tests, Petitioner scored at a one year, nine month level for communication, a six year, six month level for daily living, and a one year, nine month level for socialization. According to these tests, her composite age equivalent is three years, four months, which supports a classification of severe mental retardation, and that her disabilities have been present since childhood. The clinician’s report also stated that Petitioner’s developmental delay was present before 22 years of age.
Based on its opinion in Lycoming-Clinton County MH/MR Program v. DPW, 884 A.2d 382 (Pa. Cmwlth. 2005), the court held that it was error for the ALJ to rely solely on the 1976 IQ test, noting that "55 Pa. Code §4210.101(a) states that while an IQ score can be used, it is not always a reliable indicator of mental retardation, and other factors must also be considered where it does not accurately reflect the person’s real-life functioning abilities. Lycoming-Clinton County, 884 A.2d at 384-85...." [T]o rely solely on a full scale IQ score of 70 or below to diagnose MR [mental retardation] would be inconsistent with the statutory definition of MR....Notably, the statutory definition of MR does not require a base IQ score to diagnose an individual as mentally retarded and, in fact, does not mention IQ.... To determine if Petitioner is eligible for mental retardation waiver funded services, it is necessary for DPW to consider whether she is impaired in her maturation, learning and social adjustment, not to take an IQ score, let alone a partial IQ score, and automatically categorize her based upon that score."
All that the relevant regulation, 55 Pa. Code §6210.63(3), "requires is that 'documentation' is presented that “substantiates” that Petitioner’s mental retardation was manifest” before her 22nd birthday, not that the evaluation that resulted in the documentation occurred before her 22nd birthday."
Tuesday, September 15, 2009
federal courts - civil rights - attorney fees - award to defendant
McCarthy v. Darman - ED Pa. - September 9, 2009
http://www.paed.uscourts.gov/documents/opinions/09D1126P.pdf
42 U.S.C. § 1988 allows a court to award attorneys’ fees to the prevailing party in a § 1983 case. Defendants in a § 1983 action are eligible to recover attorneys’ fees under § 1988, but a prevailing defendant must meet a more stringent standard than a prevailing plaintiff in order to do so.... A prevailing defendant should only be awarded attorneys’ fees if the plaintiff’s claim was “frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so.”
The Third Circuit has articulated several factors that should be considered when determining whether a claim was frivolous, including “whether the plaintiff established a prima facie case, the defendant offered to settle, the trial court dismissed the case prior to trial or the case continued until a trial on the merits.” In addition, the court should consider whether the issues litigated were ones of first impression, and what the real risk of the alleged injury was to the plaintiff.
Each case must be decided individually, however, and these factors are “guidelines, not strict rules.” “[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.”
In this case, the court held that plaintiff's substantive due process claims were frivolous but that his procedure due process claims were not, so the defendant's claim for fees was denied.
http://www.paed.uscourts.gov/documents/opinions/09D1126P.pdf
42 U.S.C. § 1988 allows a court to award attorneys’ fees to the prevailing party in a § 1983 case. Defendants in a § 1983 action are eligible to recover attorneys’ fees under § 1988, but a prevailing defendant must meet a more stringent standard than a prevailing plaintiff in order to do so.... A prevailing defendant should only be awarded attorneys’ fees if the plaintiff’s claim was “frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so.”
The Third Circuit has articulated several factors that should be considered when determining whether a claim was frivolous, including “whether the plaintiff established a prima facie case, the defendant offered to settle, the trial court dismissed the case prior to trial or the case continued until a trial on the merits.” In addition, the court should consider whether the issues litigated were ones of first impression, and what the real risk of the alleged injury was to the plaintiff.
Each case must be decided individually, however, and these factors are “guidelines, not strict rules.” “[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.”
