housing - sec. 8 - housing quality standards - no private right of action - municipal liability - state-created danger

McKinney et al. v. Philadelphia Housing Authority - ED Pa. - April 20, 2010

http://www.paed.uscourts.gov/documents/opinions/10D0390P.pdf

No private right of action based on housing quality standard provisions in statute/regulations

The cases indicate an identifiable taxonomy,where certain kinds of statutorylanguage clearly create personal rights and other kinds do not. When the subject of the statutory language is the party for whose benefit the statute is intended, such as in Titles VI and IX (“No person . . . shall be subjected to discrimination”) Congress has shown an “unmistakable focus on the benefited class” and it is clear that the statute confers a personal right. See Cannon, 441 U.S. at 691–93.

When the subject of the statutory language is not the intended beneficiary, but the statutory provision mandates that a regulated entity provide an enumerated right to an enumerated beneficiary, the Third Circuit has concluded that the statute creates personal rights. This is because these cases are “difficult, if not impossible, as a linguistic matter, to distinguish” from cases in which the intended beneficiary of the statute is the subject of the statutory language. See Sabree, 376 F.3d at 190. Examples include the statutory language in Sabree, whichmandated that statemedical assistance plans ensure that medical assistance shall be furnishedwith reasonable promptness to all eligible individuals, and Grammer, which required nursing facilities to protect and promote the rights of each resident, including the right to choose a personal attending physician. See 367 F.3d at 189; 570 F.3d at 529.

However, when the statutory language speaks of a primary subject—the object of the regulation—and a secondary subject, who benefits from the regulation of the primary subject, no personal rights are created. See Newark Parents, 547 F.3d at 210. Such language does not speak of the rights or entitlements of the secondary subject, but only of the obligations of the primary subject. Because the focus of these statutes “is on the entity regulated and is at least one step removed from the interests of” the intended beneficiary, courts will not find personal rights in such cases. See id.

Given this framework, the Court determines that neither of the Housing Act provisions Section 1437f(o)(8) states “[F]or each dwelling unit for which a housing assistance payment contract is established under this subsection, the public housing agency shall inspect the unit before any assistance payment is made to determine whether the dwelling unit meets the housing quality standards under subparagraph (B).” 42 U.S.C. § 1437f(o)(8)(A). Section 1437d(f) states, in relevant part: “(1) Each contract for contributions for a public housing agency shall require that the agency maintain its public housing in a condition that complies with . . . the housing quality standards . . . . (2) The Secretary shall establish housing quality standards . . . that ensure that public housing dwelling units are safe and habitable. . . .” 42 U.S.C. § 1437d(f).

Plaintiffs point to in the present case create personal rights. The statutes Plaintiffs seek to enforce, 42 U.S.C. §§ 1437f(o)(8) and 1437d(f),3 do not even mention the intended beneficiary of the regulation. Since the statutory provisions under which Plaintiffs bring their claims against PHA are not privately enforceable, neither are the regulatory provisions they cite. See Sandoval, 532 U.S. at 291 (“[I]t is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized byCongress.”); Three Rivers, 382 F.3d at 424 (“[A] regulation cannot ‘create a right enforceable through section 1983 where the alleged right does not appear explicitly in the statute, but only appears in the regulation.’” (quoting S. Camden Citizens in Action v. N.J. Dep't of Envtl. Prot., 274 F.3d 771, 781 (3d Cir. 2001))). Therefore, the Court concludes that Plaintiffs do not have a private right of action to enforce 42 U.S.C. §§ 1437f(o)(8), 1437d(f), or their associated regulations under either 42 U.S.C. § 1983 or an implied right of action, because those provisions of law do not create personal rights.

Municipal liability - state-created danger

Defendant's motion for summary judgment rejected on this claim, because, inter alia, "[b]ut for PHA’s approval of the Scattergood property, Plaintiffs would not be living there and never would have been exposed to the alleged dangers therein. Without PHA’s payment of the rent for the Scattergood property, Plaintiffs would not be living in the home and exposed to its damp air. And but for the alleged appointment and notice requirement, Plaintiffs almost certainlywould have been out of the Scattergood property earlier and faced less exposure to the alleged dangers within the home. Thus, on their face, PHA’s acts were but-for causes of Plaintiffs’ harm.

The other requirements of DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189 (1989) were adequately pleaded, to avoid summary judgment. Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996). To establish a claim based on the state-created danger doctrine, a plaintiff must satisfy the following elements: (1) the harm causedwas foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) some relationship existed between the state and the plaintiff that renders plaintiff a foreseeable victim; and (4) “a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.” Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006).

custody - reliance on custom, practice, usage not permitted

B.C.S. v. J.A.S. - Superior Court - April 20, 2010

http://www.pacourts.us/OpPosting/Superior/out/A02043_10.pdf

We hold that a court may not rely on any custom, practice, or judicial norm advancing a presumption of primary physical custody of school-age children when evaluating a petition to modify custody.

