consumer - arbitration - motion to compel rejected

Schwartz v. Credit One – ED Pa. – October 14, 2015

 

https://www.paed.uscourts.gov/documents/opinions/15D0892P.pdf

 

Plaintiff sued Defendant under the Telephone Consumer Protection Act, 47 USC 227 et seq., for its repeated telephone calls to her concerning her son’s credit car account with Defendant, with whom Plaintiff also had an account.

 

The court rejected Defendant’s motion to compel arbitration, since the parties’ agreement concerned only their contractual disputes and not any concerning a dispute between Defendant and Plaintiff’s son.

 

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If the case is old, the link may have become stale and may not work, but you can use the case and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

custody - pre-trial statement - witness list - Rule 1915.4-4

Order      http://www.pacourts.us/assets/opinions/Supreme/out/633civ.pdf?cb=1

 

Rule        http://www.pacourts.us/assets/opinions/Supreme/out/633civ-attach.pdf?cb=1

 

Explanatory comment  

http://www.pacourts.us/assets/opinions/Supreme/out/633civ-rpt.pdf?cb=1

 

 

                                                                     EXPLANATORY COMMENT

 

 

In 2013, the Domestic Relations Procedural Rules Committee (the “Committee”) recognized there was a wide disparity in pre-trial procedures in custody cases among

the various judicial districts. By adopting this rule, the Supreme Court established uniform state-wide pre-trial procedures in custody cases. With an eye toward reducing

custody litigation, the rule encourages early preparation and court involvement for purposes of expedited resolutions. The rule was based upon the pre-trial procedures in

divorce cases as set forth in Pa.R.C.P. No. 1920.33(b). The rule does not affect, however, the First Judicial District's practice of conducting a pre-trial conference upon

the filing of a motion for a protracted or semi-protracted trial.

 

In 2015, the Committee expressed concern the rule as previously adopted by the Supreme Court allowed for an interpretation contrary to the intent of the rule. The

Committee proposed and the Court adopted an amendment to the rule to clarify the rule’s mandate as it relates to witnesses. As a goal of any pre-trial conference is to

settle the case, in whole or in part, the Committee believed a best practice in reaching that goal is having a thorough knowledge of the case, including the substance of

anticipated witness testimony. As amended, the rule plainly states that counsel or a self-represented party is required to discuss with the witness their testimony prior to

including the witness on the pre-trial statement.

 

Unlike Pa.R.C.P. No. 1920.33(b), the rule does not require inclusion of a summary of the witness’s testimony in the pre-trial statement; but rather, an affirmation

by counsel or self-represented party that there was actual communication with each witness about the witness’s testimony. With the additional information from witnesses,

counsel, self-represented parties and the trial court can better engage in more fruitful settlement discussions at the pre-trial conference.

 

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(b)(2)  Inclusion of a witness on the pre-trial statement constitutes an affirmation that the party’s counsel or the self-represented party has communicated with the

witness about the substance of the witness’s testimony prior to the filing of the pre-trial statement

 

 

UC - notice of ineligibility/overpayment - late notice

Grimm v. UCBR – Cmwlth. Court – October 28, 2015 – unreported memorandum decision

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2265CD14_10-28-15.pdf?cb=1

 

Claimant argues that he was prejudiced by the Department’s delay of five months in issuing the notices of determination to inform Claimant that he was ineligible for unemployment compensation benefits and was subject to a fault overpayment and penalty weeks while he continued to receive benefits. However, Claimant did not raise this issue of timeliness of the notices before the referee, and therefore the issue is waived. Grever, 989 A.2d at 402 (“Issues not raised at the earliest possible time during a proceeding are waived.”).

 

Furthermore, the Law does not impose a deadline on the Department to issue notices of determination; instead, Section 501 of the Law requires that the Department “promptly examine” each claim for benefits and notify the claimant in writing if a claim is determined to be invalid.6 43 P.S. § 821(c)(1), (2). Here, that is exactly what happened: the Service Center collected questionnaires from Employer and Claimant regarding Claimant’s separation and also conducted telephonic interviews with Employer and Claimant prior to issuing the notices of determination.

 

6 Timely notice is one of the essential elements of due process; however, “timely notice” for the purpose of procedural due process requires that notice “sufficiently precedes a hearing so as to give the accused enough time to prepare a defense.” Howell v. Bureau of Professional and Occupational Affairs, State Board of Psychology, 38 A.3d 1001, 1008 (Pa. Cmwlth. 2011).  