In this case, the court held that plaintiff's substantive due process claims were frivolous but that his procedure due process claims were not, so the defendant's claim for fees was denied.
mortgage foreclosure - standing - post-complaint assignment
US Bank v. Mallory - Superior Court - September 14, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15045_09.pdf
The Superior Court denied the homeowner's petition to open/strike a default judgment. The Petition to Strike relied on the fact that, at the time the complaint was filed, the mortgage had not been assigned to plaintiff but rather was alleged to be in the process of being assigned. The homeowner claimed that this failure was in violation of Pa. RCP 1147(a)(1), which requires a statment of the date of assignment and the place where it is recorded, and of Pa. R.C.P. 1019(i), which requires that, where claims are based a writing, the writing must be attached.
Plaintiff filed its foreclosure complaint on November 14, 2007. The mortgage was not assigned to plaintiff untilDecember 28, 2007, and was not recorded until January 15, 2008 -- after a default judgment had already been entered against the homeowner, for failure to respond to the complaint.
Petition to Strike
The court concluded that "there was not a fatal defect apparent on the record" and that the plaintiff "sufficiently set forth the existence and date of the mortgage," the fact that plaintiff was the mortgage holder and "was now the legal owner of the mortgage, thereby indicating it had assumed all the rights and remedies related to the mortgage, and the fact [plaintiff] was seeking to formalize the assignment....Simply put, [plaintiff's] complaint sufficiently put [the homeowner] on notice of [plaintiff's] claim of interest with regard to the subject mortgage. Contrary to [the homeowner's] suggestion, we conclude that Pa.R.C.P. 1147(a)(1) does not require that a party have a recorded assignment as a prerequisite to filing a complaint in mortgage foreclosure."
Concerning the failure to attach the assignment to the complaint, as required by Pa. R.C.P. 1019(i), the court said that the "averment that [plaintiff] was in the process of formalizing the assignment sufficiently explained why, under Pa.R.C.P. 1019, a copy of the written assignment was not attached to the complaint. Thereafter, as [plaintiff] explained in the complaint that it was in the process of doing, the written assignment was executed on December 28, 2007, and recorded on January 15, 2008. We are convinced that [plaintiff] adequately met the requirements of Pa.R.C.P. 1147 and 1019, and we note that, to the extent [the homeowner] believes [plaintiff] was not the legal owner of the mortgage, who was in the process of formalizing the assignment, then the proper recourse would have been to go beyond the face of the record and seek to open the judgment on this basis."
The court squarely rejected the argument that "the trial court should have granted [the homeowner's] to strike since it was apparent on the face of the record that [plaintiff] did not have standing to file a complaint in mortgage foreclosure against [the homeowner]. The “crux” of [homeowner's] argument is that, before [plaintiff] could file a complaint in mortgage foreclosure, [plaintiff] was required to have executed and recorded a written assignment..., thereby indicating it was the real party in interest. We reject this argument....Simply put, contrary to [the homeowner's] suggestion, the recording of an assignment of the mortgage was not a prerequisite to plaintiff/assignee having standing to seek enforcement of the mortgage via a mortgage foreclosure action."
Petition to Open
The court noted the the homeowner had "averred meritorious defenses, namely, that she lacked a security interest in the property due to her rescission of the loan, the loan should not be enforced since it is a predatory loan, the loan was void due to the broker’s violation of Pennsylvania’s Credit Services Act, and the loan violated Pennsylvania’s consumer protection statute."
However, it did not consider these defenses, holding that the homeowner's petition to open filed 82 days after the entry of judgment was not "promptly filed" and that she did not have a valid excuse for not filing earlier, rejecting her claim of lack of sophistication and belated awareness of potentially valid defenses. The court said that "this is a case where [the homeowner], despite numerous notices to secure counsel, simply did not do so until approximately three months after the complaint was filed and six weeks after the default judgment was entered against her. The fact [she]may be unsophisticated in legal and financial matters is all the more reason she should have heeded the notices to secure legal counsel at once, and her deliberate decision not to defend does not provide a reasonable explanation or excuse necessary to open the default judgment." Thus, "even assuming [she] pleaded a meritorious defense, the trial court properly denied [the homeowner's] petition to open the default judgment."