Father challenges the court’s reliance on “York County Practice” in deciding against a shared custody arrangement. He refers to the court’s comment that courts “in York County have often provided that primary majority custody situations are best suited for children of school age. There are arrangements that can be made if parents reside in the same district and are able to cooperate.” Because the law unequivocally provides for a fact-specific, case-by-case analysis of all factors affecting the child’s best interest in custody proceedings, any presumption of primary physical custody for school-age children is completely unfounded. See A.D., 989 A.2d at 36. Unless the legislature determines otherwise, the law contains no presumption that primary physical custody situations are best suited for school-aged children. See id.

Indeed, this Court explicitly found the trial court abused its discretion when it awarded primary physical custody based on the “court’s personal view that shared custody is seldom (if ever) in the best interests of school-age child[ren].” See M.A.T. v. G.S.T., 989 A.2d 11, 20 (Pa. Super. 2010) (en banc). We thus re-emphasize the impropriety of any custom, practice, or judicial norm advancing a presumption of primary physical custody of school-age children. See id.; A.D., 989 A.2d at 36

Accordingly, we hold that the trial court’s reliance on “York County Practice” that “primary majority custody situations are best suited for children of school age” in denying Father’s petition to modify custody is contrary to well-established caselaw mandating a fact-specific analysis of the children’s best interest in resolving any petition to modify custody.

__._,_.___

attorney fees - civil rights - lodestar - enhancement

SUPREME COURT OF THE UNITED STATES

Syllabus

PERDUE v. KENNY A.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 08–970. Argued October 14, 2009—Decided April 21, 2010

Title 42 U. S. C. §1988 authorizes courts to award a "reasonable" attorney’s fee for prevailing parties in civil rights actions. Half of respondents’ $14 million fee request was based on their calculation of the"lodestar,"

i.e.,

the number of hours the attorneys and their employees worked multiplied by the hourly rates prevailing in the community. The other half represented a fee enhancement for superior work and results, supported by affidavits claiming that the lodestar wouldbe insufficient to induce lawyers of comparable skill and experienceto litigate this case. Awarding fees of about $10.5 million, the District Court found that the proposed hourly rates were "fair and reasonable," but that some of the entries on counsel’s billing records were vague and that the hours claimed for many categories were excessive. The court therefore cut the lodestar to approximately $6 million, but enhanced that award by 75%, or an additional $4.5 million.The Eleventh Circuit affirmed in reliance on its precedent.

Held:

1. The calculation of an attorney’s fee based on the lodestar may be increased due to superior performance, but only in extraordinary circumstances. Pp. 5–12.

(a) The lodestar approach has "achieved dominance in the federal courts." Gisbrecht v. Barnhart, 535 U. S. 789, 801. Although imperfect, it has several important virtues: It produces an award that approximates the fee the prevailing attorney would have received for representing a paying client who was billed by the hour in a comparable case; and it is readily administrable, see, e.g., Burlington v. Dague, 505 U. S. 557, 566, and "objective," Hensley v. Eckerhart, 461 U. S. 424, 433, thereby cabining trial judges’ discretion, permitting meaningful judicial review, and producing reasonably predictable results. Pp. 5–7.

(b) This Court has established six important rules that lead totoday’s decision. First, a "reasonable" fee is one that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case, see Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U. S. 546, 565, but that does not provide "a form of economic relief to improve the financial lot of attorneys," ibid. Second, there is a "strong" presumption that the lodestar method yields a sufficient fee. See, e.g., id., at 564. Third, the Court has never sustained an enhancement of a lodestar amount for performance, but has repeatedly said that an enhancement maybe awarded in "rare" and "exceptional" circumstances. E.g., id., at 565. Fourth, "the lodestar includes most, if not all, of the relevant factors constituting a ‘reasonable’ attorney’s fee." Id., at 566. An enhancement may not be based on a factor that is subsumed in the lodestar calculation, such as the case’s novelty and complexity, see, e.g., Blum v. Stenson, 465 U. S. 886, 898, or the quality of an attorney’s performance, Delaware Valley, supra, at 566. Fifth, the burden of proving that an enhancement is necessary must be borne by the fee applicant. E.g., Blum, 465 U. S., at 901. Sixth, an applicant seekingan enhancement must produce "specific evidence" supporting the award, id., at 899, 901, to assure that the calculation is objective andcapable of being reviewed on appeal. Pp. 7–9.

(c) The Court rejects any contention that a fee determined by the lodestar method may not be enhanced in any situation. The "strong presumption" that the lodestar is reasonable may be overcome in those rare circumstances in which the lodestar does not adequatelyaccount for a factor that may properly be considered in determining a reasonable fee. P. 9.

