Thursday, October 29, 2009

drivers license - refusal to take chemical test - knowing refusal - influence of prescr. drug and head injury

Sitoski v. PennDOT - Cmwlth. Court - October 29, 2009

If a licensee takes a prescription drug, knowing its side effects, and then sustains a head injury in an accident, the licensee can establish an inability to make a knowing and conscious refusal by presenting expert medical testimony that the head injury played a greater role in the refusal than the prescription drug.

Here, the licensee presented medical testimony, but not about whether licensee’s closed-head injury played a greater role than the prescription sleep medication in his inability to make a knowing and conscious refusal. The doctor testified only that the sleep medication in combination with the closed-head injury made licensee unable to make a knowing and conscious refusal. The suspension, therfore, was proper.

child abuse - expungement - founded report - finality of appeal

LC v. DPW - Cmwlth. Court - October 29, 2009

DPW was not required to wait until appellant's criminal appeals were finally resolved to list him as an abuser in a "founded" report. Section 6303 of the Child Protective Services Law defines “founded report” as a child abuse report made pursuant to “any judicial adjudication” of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse. 23 Pa. C.S. §6303. Thus, DPW was not required to wait until L.C. exhausted his appeals to list him as an abuser in a “founded report.”

RESPA - anti-kickback provision - private right of action - no overcharge allegation requiredd

Alston et al. v. Countrywide Financial Corp. - 3d Cir. - October 28, 2009

This is a class action brought by homebuyers who sought to recover statutory treble damages pursuant to §8(d)(2) of the Real Estate Settlement Procedures Act of 1974 (“RESPA”), 12 U.S.C. § 2607(d)(2).

Plaintiffs alleged that their private mortgage insurance premiums were channeled into an unlawful “captive reinsurance arrangement”—essentially, a kickback scheme—operated by their mortgage lender and its affiliated reinsurer, in violation of RESPA §8(a) and §8(b), 12 U.S.C. § 2607(a)-(b).*

The thrust of the complaint is that, in enacting and amending section 8, Congress bestowed upon the consumer the right to a real estate settlement free from unlawful kickbacks and unearned fees, and Countrywide’s invasion of that statutory right, even without a resultant overcharge, was an injury-in-fact for purposes of Article III standing. The District Court disagreed and dismissed the complaint without prejudice for lack of jurisdiction.

What is before us for decision turns on a question of statutory interpretation—does or does not the plain language of RESPA section 8(d)** indicate that Congress created a private right of action without requiring an overcharge allegation? We conclude that it does. Accordingly, we will reverse the Order of the District Court.

The plain language of RESPA section 8 does not require plaintiffs to allege an overcharge. The best indication of Congress’s intent in this regard is the method it prescribed for the calculation of statutory damages in [other sections of RESPA]....Critically, none of these provisions contains the word “overcharge” or otherwise implies that the plaintiff must allege that he or she paid more than he or she otherwise would have paid. See id. § 2607(a), (b), (d)(2). Instead, damages are fixed at three times the total charge paid by the consumer in exchange for a settlement service, and not merely any overcharge.

We agree with plaintiffs and the United States, intervening on plaintiffs’ behalf, that the provision of statutory damages based on the entire payment, not on an overcharge, is a certain indication that Congress did not intend to require an overcharge to recover under section 8 of RESPA.
* Section 8(a) prohibits “any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.” 12 U.S.C. § 2607(a). Section 8(b) prohibits unearned fees: “No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service . . . other than for services actually performed.” Id. § 2607(b).

** Congress authorized private actions against a person who violates section 8. As amended in 1983, section 8(d)(2) provides that “[a]ny person or persons who violate the prohibition or limitations of this section shall be jointly and severally liable to the person or persons charged for the settlement service involved in the violation in an amount equal to three times the amount of any charge paid for such settlement service.” Id.