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15045_09.pdf
The Superior Court denied the homeowner's petition to open/strike a default judgment. The Petition to Strike relied on the fact that, at the time the complaint was filed, the mortgage had not been assigned to plaintiff but rather was alleged to be in the process of being assigned. The homeowner claimed that this failure was in violation of Pa. RCP 1147(a)(1), which requires a statment of the date of assignment and the place where it is recorded, and of Pa. R.C.P. 1019(i), which requires that, where claims are based a writing, the writing must be attached.
Plaintiff filed its foreclosure complaint on November 14, 2007. The mortgage was not assigned to plaintiff untilDecember 28, 2007, and was not recorded until January 15, 2008 -- after a default judgment had already been entered against the homeowner, for failure to respond to the complaint.
Petition to Strike
The court concluded that "there was not a fatal defect apparent on the record" and that the plaintiff "sufficiently set forth the existence and date of the mortgage," the fact that plaintiff was the mortgage holder and "was now the legal owner of the mortgage, thereby indicating it had assumed all the rights and remedies related to the mortgage, and the fact [plaintiff] was seeking to formalize the assignment....Simply put, [plaintiff's] complaint sufficiently put [the homeowner] on notice of [plaintiff's] claim of interest with regard to the subject mortgage. Contrary to [the homeowner's] suggestion, we conclude that Pa.R.C.P. 1147(a)(1) does not require that a party have a recorded assignment as a prerequisite to filing a complaint in mortgage foreclosure."
Concerning the failure to attach the assignment to the complaint, as required by Pa. R.C.P. 1019(i), the court said that the "averment that [plaintiff] was in the process of formalizing the assignment sufficiently explained why, under Pa.R.C.P. 1019, a copy of the written assignment was not attached to the complaint. Thereafter, as [plaintiff] explained in the complaint that it was in the process of doing, the written assignment was executed on December 28, 2007, and recorded on January 15, 2008. We are convinced that [plaintiff] adequately met the requirements of Pa.R.C.P. 1147 and 1019, and we note that, to the extent [the homeowner] believes [plaintiff] was not the legal owner of the mortgage, who was in the process of formalizing the assignment, then the proper recourse would have been to go beyond the face of the record and seek to open the judgment on this basis."
The court squarely rejected the argument that "the trial court should have granted [the homeowner's] to strike since it was apparent on the face of the record that [plaintiff] did not have standing to file a complaint in mortgage foreclosure against [the homeowner]. The “crux” of [homeowner's] argument is that, before [plaintiff] could file a complaint in mortgage foreclosure, [plaintiff] was required to have executed and recorded a written assignment..., thereby indicating it was the real party in interest. We reject this argument....Simply put, contrary to [the homeowner's] suggestion, the recording of an assignment of the mortgage was not a prerequisite to plaintiff/assignee having standing to seek enforcement of the mortgage via a mortgage foreclosure action."
Petition to Open
The court noted the the homeowner had "averred meritorious defenses, namely, that she lacked a security interest in the property due to her rescission of the loan, the loan should not be enforced since it is a predatory loan, the loan was void due to the broker’s violation of Pennsylvania’s Credit Services Act, and the loan violated Pennsylvania’s consumer protection statute."
However, it did not consider these defenses, holding that the homeowner's petition to open filed 82 days after the entry of judgment was not "promptly filed" and that she did not have a valid excuse for not filing earlier, rejecting her claim of lack of sophistication and belated awareness of potentially valid defenses. The court said that "this is a case where [the homeowner], despite numerous notices to secure counsel, simply did not do so until approximately three months after the complaint was filed and six weeks after the default judgment was entered against her. The fact [she]may be unsophisticated in legal and financial matters is all the more reason she should have heeded the notices to secure legal counsel at once, and her deliberate decision not to defend does not provide a reasonable explanation or excuse necessary to open the default judgment." Thus, "even assuming [she] pleaded a meritorious defense, the trial court properly denied [the homeowner's] petition to open the default judgment."