(d) The Court treats the quality of an attorney’s performance andthe results obtained as one factor, since superior results are relevantonly to the extent it can be shown that they stem from superior attorney performance and not another factor, such as inferior performance by opposing counsel. The circumstances in which superior attorney performance is not adequately taken into account in the lodestar calculation are "rare" and "exceptional." Enhancements should not be awarded without specific evidence that the lodestar feewould not have been "adequate to attract competent counsel." Blum, supra, at 897. First, an enhancement may be appropriate where the method used to determine the hourly rate does not adequately measure the attorney’s true market value, as demonstrated in part during the litigation. This may occur if the hourly rate formula takes into account only a single factor (such as years since admission to the bar) or perhaps only a few similar factors. In such a case, the trial judge should adjust the hourly rate in accordance with specific proof linking the attorney’s ability to a prevailing market rate. Second, an enhancement may be appropriate if the attorney’s performance includesan extraordinary outlay of expenses and the litigation is exceptionally protracted. In such cases, the enhancement amount must be calculated using a method that is reasonable, objective, and capable ofbeing reviewed on appeal, such as by applying a standard interestrate to the qualifying expense outlays. Third, an enhancement may be appropriate where an attorney’s performance involves exceptional delay in the payment of fees. In such a case, the enhancement should be calculated by a method similar to that used for an exceptional delay in expense reimbursement. Enhancements are not appropriate on the ground that departures from hourly billing are becoming more common. Nor can they be based on a flawed analogy to the increasingly popular practice of paying attorneys a reduced hourly rate witha bonus for obtaining specified results. Pp. 9–12.

2. The District Court did not provide proper justification for the 75% fee enhancement it awarded in this case.

It commented that the enhancement was necessary to compensate counsel at the appropriate hourly rate, but the effect was to raise the top rate from $495 tomore than $866 per hour, while nothing in the record shows that this is an appropriate figure for the relevant market. The court also emphasized that counsel had to make extraordinary outlays for expenses and wait for reimbursement, but did not calculate the amountof the enhancement attributable to this factor. Similarly, the court noted that counsel did not receive fees on an ongoing basis during the case, but did not sufficiently link this to proof that the delay was outside the normal range expected by attorneys who rely on §1988 forfees. Nor did the court calculate the cost to counsel of any extraordinary and unwarranted delay. And its reliance on the contingency of the outcome contravenes Dague, supra, at 565. Finally, insofar as the court relied on a comparison of counsel’s performance in this case with that of counsel in unnamed prior cases, it did not employ a methodology that permitted meaningful appellate review. While determining a "reasonable attorney’s fee" is within the trial judge’s sound discretion under §1988, that discretion is not unlimited. The judge must provide a reasonably specific explanation for all aspects of a fee determination, including any enhancement. Pp. 12–15.

532 F. 3d 1209, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., and THO-MAS, J., filed concurring opinions. BREYER, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, GINSBURG, and SOTOMAYOR, JJ., joined.

FDCPA - bona fide error defense - mistaken interpretation of law

Jermyn v. Carlisle, McNellie, et al. - US Supreme Court - April 21, 2010

http://www.supremecourt.gov/opinions/09pdf/08-1200.pdf

The Fair Debt Collection Practices Act (FDCPA), 15 U. S. C. §1692 et seq., imposes civil liability on "debt collector[s]" for certain prohibiteddebt collection practices. A debt collector who "fails to comply withany [FDCPA] provision . . . with respect to any person is liable tosuch person" for "actual damage[s]," costs, "a reasonable attorney’sfee as determined by the court," and statutory "additional damages." §1692k(a). In addition, violations of the FDCPA are deemed unfair or deceptive acts or practices under the Federal Trade Commission Act(FTC Act), §41 et seq., which is enforced by the Federal Trade Commission (FTC). See §1692l. A debt collector who acts with "actual knowledge or knowledge fairly implied on the basis of objective circumstances that such act is [prohibited under the FDCPA]" is subjectto civil penalties enforced by the FTC. §§45(m)(1)(A), (C). A debt collector is not liable in any action brought under the FDCPA, however, if it "shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." §1692k(c). Respondents, a law firm and one of its attorneys (collectively Carlisle), filed a lawsuit in Ohio state court on behalf of a mortgage company to foreclose a mortgage on real property owned by petitionerJerman. The complaint included a notice that the mortgage debt would be assumed valid unless Jerman disputed it in writing. Jerman’s lawyer sent a letter disputing the debt, and, when the mortgage company acknowledged that the debt had in fact been paid, Carlisle withdrew the suit. Jerman then filed this action, contending that by sending the notice requiring her to dispute the debt in writing, Carlisle had violated §1692g(a) of the FDCPA, which governs the contents of notices to debtors. The District Court, acknowledging adivision of authority on the question, held that Carlisle had violated§1692g(a) but ultimately granted Carlisle summary judgment under §1692k(c)’s "bona fide error" defense. The Sixth Circuit affirmed, holding that the defense in §1692k(c) is not limited to clerical or factual errors, but extends to mistakes of law.

Held: The bona fide error defense in §1692k(c) does not apply to a violation resulting from a debt collector’s mistaken interpretation of the legal requirements of the FDCPA. Pp. 6–30.

