admin. law - body that did not hear case CAN decide facts w/o violating due process

Graff v. DPW - Cmwlth. Court - November 21, 2011 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/176CD11_11-21-11.pdf

Claimant contends that the Secretary lacked authority to alter the ALJ‟s factual finding that she was permanently disabled by her work injury. The Department counters that the Secretary is vested with final fact-finding authority, and, thus, error did not occur.

In Siemon’s Lakeview Manor Estate v. DPW, 703 A.2d 551, 553-554 (Pa. Cmwlth. 1997), the Secretary reversed the factual findings of the Bureau in holding that a nursing facility was not entitled to reimbursement of certain costs associated with nursing care services. The nursing facility appealed to this Court, claiming that the Secretary did not have authority to reverse the Bureau's factual findings.

In deciding this legal issue, we reviewed the applicable statutes and regulations. Section 206 of the Administrative Code of 1929, provides that the Secretary of Public Welfare shall "personally" or through a "duly authorized agent" carry out his duties as agency head. 71 P.S. § 66. The General Rules of Administrative Practice and Procedure, which govern hearings before state agencies, such as the Department, authorize the "agency head" to personally conduct hearings or to appoint a presiding officer to conduct hearings. 1 Pa. Code §§35.123, 35.185. Here, the legislature has expressly made "the Secretary" the "head" of the Department. 71 P.S. §66. Consistent with these principles, we held that even though the Secretary did not view the demeanor of witnesses, this did not preclude the Secretary from exercising final fact-finding authority.

Again, in A.O. v. Department of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003), we reiterated that the Secretary, as the agency head, is vested with fact-finding authority. We further explained as follows:

While a fact finder‟s observation of the demeanor of a witness has traditionally been viewed as an important factor in determining credibility, administrative adjudicators are permitted to determine the credibility of testimony from the reading of a transcript. Administrative agencies often use a system of adjudication where a hearing examiner or presiding officer takes evidence and the ultimate fact finder is a board or commission, which has the power to make findings of fact based solely on a review of the record. See, e.g., Kramer v. Department of Insurance, 654 A.2d 203 (Pa. Cmwlth. 1995) (presiding officer conducted an evidentiary hearing, but the adjudication was issued by the Insurance Commissioner); … An adjudicative method where the ultimate decision in a case is made by an administrative fact finder who did not hear the testimony does not deny a litigant due process of law.

Id. at 38, n.5 (emphasis added) (citation omitted).

More recently in Duvall v Department of Corrections, 926 A.2d 1220 (Pa. Cmwlth. 2007), we considered whether the Secretary of Corrections could reject a hearing examiner‟s factual findings made in a hearing to determine eligibility for Heart and Lung benefits. The Secretary found that the claimant had fully recovered and was able to return to work. The claimant appealed to this Court, arguing that the Secretary could not make credibility determinations contrary to those of the hearing examiner. We disagreed, explaining that the hearing examiner was merely the designee of the Secretary, who was "the ultimate finder of fact in the instant matter" and able to make different credibility determinations. Id. at 1225.

We reject Claimant's contention that it was impermissible for the Secretary to make new factual findings, including credibility determinations, that differed from those of the administrative law judge appointed to take evidence and make the record for the Secretary. The contrary principle has been well established in legislation, regulations and case law precedent.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

consumer - CPL - fraud v. deceptive; parol evidence rule - ED Pa. case

Schnell v. Bank of New York - ED Pa. - November 21, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1284P.pdf

This state consumer protection law case concerms Plaintiff's claim that accuses the banks of first deceiving her and then pressuring her into accepting a mortgage she and her late husband could not afford. The CPL’s catch-all provision bars “[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 Pa. C.S. § 201-2(4)(xxi).

A plaintiff may succeed under the catch-all provision by satisfying the elements of common law fraud or by otherwise alleging deceptive conduct. Hunt v. U.S. Tobacco Co., 538 F.3d 217,
219 (3d Cir. 2008).5 Plaintiff explicitly references the Defendant Banks’ “deceptive acts” and therefore does not need to prove all of the elements of common-law fraud or meet the particularity requirement of Federal Rule of Civil Procedure 9(b). Seldon v. Home Loan Servs., Inc., 647 F. Supp. 2d 451, 469-70 (E.D. Pa. 2009) (citations omitted). Yet even under the less stringent standard, “a plaintiff must allege facts showing a ‘deceptive act,’ that is ‘conduct that is likely to deceive a consumer acting reasonably under similar circumstances.”’ Id. at 470 (citations omitted). Defendant BNY had no role vis-à-vis the origination of the loan, and Plaintiff fails to demonstrate how BNY could have deceived her into accepting the refinancing when it did not become the assignee until after the closing.