Friday, September 11, 2009
social security - disability - obesity - findings/reasons
Diaz v. Commissioner or Social Security - 3rd Circuit - August 12, 2009
http://www.ca3.uscourts.gov/opinarch/084067p.pdf
Claimant's case was remanded because of the failure of the ALJ to properly evaluate the effect of her morbid obesity on her ability to work.
The ALJ’s ruling is not supported by substantial evidence because, contrary to SocialSecurity Ruling (“SSR”) 00-3p, no consideration was given to Diaz’s severe obesity. The ALJ acknowledged this impairment at step two but failed to consider its impact, in combination with her other impairments, at step three, as required.
SSR 00-3p replaced an automatic designation of obesity as a Listed impairment, based on a claimant’s height and weight, with an individualized inquiry, focused on the combined effect of obesity and other severe impairments afflicting the claimant: “We will also find equivalence if an individual has multiple impairments, including obesity, no one of which meets or equals the requirements of a listing, but the combination of impairments is equivalent in severity to a listed impairment.” Although SSR 00-3p was superseded by SSR 02-1p, SSR 02-1p did not materially amend SSR 00-3p. See Rutherford v. Barnhart, 399 F.3d 546, 552 n.4 (3d Cir. 2005).
SSR 00-3p instructs that “obesity may increase the severity of coexisting or related impairments to the extent that the combination of impairments meets the requirements of a listing. This is especially true of musculoskeletal, respiratory, and cardiovascular impairments. It may also be true for other coexisting or related impairments, including mental disorders.” Hence, an ALJ must meaningfully consider the effect of a claimant’s obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step.
In Burnett, the court held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements that a condition does not constitute the medical equivalent of a listed impairment are insufficient. The ALJ must provide a “discussion of the evidence” and an “explanation of reasoning” for his conclusion sufficient to enable meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n.3 (3d Cir. 2004).
The court also remanded on the basis of the ALJ's failure to give proper wieght and consideration to the treating physician's opinion, which was well supported by the evidence.
http://www.ca3.uscourts.gov/opinarch/084067p.pdf
Claimant's case was remanded because of the failure of the ALJ to properly evaluate the effect of her morbid obesity on her ability to work.
The ALJ’s ruling is not supported by substantial evidence because, contrary to SocialSecurity Ruling (“SSR”) 00-3p, no consideration was given to Diaz’s severe obesity. The ALJ acknowledged this impairment at step two but failed to consider its impact, in combination with her other impairments, at step three, as required.
SSR 00-3p replaced an automatic designation of obesity as a Listed impairment, based on a claimant’s height and weight, with an individualized inquiry, focused on the combined effect of obesity and other severe impairments afflicting the claimant: “We will also find equivalence if an individual has multiple impairments, including obesity, no one of which meets or equals the requirements of a listing, but the combination of impairments is equivalent in severity to a listed impairment.” Although SSR 00-3p was superseded by SSR 02-1p, SSR 02-1p did not materially amend SSR 00-3p. See Rutherford v. Barnhart, 399 F.3d 546, 552 n.4 (3d Cir. 2005).
SSR 00-3p instructs that “obesity may increase the severity of coexisting or related impairments to the extent that the combination of impairments meets the requirements of a listing. This is especially true of musculoskeletal, respiratory, and cardiovascular impairments. It may also be true for other coexisting or related impairments, including mental disorders.” Hence, an ALJ must meaningfully consider the effect of a claimant’s obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step.
In Burnett, the court held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements that a condition does not constitute the medical equivalent of a listed impairment are insufficient. The ALJ must provide a “discussion of the evidence” and an “explanation of reasoning” for his conclusion sufficient to enable meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n.3 (3d Cir. 2004).
The court also remanded on the basis of the ALJ's failure to give proper wieght and consideration to the treating physician's opinion, which was well supported by the evidence.