(a) A violation resulting from a debt collector’s misinterpretation ofthe legal requirements of the FDCPA cannot be "not intentional" under §1692k(c). It is a common maxim that "ignorance of the law willnot excuse any person, either civilly or criminally." Barlow v. United States, 7 Pet. 404, 411. When Congress has intended to provide amistake-of-law defense to civil liability, it has often done so more explicitly than here. In particular, the administrative-penalty provisions of the FTC Act, which are expressly incorporated into theFDCPA, apply only when a debt collector acts with "actual knowledgeor knowledge fairly implied on the basis of objective circumstances" that the FDCPA prohibited its action. §§45(m)(1)(A), (C). Given the absence of similar language in §1692k(c), it is fair to infer that Congress permitted injured consumers to recover damages for "intentional" conduct, including violations resulting from a mistaken interpretation of the FDCPA, while reserving the more onerous administrative penalties for debt collectors whose intentional actionsreflected knowledge that the conduct was prohibited. Congress alsodid not confine FDCPA liability to "willful" violations, a term more often understood in the civil context to exclude mistakes of law. See, e.g., Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 125–126. Section 1692k(c)’s requirement that a debt collector maintain "procedures reasonably adapted to avoid any such error" also more naturally evokes procedures to avoid mistakes like clerical or factual errors. Pp. 6–12.

(b) Additional support for this reading is found in the statute’s context and history. The FDCPA’s separate protection from liability for "any act done or omitted in good faith in conformity with any [FTC] advisory opinion," §1692k(e), is more obviously tailored to the concern at issue (excusing civil liability when the FDCPA’s prohibitionsare uncertain) than the bona fide error defense. Moreover, in enacting the FDCPA in 1977, Congress copied the pertinent portions of the bona fide error defense from the Truth in Lending Act (TILA), §1640(c). At that time, the three Federal Courts of Appeals to haveconsidered the question interpreted the TILA provision as referring to clerical errors, and there is no reason to suppose Congress disagreed with those interpretations when it incorporated TILA’s language into the FDCPA. Although in 1980 Congress amended the defense in TILA, but not in the FDCPA, to exclude errors of legal judgment, it is not obvious that amendment changed the scope of the TILA defense in a way material here, given the prior uniform judicialinterpretation of that provision. It is also unclear why Congress would have intended the FDCPA’s defense to be broader than TILA’s, and Congress has not expressly included mistakes of law in any of the parallel bona fide error defenses elsewhere in the U. S. Code.Carlisle’s reading is not supported by Heintz v. Jenkins, 514 U. S. 291, 292, which had no occasion to address the overall scope of theFDCPA bona fide error defense, and which did not depend on the premise that a misinterpretation of the requirements of the FDCPA would fall under that provision. Pp. 13–22.

(c) Today’s decision does not place unmanageable burdens on debtcollecting lawyers. The FDCPA contains several provisions expressly guarding against abusive lawsuits, and gives courts discretion in calculating additional damages and attorney’s fees. Lawyers have recourse to the bona fide error defense in §1692k(c) when a violationresults from a qualifying factual error. To the extent the FDCPA imposes some constraints on a lawyer’s advocacy on behalf of a client, itis not unique; lawyers have a duty, for instance, to comply with thelaw and standards of professional conduct. Numerous state consumer protection and debt collection statutes contain bona fide error defenses that are either silent as to, or expressly exclude, legal errors. To the extent lawyers face liability for mistaken interpretationsof the FDCPA, Carlisle and its amici have not shown that "the result [will be] so absurd as to warrant" disregarding the weight of textualauthority. Heintz, supra, at 295. Absent such a showing, argumentsthat the FDCPA strikes an undesirable balance in assigning the risks of legal misinterpretation are properly addressed to Congress. Pp. 22–30.

538 F. 3d 469, reversed and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, THOMAS, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in part and concurring in the judgment. KENNEDY, J., filed a dissenting opinion, in which ALITO, J., joined.

UC - willful misconduct - threat to harm co-worker

Ball v. UCBR - Cmwlth. Court - April 21, 2010 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1911CD09_4-21-10.pdf

“[T]hreats of harm toward a supervisor or a coworker constitute conduct below the standards of behavior which an employer has a right to expect from an employee.” Sheets v. UCBR, 708 A.2d 884, 885 (Pa. Cmwlth. 1998). Moreover, a willful misconduct determination may be based on an employee’s verbal threat of harm even if no physical altercation ensues. See, e.g., Rodites v. UCBR, 382 A.2d 1287, 1287-88 (Pa. Cmwlth. 1978) (finding willful misconduct where employee, during heated exchange with councilman, “offered to take the councilman outside”); Wilson v. UCBR, 325 A.2d 500, 501 (Pa. Cmwlth. 1974) (finding willful misconduct where employee told co-worker that his manager “should get off [his] back or [he] would ship him out of there in a plastic bag” and weapons were later discovered in employee’s car); Zondler v. UCBR, 175 A.2d 149, 149-50 (Pa. Super. 1961) (finding willful misconduct where employee held pencil close to co-worker’s face and made stabbing motions, frightening co-worker).5

5 But see Blount v. UCBR, 466 A.2d 771 (Pa. Cmwlth. 1983) (concluding employee’s remark about bomb threat did not rise to level of willful misconduct where remark was made off-handedly and there was no indication he was capable of carrying out such threat).

appeal - timeliness - collateral errors

Brown v. Levy - Commonwealth Court - April 21, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2221CD09_4-21-10.pdf


It was error for the prothonotary to refuse to accept a timely appeal because of collateral errors, including the failure to attach the case’s docket entries, provide the requisite number of copies, and provide a certificate of service indicating service upon the trial judge.


