Wednesday, May 23, 2012

UC - voluntary quit - follow-the-spouse - newly-married couple

Pa. Gaming Control Board v. UCBR - Cmwlth. Court - May 23, 2012 (2-1 decision)

Facts - Claimant was last employed in August 2010, as a full-time administrative assistant for the Pennsylvania Gaming Control Board. She began dating her future spouse in May of 2008. In August of 2008, her future spouse enlisted in the United States Coast Guard, which sent him to Louisiana, where he was stationed and purchased a residence. In May, 2010, the claimant was married to her spouse. In August 2010, the claimant voluntarily resigned her employment to relocate to Louisiana to be with her spouse. The claimant and her spouse had an insurmountable commuting distance. The claimant and her spouse could not afford to maintain two residences.

The court rejected the Employer's argument that the follow-the-spouse rule does not apply at all, because Claimant’s husband relocated to Louisiana before the couple married. Employer’s argument ignored the fact that under Schechter v. UCBR, 491 A.2d 938 (Pa. Cmwlth. 1985), the "follow-the-spouse" doctrine is applicable to a situation where a claimant begins a marriage living apart from a spouse and later moves to be with the spouse, provided that necessitous and compelling reasons otherwise exist for the move. In such an instance, whether a spouse relocated prior to the marriage is irrelevant to the analysis. Here, it is similarly irrelevant that Claimant’s spouse relocated at a time prior to the couple’s marriage.

The Court also held that claimant showed a nececessitous and compelling reason to locate, under the Schlecter analysis. She showed an economic hardship, an insurmountable commuting distance, and that the move was for reasons beyond mere personal choice. Thus, although Claimant was not required to establish that her spouse’s relocation was beyond her control, she, nevertheless, still was required to and did establish that her own relocation to Louisiana following her marriage was for necessitous and compelling reasons and not merely due to personal preference.

The Board specifically found that an "insurmountable commuting distance" existed, the couple "could not afford to maintain two residences" (as Claimant was not maintaining a residence while she lived in Pennsylvania with her parents), and that Claimant’s spouse "was relocated by the United States Coast Guard to Louisiana where he was currently stationed and purchased a residence." Although Claimant’s testimony reveals that her decision to relocate to where her husband was currently stationed involved some personal preference, Claimant’s testimony revealed that the other factors identified above (i.e., economic hardship and insurmountable commuting distance) also played a role in her decision. Based upon those factors, it is apparent that Claimant acted reasonably and with good faith in making her decision to relocate. The Board, therefore, did not err in concluding that cause of a necessitous and compelling nature existed for Claimant to voluntarily terminate her employment.

consumer - UDAP - deceptive or misleading conduct v. fraud - pleading

Bennett v. A.P. Masterpiece Homes - Superior Court - March 6, 2012

Held: Plaintiff in a consumer protection case alleging misleading or deceptive conduct need not plead or prove elements of common law fraud, reversing a line of contrary Superior Court decisions.

The UTPCPL provides a private right of action for anyone who “suffers any ascertainable loss of money or property” as a result of an unlawful method, act or practice. 73 P.S. § 201-9.2(a).

Section 201-2(4) lists twenty enumerated practices which constitute actionable “unfair methods of competition” or “unfair or deceptive acts or practices.” 73 P.S. § 201-2(4)(i)-(xx). The UTPCPL also contains a catchall provision at 73 P.S. § 201-2(4)(xxi).

The pre-1996 catchall provision prohibited “fraudulent conduct” that created a likelihood of confusion or misunderstanding. 73 P.S. § 201-2(4)(xvii). In 1996, the General Assembly amended the UTPCPL and revised Section 201-2(4)(xxi) to add “deceptive conduct” as a prohibited practice. Act of Dec. 4, 1996, P.L. 906, No. 146, § 1 (effective Feb. 2, 1997). The current catchall provision proscribes “fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi) (emphasis added).