Friday, September 04, 2009
mortgages - HEMAP - reasonable prospect - speculative income
Smeal v. PHFA - Cmwlth. Court - August 5, 2009 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2216CD08_8-5-09.pdf
The court upheld PHFA's decision that the applicant for HEMAP assistance from PHFA did not have a reasonable prospect of resuming full mortgage payments within the statutorily specified time -- in that case, 24 months.
The agency found that the applicant was "financially overextended" and that her expenses had exceeded her income for some time. Most pertinent, it found that her claims of future income from a personal business were "purely speculative" and did not establish the required "reasonable prospect" . The court thus approved of the agency's consideration of the applicant's "actual income history without considering...speculative income" that she claimed she would receive.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2216CD08_8-5-09.pdf
The court upheld PHFA's decision that the applicant for HEMAP assistance from PHFA did not have a reasonable prospect of resuming full mortgage payments within the statutorily specified time -- in that case, 24 months.
The agency found that the applicant was "financially overextended" and that her expenses had exceeded her income for some time. Most pertinent, it found that her claims of future income from a personal business were "purely speculative" and did not establish the required "reasonable prospect" . The court thus approved of the agency's consideration of the applicant's "actual income history without considering...speculative income" that she claimed she would receive.
consumer - gist-of-the-action doctrine - contract v. tort
DeFebo v. Anderson Windows Inc. - ED Pa. - September 3, 2009
http://www.paed.uscourts.gov/documents/opinions/09D1082P.pdf
Consumer's tort claims against window manufacturer and seller dismissed under the gist-of-the-action doctrine. The court characterized this as follows: "Something like a gathering storm, this is one in an increasing number of cases where the plaintiff attempts to turn straightforward breach of contract and warranty claims into tort claims. Pennsylvania law is not hospitable to such attempts. " The court dismissed plaintiff's tort claims in a complaint which alleged breach of contract, misrepresentation, breach of express warranty, breach of implied warranties, and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law
"Under Pennsylvania law, the gist of the action doctrine “precludes a plaintiff from recasting a breach of contract claim into a tort claim.” (citations omitted) For the tort action to survive, “‘the wrong ascribed to [the] defendant must be the gist of the action, the contract being collateral.’”...The doctrine specifically bars claims on extra-contractual statements regarding duties or obligations of parties that are later outlined in the contract....
Notably, fraud-in-the-inducement claims are not always barred by the gist of the action doctrine....(“[F]raud in the inducement of a contract would not necessarily be covered by [the gist of the action] doctrine because fraud to induce a person to enter into a contract is generally collateral to (i.e., not ‘interwoven’ with) the terms of the contract itself.”). However, the type of fraud is not necessarily dispositive, , and courts have applied the doctrine to claims for fraud-in-the-inducement.
Rather, a tort claim is generally barred by the doctrine if (1) it arises solely from a contract between the parties; (2) the duties allegedly breached were created and grounded in contract itself; (3) the liability stems from a contract; or (4) the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract.”
http://www.paed.uscourts.gov/documents/opinions/09D1082P.pdf
Consumer's tort claims against window manufacturer and seller dismissed under the gist-of-the-action doctrine. The court characterized this as follows: "Something like a gathering storm, this is one in an increasing number of cases where the plaintiff attempts to turn straightforward breach of contract and warranty claims into tort claims. Pennsylvania law is not hospitable to such attempts. " The court dismissed plaintiff's tort claims in a complaint which alleged breach of contract, misrepresentation, breach of express warranty, breach of implied warranties, and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law
"Under Pennsylvania law, the gist of the action doctrine “precludes a plaintiff from recasting a breach of contract claim into a tort claim.” (citations omitted) For the tort action to survive, “‘the wrong ascribed to [the] defendant must be the gist of the action, the contract being collateral.’”...The doctrine specifically bars claims on extra-contractual statements regarding duties or obligations of parties that are later outlined in the contract....