The court held that the prothonotary erred by not accepting the notice of appeal, applying the standard in Pennsylvania Rule of Appellate Procedure 902, which provides:

An appeal permitted by law as of right from a lower court to an appellate court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 903 (time for appeal). Failure of an appellant to take any step other than the timely filing of a notice of an appeal does not affect the validity of the appeal, but it is subject to such action as the appellate court deems appropriate, which may include, but is not limited to, remand of the matter to the lower court so that the omitted procedural step may be taken. (Emphasis added.)

In Lowrey v. East Pikeland Township, 562 A.2d 1010 (Pa. Cmwlth. 1989), the court held that a prothonotary who refused to time-stamp a timely filed appeal that omitted the case number committed an abuse of discretion and violated Rule 902 because the failure to include the case number did not affect the validity of the appeal. Likewise, in Department of Transportation v. Florek, 455 A.2d 1263 (Pa. Cmwlth. 1983), it held that a notice of appeal with various unnamed defects that was timely filed did not affect the validity of the appeal.

Here, it is undisputed that Petitioner timely filed a notice of appeal. As timeliness is the only requirement to make a notice of appeal valid, Petitioner’s first attempt to file a notice of appeal was indeed a valid notice of appeal, and the Prothonotary committed an abuse of discretion by sending the notice of appeal back to Petitioner rather than accepting it. It was, therefore, unnecessary for Petitioner to file a petition for leave to appeal nunc pro tunc because his appeal was indeed timely.

misrepresentation - tort v. contract - gist of the action doctrine

Pediatrix Screening, Inc. v. Telechem Internation, Inc. - 3d Cir. - April 20, 2010

http://www.ca3.uscourts.gov/opinarch/081391p.pdf


The Pennsylvania Superior Court has “operated under the assumption that the gist of the action doctrine is a viable doctrine that will eventually be explicitly adopted by [the] state’s High Court.” Reardon v. Allegheny Coll., 926 A.2d 477, 486 (Pa. Super. Ct. 2007). The 3d Circuit has embraced that view as well. Bohler-Uddeholm, 247 F.3d at 103-04.


The gist of the action “doctrine is designed to maintain the conceptual distinction between breach of contract claims and tort claims. As a practical matter, the doctrine precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” eToll, Inc. v. Elias/Savon Adver., Inc., 811 A.2d 10, 14 (Pa. Super. Ct. 2002) (citation omitted). In some circumstances, “it is possible that a breach of contract also gives rise to an actionable tort[.] To be construed as in tort, however, the wrong ascribed to defendant must be the gist of the action, the contract being collateral.” Id. (alteration in original) (quoting Bash v. Bell Tel. Co., 601 A.2d 825, 829 (Pa. Super. Ct. 1992)). That the misconduct was fraudulent does not bar application of the gist of the action principle. Werwinski v. Ford Motor Co., 286 F.3d 661, 681 (3d Cir. 2002).


The Superior Court has held that fraud claims should be barred where they arose during the course of the parties’ contractual relationship; where the allegedly fraudulent acts also were breaches of duties “created and grounded in the . . . contract[;]” and where the damages “would be compensable in an ordinary contract action[ and] thus, the claim would essentially duplicate a breach of contract action.” eToll, Inc., 811 A.2d at 20-21. Where fraud claims are “inextricably intertwined” with the contract claims, the gist of the action is contractual, and the fraud claim should be dismissed. Id. at 21.


The test has been discussed in other cases as well, including Hart v. Arnold, 884 A.2d 316, 341 (Pa. Super. Ct. 2005) (dismissing fraud-in-the-performance claim because it “essentially duplicate[d] . . . breach of contract claim and [its] success . . . [wa]s wholly dependent on the terms of a contract”), and Pittsburgh Construction Co. v. Griffith, 834 A.2d 572, 584 (Pa. Super. Ct. 2003) (vacating award for conversion on gist of the action grounds where “tort and breach of contract claims [were] inextricably intertwined, the success of the conversion claim depending entirely on the obligations as defined by the contract”). Compare Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 719 (Pa. Super. Ct. 2005) (separate fraud claim not barred when defendant “fraudulently . . . agreed to perform obligations that it never intended to perform in order to induce” plaintiff into entering into contract).

UC - voluntary quit - religious beliefs

Calhoun Jewelers LLC v. UCBR - April 20, 2010 - unpublished memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/2081CD09_4-20-10.pdf


The court reversed the grant of benefits to a claimant, who quit her job because of a conflict with her beliefs as a Jehovah's Witness, because she did not explain how the employer's instructions--to prepare a template for birthday cards to be sent to the employer's clients--violated her religious beliefs.


In Monroe v. UCBR, 535 A.2d 1222 (Pa. Cmwlth. 1988), this Court addressed the framework for a determination as to whether sincerely held religious beliefs conflict with job duties: The First Amendment right to the free exercise of religion applies to a sincerely held religious belief, and we do not believe that this right is limited only to beliefs held by members of established religions. . . . Accordingly, an actual conflict between one’s sincerely held religious beliefs and his or her employment conditions may constitute cause of a necessitous and compelling nature for voluntarily terminating employment. . . . .If it is determined that beliefs are sincerely held, then it must also be established that those beliefs are religious in nature. . . . . Monroe, 535 A.2d at 1224-1225.


