SSD - age categories - no mechanical application

Rodriguez v. Astrue – ED Pa. – January 27, 2014

http://www.paed.uscourts.gov/documents/opinions/14D0060P.pdf

Held:  A plaintiff who is six months and one day from an older age category presents a borderline age situation that requires remand for consideration by the magistrate judge.  The ALJ must make an individualized determination as to whether plaintiff is more appropriately a “younger person” or a “person closely approaching advanced age.”

When describing how the age ranges will be applied, the regulations state:

We will not apply the age categories mechanically in a borderline situation. If you are within a few days to a few months of reaching an older age category, and using the older age category would result in a determination or decision that you are disabled, we will consider whether to use the older age category after evaluating the overall factors of your case.  20 C.F.R. §§ 404.1563(b), 416.963(b) (emphasis added).

The United States Court of Appeals for the Third Circuit has held that the district court should remand if (1) the ALJ mechanically applied an age category in a borderline case and (2) the borderline age analysis could change the ALJ’s determination of disability. Kane v. Heckler, 776 F.2d 1130, 1133–34 (3d Cir. 1985). An ALJ must make an individualized determination in a “borderline situation” because the “assumption [that individuals in certain age ranges have certain capabilities] becomes unreliable and a more individualized determination is necessary.” Id. at 1133.

At the time of the ALJ’s decision, plaintiff was sixth months and one day from her fiftieth birthday. Had the ALJ considered plaintiff to be “closely approaching advanced age” instead of a “younger person,” plaintiff would have been found disabled. R&R at 7–8. Thus, the question is whether six months and one day presents a borderline age case. If so, the case must be remanded to the ALJ for an individualized determination about what age range applies to plaintiff upon consideration of the overall factors in her case.

There is no test to determine when an applicant is “a few days or a few months” from an older age category. The Third Circuit held that a claimant who was fifty-four days from his fiftieth birthday presented a borderline age case. Kane, 776 F.2d at 1133. “Nine months appears to represent the outer perimeter of what constitutes a borderline case in the District Courts of the Third Circuit.” Ludvico v. Astrue, No. 08-322, 2008 WL 5134938, at *11 (W.D. Pa. Dec. 5, 2008). District courts in the Eastern District of Pennsylvania have found that claimants who are six months and three days from a higher age range present a borderline age case. Anderson v. Astrue, No. 12-4114 (E.D. Pa. Apr. 3, 2013) (order approving and adopting the report and recommendation of Magistrate Judge Timothy R. Rice) (finding a borderline age case when claimant was six months and three days from turning fifty); Copeland v. Astrue, No. 10-1482 (E.D. Pa. Nov. 22, 2010) (order approving and adopting the report and recommendation of Magistrate Judge Linda K. Caracappa) (finding a borderline age case when claimant was six months and three days from turning fifty-five); see also Williams v. Bowen, No. 86-3763, 1987 WL 9148, at *2 (E.D. Pa. Apr. 6, 1987) (finding that seven months was borderline).

This Court concludes that a plaintiff who is six months and one day from an older age category presents a borderline age situation that requires remand for consideration by the magistrate judge. On remand, the ALJ must make an individualized determination as to whether plaintiff is more appropriately a “younger person” or a “person closely approaching advanced age.”

admin. appeals - multiple cases - single, consolidated appeal v. individual appeals - nunc pro tunc appeal - procedural defect not jurisdictional

Alma v. Board of Assessment Appeals – Cmwlth Court – January 8, 2014

http://www.pacourts.us/assets/opinions/Commonwealth/out/1132CD13_1-8-14.pdf?cb=1

Appellants from 157+ assessment appeal cases were allowed to appeal nunc pro tunc where they improperly had filed a single consolidated appeal. 

Property owners were permitted to file amended appeals beyond the statutory appeal period where they had jointly filed a single Notice of Appeal from the Board’s 157 separate decisions.  They were allowed to file individual amended appeals beyond the mandated statutory period for  filing such appeals.  The issues raised and the facts involved in the 158 appeals were alleged to be similar, and the Board allowed the appeals to be consolidated for hearing purposes only. The Board ultimately denied the assessment appeals, and sent individual notices of denial, along with individual notices of the right to appeal to each of the Property Owners.