 

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An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

If the case is old, the link may have become stale and may not work, but you can use the case and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

admin. law - agency interpretation of statute - level of deference

Lancaster County v. PLRB – Pa. Supreme Court – October 27, 2015

 

http://www.pacourts.us/assets/opinions/Supreme/out/J-15A_B-2015mo.pdf?cb=1

 

To the extent the issues before us concern statutory interpretation, i.e., a legal standard, we note:

 

[A]n administrative agency’s interpretation [of a statute] is be to given

‘controlling weight unless clearly erroneous.’ However, when an

administrative agency’s interpretation is inconsistent with the statute itself,

or when the statute is unambiguous, such administrative interpretation

carries little weight. Appreciating the competence and knowledge an

agency possess in its relevant field, our Court [has] opined that an appellate

court ‘will not lightly substitute its judgment for that of a body selected for its

expertise whose experience and expertise make it better qualified than a

court of law to weigh facts within its field.’ Moreover, we have emphasized

that this high level of deference is especially significant in the complex area

of labor relations.  Lancaster County v. PLRB, ___ Pa. ___, 94 A.3d 979, 986 (2014) (quotations and

citations omitted).

 

Although the Board’s interpretation of the statute is consistent with [the statute], and  thus should be given due deference, the Commonwealth Court effectively substituted, without justification, its own judgment [over that of the agency] .  See Lancaster County, ___ Pa. at ___, 94 A.3d at 986.  The Commonwealth Court’s holding. . . contravenes the plain language of [the statute] , and since there is no indication the Board’s interpretation is clearly erroneous, it should be given controlling weight. See id.

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If the case is old, the link may have become stale and may not work, but you can use the case and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

 

 

arbitration - NAF designation - severability

Wert v. Manor Care of Carlisle – Pa. Supreme Court – 10-27-15

 

http://www.pacourts.us/assets/opinions/Supreme/out/J-24-2015oajc%20-%201024134215570705.pdf?cb=1

 

 

Golden Living Center - Gettysburg et al. (“Appellants”) appeal the Superior Court’s decision affirming, in relevant part, the trial court’s order overruling Appellants’ preliminary objections seeking to compel arbitration and reserving for trial the underlying

negligence action filed by Evonne K. Wert (“Appellee”), daughter of Anna E. Kepner (“Decedent”) and executrix of Decedent’s estate. For the following reasons, we affirm the order of the Superior Court and remand to the trial court for further proceedings

consistent with this decision.

 

The following issues of first impression have been presented before this Court:

 

(a) Whether the Superior Court’s decision in Stewart v.

GGNSC-Canonsburg, L.P., 9 A.3d 215 (Pa. Super. 2010), holding that the

NAF Designation voided an identical Arbitration Agreement, was

incorrectly decided and should be reversed, where there is no evidence

indicating that the NAF designation was integral to the Agreement?

 

(b) Whether the Court may ignore undisputed testimonial evidence that

the party seeking to void the Agreement did not consider the NAF

Designation to be an “integral part” of the Arbitration Agreement (because

she did not bother to read the agreement)?

 

Wert v. ManorCare of Carlisle PA, LLC, 95 A.3d 268, 268-69 (Pa. 2014) (per curiam

order) (footnote omitted).

 

Pursuant to the reasoning of the Stewart court and the majority of our sister jurisdictions, we find that, post-consent decree, Section five of the FAA cannot preserve

NAF-incorporated arbitration agreements unless the parties made the NAF’s availability  non-essential by specifically varying the terms of its procedure.17 Regardless of

whether Section five may apply where there is a lapse in the administrator, by its own rules, the NAF must administer its code unless the parties agree to the contrary. The

parties here agreed that any disputes “shall be resolved exclusively by binding arbitration to be conducted . . . in accordance with the [NAF] Code of Procedure, which is

hereby incorporated into this Agreement[.]” R. 348a (emphasis added).

 

We therefore find the provision integral and non-severable. Doing otherwise would require this Court to rewrite the Agreement. Underlying FAA policy, as interpreted by the Supreme Courtin Marmet, does not mandate a different result because our conclusion is based on settled Pennsylvania contract law principles that stand independent of arbitration.

 

UC - late appeal - confusion - UCSC mishandling - nunc pro tunc allowed

Victoria v. UCBR – Cmwlth. Court – October 14, 2015 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1809CD14_10-14-15.pdf?cb=1

 

Because the current status of the claimant’s case was “entirely unclear” due to numerous and sometimes conflicting notices, the Court found “persuasive a recent decision by this court, Walsh v. Unemployment Compensation Board of Review, (Pa. Cmwlth., No. 1248 C.D. 2012, filed May 13, 2013), 2013 Pa. Commw. Unpub. LEXIS 374” and held that  as a result of the service center’s mishandling of her claim, the claimant was understandably confused which led to “misstep[s] in her attempts to navigate her way through the Service Center’s errors.”