Here, it is undisputed that Claimant was a Jehovah’s Witness. Claimant explained at the hearing before the referee that she believed that “many of the origins of birthdays are linked with false worship, even such things as birthday greetings, as happy birthday are linked with false worship of gods.” A church elder testified regarding the tenets of this religion concerning birthdays. There was no error in the determination that Claimant was a Jehovah’s Witness and, as a Jehovah’s Witness, she had sincerely held beliefs concerning the celebration of birthdays.


However, claimant did not establish that those sincerely held religious beliefs were in conflict with her employment conditions. It is Claimant’s burden to demonstrate that she had a necessitous and compelling reason for quitting her employment based on her sincerely held religious beliefs. Claimant established that she had sincerely held religious beliefs. However, the Board erred when it determined that the writing of a “personal message” on a birthday card violated Claimant’s religious beliefs when Claimant failed to describe the “personal message.” Claimant had the opportunity to articulate what the message was that she was instructed to write and to establish how that violated her religion, but she failed to do so.

attachment/garnishment - exempt property - court rules

Posted Today! In Re: Amendment of Rules 3111, 3111.1, 3140, 3141, 3252 and 3253 of the Pennsylvania Rules of Civil Procedure, No. 523 Civil Procedural Rules Docket
Opinion By: per curiam
Posted By: W.D. Prothonotary
	Date Rendered: 4/16/2010
	Date Posted: 4/19/2010
	Opinion Type: Rules	523civ.pdf
	Date Rendered: 4/16/2010
	Date Posted: 4/19/2010
	Opinion Type: Rules	523civ.attach.pdf
	Date Rendered: 4/16/2010
	Date Posted: 4/19/2010
	Opinion Type: Rules	523civ.rpt.pdf

Rule 3111. Service of the Writ on Garnishee. Effect

(a) * * *

(b) * * *

Note: For limitations on the power to attach tangible personal property see Rule 3108(a).

See Rule 3111.1 providing that service of the writ does not attach [the defendant’s funds on deposit in a bank or other financial institution in an account in which funds are deposited electronically on a recurring basis and are identified as funds which upon deposit are exempt from attachment] the first $10,000 of each account of the defendant in which any funds are deposited electronically on a recurring basis and are identified as funds that upon deposit are exempt from attachment, or each account of the defendant in which funds on deposit exceed $10,000 at any time, if all funds are deposited electronically on a recurring basis and are identified as being funds that upon deposit are exempt from attachment.

* * *

Explanatory Comment

New Rule 3111.1 was promulgated in 2007 to address the failure of the rules of civil procedure to protect funds held in accounts of banks and other financial institutions that are exempt from execution, levy, and attachment pursuant to federal and state legislation. The current rule protects from attachment all funds in an account in which any funds are deposited electronically on a recurring basis and are identified as being funds that upon deposit are exempt from execution, levy, or attachment. The amendment to subdivision (1) of Rule 3111.1 provides that only the first $10,000 held in an account may not be attached whenever the account includes any funds that are identified as being exempt from execution, levy, or attachment. If an account holder believes the remainder is also exempt, he or she may petition the court for relief. Under new subdivision (2) any funds that exceed $10,000 in an account may be attached unless all funds in the account are identified as exempt funds.

By the Civil Procedural Rules Committee

Stewart L. Kurtz

Chair

immigration - cancellation of removal - Special Rule for Battered Spouses

Johnson v. Attorney General - 3d Cir. - April 16, 2010


http://www.ca3.uscourts.gov/opinarch/072820p.pdf


Petitioner's claim for cancellation of removal under the Special Rule for Battered Spouses, 8 U.S.C. § 1229b(b)(2), denied by immigration judge, affirmed on appeal. Petitioner offered no evidence of having been battered, claiming only that she had made baseless allegations against him and denied him access to their child. Rather, it was his citizen-wife who got a PFA order.


The SRBS could be useful to our abuse clients in other circumstances. Section 1229b(b)(2), titled the “Special rule for battered spouse or child,” allows the Attorney General to cancel removal of a deportable alien if the alien meets five threshold requirements:

(i) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen . . . ;

(ii) the alien has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application . . . ;

(iii) the alien has been a person of good moral character during such period . . . ;

(iv) the alien is not inadmissible under paragraph (2) or (3) of section 1182(a) of this title, is not deportable under paragraphs (1)(G) or (2) through (4) of section 1227(a) of this title, subject to paragraph (5), and has not been convicted of an aggravated felony; and

(v) the removal would result in extreme hardship to the alien, the alien’s child, or the alien’s parent. 8 U.S.C. § 1229b(b)(2)(A)(i)-(v) (2006).