Defendant BOA, on the other hand, played a role in the origination of the disputed refinancing loan (via its acquisition of Countrywide). But to bring a private cause of action under the UTPCPL, Schnell must show that she “justifiably relied on the defendant’s wrongful conduct.” Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438 (Pa. 2004). Plaintiff's claim, however, is based on representations allegedly made by BOA and its agents prior to the signing of the refinancing contract. [emphasis added] As a result of Pennsylvania’s parol evidence rule, Plaintiff cannot be said to have justifiably relied on any precontractual representations. Id. at 502 Although the mortgage refinancing loan did not contain an integration clause, Plaintiff admits in her Complaint that she was aware of the higher interest rate and still signed the ontract.

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n. 5 Pennsylvania’s lower courts have split over whether or not the “deceptive conduct” prong has the same requirements or offers plaintiffs a lower standard. Seldon, 647 F. Supp. 2d at 468 (comparing Commonwealth v. Percudani, 825 A.2d 743, 746 (Pa. Commw. Ct. 2003) with Booze v. Allstate Ins. Co., 750 A.2d 877, 880 (Pa. Super. Ct. 2000)). Although the Pennsylvania Supreme Court has not yet spoken on the issue, courts in this district have held that the 1996 amendment to the catch-all provision of the UTPCPL added a prohibition on deceptive
conduct that permits plaintiffs to proceed without satisfying all of the elements of common-law fraud. See, e.g., Fingles v. Continental Cas. Co., No. 08-5943, 2010 WL 1718289, at *7 (E.D. Pa. Apr. 28, 2010); Seldon, 647 F. Supp. 2d at 468-71; Flores v. Shapiro & Kreisman, 246 F. Supp. 2d 427, 432 (E.D. Pa. 2002). I adopt their reasoning.

consumer - contract under seal - statute of limitations

Osprey Portfolio, Inc. v. Izett - Superior Court - November 21, 2011

http://www.pacourts.us/OpPosting/Superior/out/a21030_11.pdf

Guaranty under seal for related promissory note was an instrument under seal subject to 20-year statute of limitations (SOL) under 42 Pa. C.S. 5529(b)(1) rather than normal 4-year contract SOL, 42 Pa. C.S. 5525.

The guaranty, which had the pre-printed word "SEAL" next to the signature line, was "undisputedly signed under seal," * and was held to be an “'instrument' because it defines the rights, duties, entitlements, and liabilities of the parties involved, and therefore, the applicable statute of limitations is the twenty-year statute set forth in 42 Pa.C.S.A. § 5529(b)(1)."

* In re Estate of Snyder, 13 A.3d at 513 (holding that the twenty-year statute of limitations applied to the action and stating that “this Court has held, in accord with many cases written by our Supreme Court, that when a party signs an instrument which contains a pre-printed word ‘SEAL,’ that party has presumptively signed an instrument under seal.” (citation and brackets omitted)); see also Robert Mallery Lumber Corp. v. B. & F. Assocs., Inc., 440 A.2d 579, 582 (Pa. Super. 1982) (referring to a guaranty as an “instrument”); accord Marcucci v. H & L Developers, Inc., 2009 U.S. Dist. LEXIS 121769 at *21 (E.D. Pa. 2009)

social security disability - treating physician - clinical/home setting v. work setting

Callahan v. Astrue - ED Pa. - November 7, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1256P.pdf

Over defendant's objection, the court affirmed the Magistrate Judge's Report and Recommendation recommending that plaintiff’s Request for Review be granted and the case be remanded to defendant for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g).

The disputes before the Court primarily concern plaintiff’s mental impairments, including her history of alcohol and drug dependency, bipolar disorder, and severe depression.

