Wednesday, April 21, 2010

custody - reliance on custom, practice, usage not permitted

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

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





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,"


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.


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

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

“[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

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.