UC - self-employment - sideline activity

Lamoreaux v. UCBR - April 14, 2010 - unpublished memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/1312CD09_4-14-10.pdf


Claimant was found ineligible under 43 P.S. § 802(h), the sideline business exception, under which: "an employe who is able and available for full-time work shall be deemed not engaged in self-employment by reason of continued participation without substantial change during a period of unemployment in any activity including farming operations undertaken while customarily employed by an employer in full-time work whether or not such work is in “employment” as defined in this act and continued subsequent to separation from such work when such activity is not engaged in as a primary source of livelihood."


The court has found claimants engaged in self-employment eligible for benefits, if: 1) the self-employment began prior to the termination of the employe's full-time employment; 2) the self-employment continued without substantial change after the termination; 3) the employe remained available for full-time employment; and 4) the self-employment was not the primary source of the employe's livelihood. O’Hara v. UCBR, 648 A.2d 1311 (Pa. Cmwlth. 1994); see LaChance v. UCBR, 987 A.2d 167 (Pa. Cmwlth. 2009). The claimant has the burden of proving all the elements of this exception. O’Hara, 648 A.2d 1311.


Claimant was held to have failed to satisfy the 4th element, that the self-employment was not the primary source of her livelihood. She did not provide "adequate financial information to compare income from self-employment with income from other employment..." Parente v. UCBR, 366 A.2d 629 (Pa. Cmwlth. 1976). In this case, the Board correctly concluded that there was not adequate information to determine her primary source of income because there was no evidence of her self-employment earnings for the second half of 2008. In addition, her testimony as to her earnings was found not to be credible. By not providing documentary evidence of her earnings, claimant failed to meet her burden to prove that her self-employment was not the primary source of her livelihood, and therefore the Board was correct to deny benefits.

employment - ADA - effects of medication

Sulima v. Dept. of the Army - 3d Circuit - April 12, 2010


http://www.ca3.uscourts.gov/opinarch/084684p.pdf

A “disability” under the ADA can encompass an impairment resulting solely from the side effects of medication, whether or not the underlying health problems are disabling, following the decision of the 7th Circuit, which and held that these side effects may, under certain conditions, constitute a disabling impairment under the ADA. See Christian v. St. Anthony Med. Ctr., 117 F.3d 1051, 1051-52 (7th Cir. 1997).

The District Court here adopted the reasoning of the Seventh Circuit, but found that the side effects experienced by plaintiff did not constitute a disabling impairment, because he did not satisfy his burden under the Christian standard, which recognized as disabling the effects of a treatment for a condition that is not itself disabling, as long as the plaintiff can show that (1) the treatment is required “in the prudent judgment of the medical profession,” (2) the treatment is not just an “attractive option,” and (3) that the treatment is not required solely in anticipation of an impairment resulting from the plaintiff’s voluntary choices. Christian, 117 F.3d at 1052.

The lower court assumed, arguendo, that plaintiff had adequately shown that the medication’s side effects actually constituted a substantial limitation on a major life activity, but even so found that plaintiff was not disabled, because the medications were not “medically necessary," because plaintiff's doctor discontinued the medication after he was made aware of the problematic side effects. There was no contrary evidence to rebut the evidence that the medication was not required “in the prudent judgment of the medical profession,” as required by the Christian test. Christian, 117 F.3d at 1052. In addition, the two-month period between the side effects beginning and the doctor discontinuing the medications — assuming they could be deemed medically necessary during that time — was not a long enough duration to qualify for “disability” under the ADA.

employment - state civil service - discrimination - pleading - specificity

Allen v. State Civil Service Commission - Cmwlth. Court - April 7, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1731CD09_4-7-10.pdf


The court held that the Petitioner failed to meet the pleading requirement of “specificity” for filing a SCSC Appeal Request Form as required by Section 105.12(c) of the Civil Service Rules, in that she merely proclaimed race and disability discrimination through general and conclusory allegations which are insufficient as a matter of law. She did not and could not, “identify acts/facts” that would indicate disparate treatment because of her race, and did not “identify acts/facts” that would indicate a failure to provide a reasonable accommodation for a known disability (a disability which is still, yet to be identified and determined).


The regulation requires that "Appeals alleging discrimination which do not include specific facts related to discrimination may be dismissed. Specific facts which should appear on the appeal form include: (1) The acts complained of. (2) How the treatment differs from treatment of others similarly situated. (3) When the acts occurred. (4) When and how the appellant first became aware of the alleged discrimination. 4 Pa. Code § 105.12(c) (emphasis added)."


The court has held that: "The burden of prosecuting such an appeal [(i.e., an appeal based on discrimination)] rests with the employee. The underlying factual basis of the claimed discrimination must be enumerated specifically. Discrimination cannot be inferred; there must be affirmative factual support to sustain the allegations. . . . Thus, [this Court] must determine whether the Appellant’s appeals stated sufficient facts to establish a claim. Keim v. Dep’t of Health, 543 A.2d 1261, 1264 (Pa. Cmwlth. 1988) (citations omitted; emphasis added)." See also, Craig v. State Civil Service Commission, 800 A.2d 364 (Pa. Cmwlth. 2002).

food stamps - service dog; notice

Douris v. DPW - Commonwealth Court - April 6, 2010 - unpublished memorandum opinion.