Under this "catchall" provision, a plaintiff does not need to allege or prove common law fraud. The court rejected its own decisions which continued to apply pre-amendment law that required pleading and proving the element of fraud, such as. Ross v. Foremost Ins. Co., 998 A.2d 648 (Pa.Super. 2010) (stating catchall section requires proof of common law fraud); Colaizzi v. Beck, 895 A.2d 36 (Pa.Super. 2006) (stating same); Booze v. Allstate Ins. Co., 750 A.2d 877 (Pa.Super. 2000), appeal denied, 564 Pa. 722, 766 A.2d 1242 (2000) (stating same); Skurnowicz v. Lucci, 798 A.2d 788 (Pa.Super. 2002) . Despite the addition of language regarding deceptive conduct, these post-amendment cases do not discuss the 1996 amendment in any detail, or consider what effect it might have on the catchall provision.

Commonwealth Court decisions - The Superior Court adopted the holding in the contrary line of case from Commonwealth Court. See, e.g., Commonwealth v. Percudani, 825 A.2d 743, 746-47 (Pa.Cmwlth. 2003) (holding 1996 Amendment to Section 201-2(4)(xxi) provides liability for deceptive conduct). These cases view the 1996 addition of “deceptive conduct” as substantively altering the catchall provision and allowing for liability based on the less restrictive standard of “deceptive conduct.” Com. ex rel. Corbett v. Manson, 903 A.2d 69, 74 (Pa.Cmwlth. 2006) (permitting catchall liability for deceptive conduct and rejecting Superior Court’s continued interpretation of Section 201-2(4)(xxi) as requiring proof of common law fraud). See also Com. v. TAP Pharmaceutical Products, Inc., ___ A.3d ___, 2011 WL 4056170 (Pa.Cmwlth. 2011) (stating Commonwealth Court has adopted “deceptive” standard under post-amendment catchall section of UTPCPL because language of 1996 amendment signaled approval of less restrictive pleading requirements); Pennsylvania Dept. of Banking v. NCAS of Delaware, LLC, 995 A.2d 422, 433 n.28 (Pa.Cmwlth. 2010) (applying “deceptive” standard for catchall provision and outlining split in interpretations of statute by Commonwealth and Superior Courts). In rejecting this Court’s postamendment interpretation of the catchall provision, the Commonwealth Court found Skurnowicz inapplicable to post-amendment cases because Skurnowicz did not acknowledge the 1996 amendment and relied on preamendment case law to hold the catchall section required proof of common law fraud.

Federal court decisions - Most Pennsylvania federal courts similarly concluded the 1996 amendment lessened the degree of proof required under the UTPCPL catchall provision. See Schnell v. Bank of New York Mellon, ___ F.Supp.2d ___, 2011 WL 5865966 (E.D.Pa. Nov. 22, 2011) (stating deceptive conduct is sufficient to satisfy catchall provision); Vassalotti v. Wells Fargo Bank, N.A., 732 F.Supp.2d 503, 510 n.7 (E.D.Pa. 2010) ; Wilson v. Parisi, 549 F.Supp.2d 637 (M.D.Pa. 2008); Chiles v. Ameriquest Mortg. Co., 551 F.Supp.2d 393, 398-99 (E.D.Pa. 2008). Like the Commonwealth Court, the federal courts examining this issue were persuaded by the revised statutory language of the catchall provision and our Supreme Court’s directive to read the UTPCPL broadly. Seldon v. Home Loan Services, Inc., 647 F.Supp.2d 451, 469 (E.D.Pa. 2009). Accord Genter v. Allstate Property and Cas. Ins. Co., 2011 WL 2533075 (W.D.Pa. June 24, 2011); Haines v. State Auto Property and Cas. Ins. Co., 2009 WL 1767534 (E.D.Pa. June 22, 2009); Flores v. Shapiro & Kreisman, 246 F.Supp.2d 427 (E.D.Pa. 2002); In re Patterson, 263 B.R. 82 (Bankr.E.D.Pa. 2001). Federal court generally declined to follow the Superior Court’s post-Amendment precedent because the Superior Court cases relied on pre-amendment interpretations of the catchall section without acknowledging the 1996 amendment. Seldon, supra at 469; Cohen v. Chicago Title Ins. Co., 242 F.R.D. 295 (E.D.Pa. 2007) (rejecting post-amendment cases from Superior Court because they rely on authority that interpreted preamendment catchall provision).