Evidence that a claimant is doing well in treatment does not contradict a treating physician’s opinion that she is unable to work. “[T]he work environment is completely different from home or a mental health clinic. [A treating physician’s] observation[] that [a patient] is ‘stable and well controlled with medication’ during treatment does not support the medical conclusion that [the patient] can return to work.” Morales, 225 F.3d at 319. For that reason, a treating physician’s opinion that an individual cannot work may “not be supplanted by an inference gleaned from treatment records reporting on [plaintiff] in an environment absent of the stresses that accompany the work setting.” Id.; see also Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 356 (3d Cir. 2008) (reiterating “the distinction between a doctor’s notes for purposes of treatment and that doctor’s ultimate opinion on the claimant’s ability to work”); Nguyen v. Astrue, No. 06-3443, 2008 WL 200175, at *3 (E.D. Pa. Jan. 23, 2008) (holding that when an ALJ rejected a treating psychiatrist’s opinion based on clinical notes that the plaintiff was doing well on medication, the ALJ improperly “substitute[d] his clinical judgment for that of the treating psychiatrist”). The ALJ thus erred in rejecting the doctor's inability-to-work opinion on that basis.

Evidence that plaintiff sometimes performed domestic tasks such as caring for her children and doing chores does not contradict a doctor's opinion that she could not work. Defendant’s Objections omit plaintiff’s repeated statement that the domestic tasks occur only “on a good day[;] a lot of the time I’m unable to do these things so my friend or daughter drop my son off at daycare and I never get up.” This explanation by plaintiff is important. Plaintiff concedes that she might be able to sustain a full-time job for “a week or two” or even a month. However, “not too many bosses are willing to put up with [her]” when her bipolar disorder hits a “down stage.” The ALJ committed legal error when he refused to consider the doctor's opinion.

custody - relocation - consideration of all statutory factors

ED v. MP - Superior Court - November 9, 2011

http://www.pacourts.us/OpPosting/Superior/out/s54005_11.pdf

Which statute applies? - Because Father initiated his relocation request after the effective date of the new Act and Mother’s request for modification of the custody order followed, the provisions of the new Child Custody Act apply here.

Duty of court to consider statutory factors - The court agreed that the trial court failed to consider adequately the ten factors for relocation in section 5337(h), which mandates that the trial court shall consider all of the factors listed therein, giving weighted consideration to those factors affecting the safety of the child. 23 Pa.C.S.A. § 5337(h).

In this case, it cannot be ascertained from the record on appeal whether the trial court considered all of the section 5337(h) factors in reaching its decision. To the extent that the trial court did consider these factors, it did so in a cursory manner without references to the record or explanations for its conclusions.

UC - vol. quit - health reasons - able/available

Tracy v. UCBR - Cmwlth. Court - November 10, 2011 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/408CD11_11-10-11.pdf

To be eligible for benefits under Section 402(b) of the Law, a claimant must prove that the separation from employment was for a necessitous and compelling reason. Diehl v. UCBR, 4 A.3d 816 (Pa. Cmwlth. 2010), appeal granted, ___ Pa. ___, 20 A.3d 1192 (2011).

To meet that burden, the claimant must demonstrate circumstances which placed a real and substantial pressure upon him or her to terminate employment that would compel a reasonable person to act in the same manner. Smithley v. UCBR, 8 A.3d 1027 (Pa. Cmwlth. 2010). Whether the claimant's termination of employment was for a necessitous and compelling reason is a question of law subject to this Court's plenary review. W. & S. Life Ins. Co. v. UCBR, 913 A.2d 331 (Pa. Cmwlth. 2006).

Health problems, including an emotional or psychological disorder, can constitute a necessitous and compelling reason to terminate employment. Genetin v. UCBR, 499 Pa. 125, 451 A.2d 1353 (1982); Beattie v. UCBR, 500 A.2d 496 (Pa. Cmwlth. 1985). To establish a necessitous and compelling health reason for leaving employment, the claimant must: (1) present competent evidence of an adequate health reason justifying termination of employment; (2) have informed the employer of the health problems; and (3) be able and available to perform work which is not inimical to his or her health, if a reasonable accommodation is made by the employer. Ridley Sch. Dist. v. UCBR, 637 A.2d 749 (Pa. Cmwlth. 1994). The claimant, who has failed to meet any of these requirements, is ineligible for benefits. Ruckstuhl v. UCBR, 426 A.2d 719 (Pa. Cmwlth. 1981).