http://www.pacourts.us/OpPosting/Cwealth/out/1377CD09_4-6-10.pdf


service dog cannot be a household member
This Court is sympathetic to Petitioner’s argument that his service dog is a necessity for him due to his disability, and that he lacks the funds to properly feed his service dog. We hope that there is some other state or federal program that might provide for the maintenance and upkeep of Petitioner’s service dog, and that the Department or the CAO would be able to work with Petitioner in finding such a program. However, it is unambiguously clear from the provisions cited above that food stamp benefits are intended for humans only.


inadequate notice was harmless error
We now turn to Petitioner’s argument that the Department violated the ADA at 42 U.S.C. § 12132 and USDA regulations at 7 C.F.R. §§ 272.6(a), 273.15(p)(1), by failing to provide him with copies of the documents to be introduced at his hearing before the ALJ in a typeface large enough for him to read.

It is extremely troubling that the Department was either unable or unwilling to provide Petitioner with larger-format copies of the documents to be introduced at his hearing. However, even assuming this conduct denied Petitioner his right to due process, in this case, it amounts to harmless error....[A]fter reviewing the record, as well as the law cited above, this Court is convinced that even with full and complete access to the documents to be introduced at the hearing, there is no argument Petitioner could have made that would have resulted in a favorable decision for him.

consumer - credit reporting agency - FCRA

Payne v. TransUnion LLC - ED Pa. - March 31, 2010

http://www.paed.uscourts.gov/documents/opinions/10D0329P.pdf


The court rejected the defendant's argument that it is not a credit reporting agency, pending further discovery and development of the record.

For an entity to be a CRA, (1) it must act in exchange for compensation; (2) it must regularly assemble or evaluate information on consumers; (3) its purpose in evaluating this information must be to furnish consumer reports; and (4) it must utilize interstate commerce in the preparation or furnishing of the consumer report. Knechtel, 2009 WL 4123275, at *3 (citing Lewis v. Ohio Prof’l Elec. Network LLC, 190 F. Supp. 2d 1049, 1056 (S.D. Ohio 2002)). Defendants argue that (1) Plaintiff has not adequately alleged that Defendants assemble and evaluate information on consumers, and that (2) Plaintiff has not adequately alleged that Defendants disseminated a “consumer report.”

Courts have found that the term “assemble or evaluate” “implies a function which involves more than receipt and retransmission of information identifying a particular debt.” ... Merely sending or conveying documents regarding consumer debts to CRAs does not constitute “assembling or evaluating” consumer credit information under the FCRA. Ori v. Fifth Third Bank, 603 F. Supp. 2d 1171, 1175 (E.D. Wis. 2009) (citing DiGianni v. Stern’s, 26 F.3d 346, 349 (2d Cir. 1994)).

In Marricone, Judge Brody of this Court rejected arguments identical to those offered by Defendants here. See Marricone, 2009 WL 3245417, at *1. Judge Brody concluded that

[t]he definition of a consumer reporting agency in 15 U.S.C. § 1681a(f) is fairly broad, and the language of the statute as well as relevant case law demonstrate that whether an entity is acting as a consumer reporting agency in a particular situation is a fact-specific inquiry. While credit bureaus such as Equifax may be the paradigmatic CRAs, the term can extend beyond such entities. See, e.g.,Williams v. LexisNexis Risk Mgmt. Inc., 2007 U.S. Dist. LEXIS 62193, *4 (E.D. Va. 2007); Lewis v. Ohio Prof’l Elec. Network LLC, 190 F. Supp. 2d 1049, 1061 (S.D. Ohio 2002). Thus factual discovery will help determine whether Defendants acted as CRAs in this case. Absent binding case law holding that Lexis and Reed are not CRAs as a matter of law, Plaintiff’s allegations that Defendants operated as CRAs survives a 12(b)(6) motion to dismiss.

Id. Judge Brody denied the motion to dismiss the FCRA claims without prejudice to Defendants to reassert their arguments after the facts had been fleshed out in discovery. In Breslin, Judge McLaughlin of this Court in deciding an identical motion to dismiss agreed with Judge Brody, concluding that her resolution was “thorough and well reasoned.” See Breslin, No. 08-2236 (E.D. Pa. Oct. 21, 2009).

We agree with the approach taken by Judge Brody and Judge McLaughlin. The determination of whether Defendants are CRAs is a fact-specific inquiry. Discovery will be of assistance in reaching the ultimate determination.

Plaintiff's current allegations are sufficient to permit a reasonable inference that in exchange for compensation Defendants assembled and evaluated information on consumers bearing on their creditworthiness for third parties and that they used facilities of interstate commerce to furnish their reports. These allegations are sufficient to permit further discovery on the issue.

attorney fees - EAJA - "substantially justified"

Williams v. Astrue - 3d Cir. - April 2, 2010


http://www.ca3.uscourts.gov/opinarch/091471p.pdf


The government's position was found to be substantially justified when the "District Court found just one error with the ALJ’s decision and that particular error is inconsequential, as the ALJ had the ability to reach the same conclusion on remand based on other evidence in the record."


This opinion was published on the Commissioner's motion http://www.ca3.uscourts.gov/opinarch/091471po.pdf