The defect in this case is procedural, and therefore curable, not jurisdictional.  As a general rule, ‘[t]aking one appeal from separate judgments is not acceptable practice and is discouraged.’ In TCPF, L.P. v. Skatell, 976 A.2d 571 (Pa. Super. 2009), [our Superior] Court was presented with the same procedural defect involved in the instant appeal, i.e., the appellant’s filing of a single notice of appeal from two separate trial court orders and the subsequent filing of an untimely amended notice of appeal. The Skatell Court denied the appellee’s motion to quash the appeal, holding that ‘where . . . Appellant filed a timely, albeit discouraged, appeal of multiple orders and filed a subsequent amended appeal, no fatal defect exists and the mandates of judicial economy require that the appeal be heard.’ Sulkava v. Glaston Finland Oy, 54 A.3d 884, 888 (Pa. Super. 2012) (citations omitted and emphasis added).

PFA - non-consensual sex

Boykai v. Young – Superior Court – January 7, 2014

http://www.pacourts.us/assets/opinions/Superior/out/J-S68013-13o%20-%201016704021871106.pdf?cb=1

The relevant question is whether the alleged victim consented to sexual intercourse. To that end, the PFA Act supports a finding of abuse regardless of whether the sexual intercourse at issue is the result of forcible compulsion, or is simply non-consensual. See 23 Pa.C.S. § 6102.

car repo - improper notice - UCC consumer remedies - statute of limitations

Cubler et al. v. Trumark Financial Credit Union - Dec. 20, 2013 - Superior Court

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A23032-13o%20-%201016568821847567.pdf?cb=1

Consumer remedies under UCC, 13 Pa. C.S. 9625, are subject to the general 6-year statute of limitations under 42 Pa. C.S. 5527(b) and not the 2-year SOL under 42 Pa. C.S. 5524)5), which governs "actions upon a statute for a civil penalty or forfeiture."  The remedies under sec. 9625 are compensatory and not penal.

The court held that the reasoning of the Pennsylvania Supreme Court in the analogous case of Pantuso Motors, Inc. v. Corestates Bank, N.A., 798 A.2d 1277, 1281 (Pa. 2002);  should guide its analysis, and lead to a determination that a plain reading of the unambiguous language of section 9625 reveals that it is a remedial statute intended to compensate aggrieved debtors/obligors for their losses.

The court held that it  must provide “substantial weight” to the fact that, in drafting section 9625, the General Assembly specifically chose to use the word “[r]emedies” in the heading of the statute. See Pantuso Motors, 798 A.2d at 1282; see also 1 Pa.C.S.A. § 1924. Furthermore, the relevant provisions involved in this case, 13 Pa.C.S.A. § 9625(c)(2) and (e)(5), both specifically provide for “recover[y]” of “statutory damages.” Id. Importantly, the language of section 9625 does not contain any reference to penalties of any sort. Accordingly, it would be anomalous for this Court to declare that a statute that the General Assembly has specifically designated as being remedial, and which expressly provides for recovery of statutory damages, is, in fact, a civil penalty or forfeiture. See Pantuso Motors, 798 A.2d at 1283.

See also 1 Pa.C.S.A. § 1921(b) (rule of statutory construction providing that where, as here, “the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”). Moreover, a determination that the statutory damages provided for in section 9625 are intended to be compensatory and not penal in nature is supported by section 1305 of the UCC. Section 1305 provides that “neither consequential or special damages nor penal damages may be had except as specifically provided in this title or by other rule of law.” 13 Pa.C.S.A. § 1305(a) (emphasis added). Furthermore, section 9625 provides a damages formula that is expressly linked to the aggrieved party’s injury, not to the degree of the offending party’s culpability, which is a feature inherent in penalties. See, e.g., 13 Pa.C.S.A. § 9625(b) (providing that “a person is liable for damages in the amount of any loss caused by a failure to comply with this division”); id. § 9625(c)(2) (providing that an aggrieved debtor/obligor is entitled to an award “not less than the credit service charge plus 10% of the principal amount of the obligation or the time price differential plus 10% of the cash price.”). Finally, like   the circumstances presented in Pantuso Motors, even if the imposition of statutory damages.  Finally, like the circumstances presented in Pantuso Motors, even if the imposition of statutory damages under section 9625 may have the effect of encouraging compliance with the provisions of Article 9, the General Assembly intended such damages to serve primarily to compensate aggrieved claimants, not as a penalty against  offending parties. See Pantuso Motors, 798 A.2d at 1283-84.