Notably, fraud-in-the-inducement claims are not always barred by the gist of the action doctrine....(“[F]raud in the inducement of a contract would not necessarily be covered by [the gist of the action] doctrine because fraud to induce a person to enter into a contract is generally collateral to (i.e., not ‘interwoven’ with) the terms of the contract itself.”). However, the type of fraud is not necessarily dispositive, , and courts have applied the doctrine to claims for fraud-in-the-inducement.
Rather, a tort claim is generally barred by the doctrine if (1) it arises solely from a contract between the parties; (2) the duties allegedly breached were created and grounded in contract itself; (3) the liability stems from a contract; or (4) the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract.”
Thursday, September 03, 2009
UC - independent contractor - "online mentor"
Thomas Edison State College v. UCBR - August 26, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2284CD08_8-26-09.pdf
An "online mentor" of students, paid on a per-student basis, was held to be independent contractor rather than an employee and thus disqualified under Section 4(l)(2)(B) of the UC Law, 43 P.S. § 753(l)(2)(B), which creates a two-pronged test in order to determine whether a person is an employee or not: first, whether the person was free from control and direction in the performance of the work; and second, whether the business was one which is customarily engaged in as an independent trade or business. Venango Newspapers v. UCBR, 631 A.2d 1384 (Pa. Cmwlth. 1993).
The court also relied on CE Credits Online v. UCBR, 946 A.2d 1162 (Pa. Cmwlth. 2008), petition for allowance of appeal denied, 971 A.2d 493 (2009). Glatfelter Barber Shop v. UCBR, 957 A.2d 786, 789 (Pa. Cmwlth.), petition for allowance of appeal denied, 599 Pa. 712, 962 A.2d 1198 (2008); Pavalonis v. UCBR, 426 A.2d 215 (Pa. Cmwlth. 1981). Danielle Viktor, Ltd. v. DOLI, 586 Pa. 196, 892 A.2d 781 (2006).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2284CD08_8-26-09.pdf
An "online mentor" of students, paid on a per-student basis, was held to be independent contractor rather than an employee and thus disqualified under Section 4(l)(2)(B) of the UC Law, 43 P.S. § 753(l)(2)(B), which creates a two-pronged test in order to determine whether a person is an employee or not: first, whether the person was free from control and direction in the performance of the work; and second, whether the business was one which is customarily engaged in as an independent trade or business. Venango Newspapers v. UCBR, 631 A.2d 1384 (Pa. Cmwlth. 1993).
The court also relied on CE Credits Online v. UCBR, 946 A.2d 1162 (Pa. Cmwlth. 2008), petition for allowance of appeal denied, 971 A.2d 493 (2009). Glatfelter Barber Shop v. UCBR, 957 A.2d 786, 789 (Pa. Cmwlth.), petition for allowance of appeal denied, 599 Pa. 712, 962 A.2d 1198 (2008); Pavalonis v. UCBR, 426 A.2d 215 (Pa. Cmwlth. 1981). Danielle Viktor, Ltd. v. DOLI, 586 Pa. 196, 892 A.2d 781 (2006).
housing - sec. 8 - termination - admin. findings
Housing Authority of Pittsburgh v. Degelman - Cmwlth. Court - September 2, 2009 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/228CD09_9-2-09.pdf
This decision is not reported and therefore not citeable http://www.pacode.com/secure/data/210/chapter67/chap67toc.html#67.55, but it may be of some use to advocates.
The city housing authority moved to terminate the tenancy of a sec. 8 tenant for alleged drug-related criminal activity. At the admin. hearing, police testified about finding lots of used needles and other drug paraphenalia on the premises, for which the tenant said other people were responsible.