A necessitous and compelling health reason can be established by any competent medical or non-medical evidence. Cent. Data Ctr. v. UCBR, 458 A.2d 335 (Pa. Cmwlth. 1983). Claimant presented the evidence that she suffered from depression and anxiety. Claimant admitted, however, that she did not "tell …Employer that [she was] leaving because of health reasons." She was also required to demonstrate that she was able to work and available for suitable work, because the Law is not intended to provide health and disability benefits for ill employees. Section 401(d)(1) of the Law, 43 P.S. § 801(d)(1); Genetin. She was on a medical leave and was receiving disability benefits when she left her employment. Her treating physician did not release her to return to work because her condition prevented her from working in any kind of position with or without restrictions. Hence, Claimant failed to establish that she was able to work and available for suitable work.
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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

wages - FLSA - overtime - condit. class certified

Titchenell v. Apria Health Care - ED Pa. - Nov. 8, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1253P.pdf

Plaintiff Connie Titchenell filed this action against her former employer, defendant Apria Healthcare, Inc. (“Apria”), alleging that defendant violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.

She contends that, as a Customer Service Specialist, she worked ten to fifteen hours per week “off the clock” without compensation to meet defendant’s productivity demands. According to plaintiff, defendant had a company-wide policy or pattern of requiring Customer Service Specialists to work in excess of forty hours per week without overtime pay.

Presently before the Court is Plaintiff’s Amended Motion for Conditional Certification of Collective Class and to Facilitate Notice Pursuant to 29 U.S.C. § 216(b) For the reasons stated below, the Court grants plaintiff’s motion.

civil procedure - default judgments - opening

Kelly v. Siuma - Pa. Super. - November 3, 2011

http://www.pacourts.us/OpPosting/Superior/out/a31006_11.pdf

A petition to open a default judgment is an appeal to the equitable powers of the court. Absent an error of law or a clear, manifest abuse of discretion, it will not be disturbed on appeal.

An abuse of discretion occurs when a trial court, in reaching its conclusions, overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will. US Bank N.A. v. Mallory, 982 A.2d 986, 994 (Pa.Super. 2009)

Generally speaking, a default judgment may be opened if the moving party has (1) promptly filed a petition to open the default judgment, (2) provided a reasonable excuse or explanation for failing to file a responsive pleading, and (3) pleaded a meritorious defense to the allegations contained in the complaint. McFarland v. Whitham, 518 Pa. 496, 544 A.2d 929
(1988); Seeger v. First Union National Bank, 836 A.2d 163 (Pa.Super. 2003).

Where a petition to open is filed within ten days of the entry of judgment and is accompanied by a proposed answer offering a meritorious defense, the court shall open the judgment. See Estate of Considine v. Wachovia Bank, 966 A.2d 1148 (Pa.Super. 2009).

The timeliness of a petition to open a judgment is measured from the date that notice of the entry of the default judgment is received. The law does not establish a specific time period within which a petition to open a judgment must be filed to qualify as timely. Instead, the court must consider the length of time between discovery of the entry of the default judgment and the reason for delay. In cases where the appellate courts have found a “prompt” and timely filing of the petition to open a default judgment, the period of delay has normally been less than one month. See Duckson v. Wee Wheelers, Inc., 423 Pa.Super. 251, 620 A.2d 1206 (Pa.Super. 1993) (one day is timely); Alba v. Urology Associates of Kingston, 409 Pa.Super. 406, 598 A.2d 57 (Pa.Super. 1991) (fourteen days is timely); Fink v. General Accident Ins. Co., 406 Pa.Super. 294, 594 A.2d 345 (Pa.Super. 1991) (period of five days is timely). US Bank N.A., 982 A.2d at 995 (quotation omitted) (finding eighty-two day delay was not timely). See Myers v. Wells Fargo Bank, N.A., 986 A.2d 171 (Pa.Super. 2009) (indicating delay of fourteen days in filing petition to open was timely); Pappas v. Stefan, 304 A.2d 143 (Pa.Super. 1973) (fifty-five day delay was not prompt).

‘[W]hether an excuse is legitimate is not easily answered and depends upon the specific circumstances of the case. The appellate courts have usually addressed the question of legitimate excuse in the context of an excuse for failure to respond to the original complaint in a timely fashion.’ US Bank N.A., 982 A.2d at 995.