Thursday, June 19, 2014

abuse - expungement - indicated v. founded report - appeal - notice and oppty. to be heard in court proceeding

J.M. v. DPW – Cmwlth. Court – June 19, 2014

"Indicated" report of abuse by admin. agency was changed to "founded" after a court dependency hearing in which child was found to have been abused by stepfather, appellant here.  Stepfather appealed the administrative decision but not the court decision, as to which he claimed that he had not received notice.  Held:  hearing was necessary to deteermination whether stepfather had notice of the dependency hearing.

DPW may rely on the factual findings of the trial court in a dependency adjudication to dismiss an appeal for a request for expungement” of a founded report. K.R. v. Dep’t of Pub. Welfare, 950 A.2d 1069, 1078 (Pa. Cmwlth. 2008); see also C.S. v. Dep’t of Pub. Welfare, 972 A.2d 1254, 1263-64 (Pa. Cmwlth.) (holding, in case wherein petitioner was never specifically named as perpetrator of abuse in underlying dependency proceeding, that “a separate administrative hearing before BHA is not necessary if there is substantial evidence to support the findings made in the dependency proceeding that the appellant was the perpetrator of the abuse of the minor” (emphasis omitted)), appeal denied, 987 A.2d 162 (Pa. 2009)  

However, a founded report of child abuse constitutes an “adjudication” under the AAL, and pursuant to the AAL, “[n]o adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard.” J.G., 795 A.2d at 1092 (quoting 2 Pa. C.S. § 504). Because it is unclear whether J.M. was afforded these due process protections in the underlying dependency proceeding before the trial court, we conclude that BHA erred in denying J.M.’s appeal without a hearing.   See, J.G. v. Department of Public Welfare, 795 A.2d 1089 (Pa. Cmwlth. 2002), and K.R. v. Department of Public Welfare, 950 A.2d 1069 (Pa. Cmwlth. 2008).

The court vacated DPW’s order and remand the matter for a hearing on the limited issue of whether stepfather  had reasonable notice of the dependency hearing and an opportunity to be heard in that proceeding. If stepfather  was not provided with these due process protections, then the underlying dependency adjudication cannot serve as the basis for the founded report.

The stepfather's due process argument held not to be a collateral attack on the underlying dependency adjudication. Similar to the reasoning in R.F., the issue here is whether the underlying dependency adjudication is one upon which a founded report can be based. That is, his argument in this regard is not a challenge to the underlying dependency adjudication itself, but is instead a challenge to the use of that adjudication as support for a founded report absent due process. Nevertheless, if due process concerns are satisfied, then his second argument on appeal, relating to good cause, would constitute an impermissible collateral attack on the underlying dependency adjudication.  

If stepfather was afforded reasonable notice and an opportunity to be heard in the underlying dependency proceeding, but did not take advantage of that opportunity, then he would not be entitled to a hearing before BHA.  

contracts - duty of good faith and fair dealing - damages

MyServiceForce v. American Home Shield – ED Pa. – June 17, 2014

Good faith and fair dealing

A claim for a breach of the duty of good faith and fair dealing is a contract claim3 under which a plaintiff has to establish the following in order to succeed on its claim: “(1) the existence of a contract, (2) breach of the contract, and (3) damages which flow from the breach.” Life Care Ctrs. of Am., Inc. v. Charles Town Assocs. Ltd. P’ship, 79 F.3d 496, 514 (6th Cir. 1996). See also Sewer Auth. of City of Scranton v. Pa. Infrastructure Inv. Auth., 81 A.3d 1031, 1041-42 (Pa. Commw. Ct. 2013) (“The elements of a breach of contract are (1) the existence of a contract, (2) a breach of the duty imposed by the contract and (3) damages resulting from the breach.” (quoting Orbisonia-Rockhill Joint Mun. Auth. v. Cromwell Twp., 978 A.2d 425, 428 (Pa. Cmmw. Ct. 2009))).

3  Under both Pennsylvania and Tennessee law, a claim for breach of the duty of good faith and fair dealing is a breach of contract action. See McAllister v. Royal Caribbean Cruises, Ltd., Civ. A. No. 02-2393, 2003 WL 23192102, at *4 (E.D. Pa. Sept. 30, 2003) (citing Fraser v. Nationwide Mut. Ins. Co., 135 F. Supp. 2d 623, 643 (E.D. Pa. 2001); Blue Mountain Mushroom Co. v. Monterey Mushroom, Inc., 246 F. Supp. 2d 394, 400 (E.D. Pa. 2002)); see also Fountain Leasing, LLC v. Kloeber, Civ. A. No. 12-317, 2013 WL 4591622, at *4 (E.D. Tenn. Aug. 28, 2013) (stating that, under Tennessee law, a claim for breach of the implied covenant of good faith and fair dealing “serves as part of a breach of contract action rather than serving as a cause of action in and of itself.” (citing Lyons v. Farmers Ins. Exch., 26 S.W.3d 888, 894 (Tenn. Ct. App. 2000)).  

Moreover, in order to recover on its claim for breach of the duty of good faith and fair dealing, a plaintiff must prove damages resulting from the alleged breach with reasonable certainty. See ATACS Corp. v. Trans World Commc’ns, Inc., 155 F.3d 659, 669 (3d Cir. 1998) (stating that the general rule in Pennsylvania is that the injured party must prove damages from breach of contract with reasonable certainty (citations omitted))….

There are three “theories of damages to remedy a breach of contract: ‘expectation’ damages, ‘reliance’ damages, and ‘restitution’ damages.” ATACS, 155 F.3d at 669 (citing Trosky v. Civil Serv. Comm’n, 652 A.2d 813, 817 (Pa. 1995); Restatement (Second) of Contracts § 344 (1981)); see also Trosky, 652 A.2d at 817 (noting that remedies for breach of contract “are designed to protect either a party’s expectation interest ‘by attempting to put him in as good a position as he would have been had the contract been performed’ . . . ; his reliance interest ‘by attempting to put him back in the position in which he would have been had the contract not been made’; or his restitution interest ‘[by requiring] the other party to disgorge the benefit he has received by returning it to the party who conferred it’” (quoting Restatement (Second) of Contracts, § 344, Comment a))….