Apparently the hearing officer did not making findings about the tenant's credibility and, in his decision, did not refer to the testimony of the tenant or the maintenance man, which was clearly relevant to the decision. The court thus said that
(f)ederal courts that have considered the degree to which a decision has satisfied this requirement [of stating reasons for the decision] have generally not required a thorough review and evaluation of all of the evidence parties have presented. Nor have they appeared to have required the fact finder to explain the reasons why he or she apparently did not find certain evidence credible. See, e.g., Edgecomb v. Housing Authority of the Town of Vernon, 824 F. Supp. 312 (D. Conn. 1993); 49 Federal Register 12215 (describing reasons for development of 24 C.F.R. §982.555(e)(6)). Admittedly, the hearing officer satisfied the requirements of 24 C.F.R. §982.555(e)(6). She described the testimony of Officer Sisak, which indicated that he found drug paraphernalia in [the tenant's] apartment. However, our review is governed by Pennsylvania standards. While the federal regulations may reflect a more relaxed standard, our applicable law requires adjudicators acting under the authority of the Local Agency Law to render decisions that provide an adequate basis for appellate review.
Consequently, we believe that the hearing officer was required to evaluate the testimony of [the tenant and maintenance man] in order to determine [the tenant's] culpability with regard to the drug activity. The failure of the hearing officer to consider this testimony essentially precludes us from meaningful appellate review, as we are unable to discern from the hearing officer’s decision whether said testimony was considered at all or simply rejected. Moreover, we are unable to discern whether the hearing officer exercised her discretion noted above due to the lack of any findings with respect to this testimony.... Because the hearing officer never indicated in her decision whether she believed [the tenant or maintenance man], we cannot discern whether the hearing officer simply ignored this evidence or silently concluded that the testimony was not credible.
The court remanded the cases to the housing authority hearing examiner "for further findings consistent with this opinion."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/228CD09_9-2-09.pdf
This decision is not reported and therefore not citeable http://www.pacode.com/secure/data/210/chapter67/chap67toc.html#67.55, but it may be of some use to advocates.
The city housing authority moved to terminate the tenancy of a sec. 8 tenant for alleged drug-related criminal activity. At the admin. hearing, police testified about finding lots of used needles and other drug paraphenalia on the premises, for which the tenant said other people were responsible.
Apparently the hearing officer did not making findings about the tenant's credibility and, in his decision, did not refer to the testimony of the tenant or the maintenance man, which was clearly relevant to the decision. The court thus said that
(f)ederal courts that have considered the degree to which a decision has satisfied this requirement [of stating reasons for the decision] have generally not required a thorough review and evaluation of all of the evidence parties have presented. Nor have they appeared to have required the fact finder to explain the reasons why he or she apparently did not find certain evidence credible. See, e.g., Edgecomb v. Housing Authority of the Town of Vernon, 824 F. Supp. 312 (D. Conn. 1993); 49 Federal Register 12215 (describing reasons for development of 24 C.F.R. §982.555(e)(6)). Admittedly, the hearing officer satisfied the requirements of 24 C.F.R. §982.555(e)(6). She described the testimony of Officer Sisak, which indicated that he found drug paraphernalia in [the tenant's] apartment. However, our review is governed by Pennsylvania standards. While the federal regulations may reflect a more relaxed standard, our applicable law requires adjudicators acting under the authority of the Local Agency Law to render decisions that provide an adequate basis for appellate review.
Consequently, we believe that the hearing officer was required to evaluate the testimony of [the tenant and maintenance man] in order to determine [the tenant's] culpability with regard to the drug activity. The failure of the hearing officer to consider this testimony essentially precludes us from meaningful appellate review, as we are unable to discern from the hearing officer’s decision whether said testimony was considered at all or simply rejected. Moreover, we are unable to discern whether the hearing officer exercised her discretion noted above due to the lack of any findings with respect to this testimony.... Because the hearing officer never indicated in her decision whether she believed [the tenant or maintenance man], we cannot discern whether the hearing officer simply ignored this evidence or silently concluded that the testimony was not credible.
The court remanded the cases to the housing authority hearing examiner "for further findings consistent with this opinion."
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