 

The court held that the circumstances constituted a breakdown in the administrative process and allowed the claimant’s untimely appeal.10  10 See also Carr v. Unemployment Comp. Bd. of Review, (Pa. Cmwlth., No. 662 C.D. 2014, filed December 19, 2014), 2014 Pa. Commw. Unpub. LEXIS 728   The UCSC mishandling of the claim constitutes a breakdown in the administrative process warranting a nunc pro tunc appeal.

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An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

If the case is old, the link may have become stale and may not work, but you can use the case and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

consumer - Telephone Consumer Protection Act - standing - regular user

Leyse v. Bank of America National Assn. – 3d Circuit – October 14, 2015

 

http://www2.ca3.uscourts.gov/opinarch/144073p.pdf

 

A “regular user” of a phone line, such as the roommate of the intended recipient of a robocall advertising for credit cards, held to have  standing to sue under the TCPA, 47 USC 227, even though the roommate was not the “called party” or “intended recipient.”

 

The TCPA, 47 U.S.C. § 227, as well as its associated regulations prohibits any person from, among other things, “initiat[ing] any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the FCC.”

 

The court held that the roommate came within the “zone of interests’ that the TCPA was meant to protecr, given the interests and purposes of the statute.  It held that the evidence made it  “clear that the Act’s zone of interests encompasses more than just the intended recipients of prerecorded telemarketing calls. It is the actual recipient, intended or not, who suffers the nuisance and invasion ofprivacy. This does not mean that all those within earshot of an unwanted robocall are entitled to make a federal case out of it. Congress’s repeated references to privacy convince us that a mere houseguest or visitor who picks up the phone would likely fall outside the protected zone of interests. On the other hand, a regular user of the phone line who occupies the residence being called undoubtedly has the sort of interest in privacy, peace, and quiet that Congress intended to protect.

wages - payroll records - injunction - pre-emption

Martinez v. CFM Corp. – Pa.Superior – October 7, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A19003-15o%20-%201023867985473186.pdf?cb=1

 

Trial court not pre-empted by federal law from enjoing payroll services firm from issuing new W-2 forms for class of attendant caregivers for MA recipients.  Class alleged screw-up of payroll records and violations of Wage Payment and Collection Law and contract violations.

 

UC - willful misconduct - absence - pre-trial incarceration

Miller v. UCBR – Cmwlth. Court – October 9, 2015 –


order directing opinion to be reported http://www.pacourts.us/assets/opinions/Commonwealth/out/2282CD14ORD_12-23-15.pdf?cb=1

 

opinion 
http://www.pacourts.us/assets/opinions/Commonwealth/out/2282CD14_10-9-15.pdf?cb=1

 

Case remanded where claimant was absent from work for two weeks during pre-trial incarceration on charge of violation of his probation, where

 

            - claimant, by his wife, gave employer notice of the incarceration

 

            - claimant was found not guilty of having violated his probation

 

“Absenteeism alone, while grounds for discharge, is not a sufficient basis for denial of unemployment benefits. An additional element, such as lack of good cause for absence, is necessary.” Runkle v. UCBR, 521 A.2d 530, 531 (Pa. Cmwlth. 1987). Factors that are considered in determining whether absenteeism constitutes willful misconduct are: (1) excessive absences; (2) failure to notify the employer in advance of the absence; (3) lack of good or adequate cause for the absence; (4) disobedience of existing company rules, regulations, or policies with regard to absenteeism; and (5) disregard of warnings regarding absenteeism. Petty v. Unemployment Compensation Board of Review, 325 A.2d 642, 643 (Pa. Cmwlth. 1974).

 

The predominate issue in this case . . ..is whether Claimant had good cause for the absences so as to preclude or negate a finding of willful misconduct. See Medina v. UCBR, 423 A.2d 469, 471 (Pa. Cmwlth. 1980). The concept of “good cause” has been characterized as an action of the employee that is justifiable or reasonable under all the circumstances.   “Absence from work due to pre-trial incarceration is not, itself, willful misconduct.” Bruce v. UCBR, 2 A.3d 667, 671 (Pa. Cmwlth. 2010) (citing Hawkins, 472 A.2d at 1192).

 

Pursuant to Hawkins, Wertman, and Bruce, the dispositive issue in this case is whether Claimant violated his probation. . . . The docket entries are vague and do not demonstrate conclusively that Claimant was found not to have violated the terms of his probation.

Here, the Board disregarded Claimant’s testimony, determined for itself that Claimant violated probation, and, in doing so, overlooked the critical fact that a criminal trial court had already ruled on the probation case.  Notably, the Board did not make any specific credibility determination with respect to Claimant’s testimony that the criminal trial court found that he did not violate the terms of his probation. Where the Board fails to make necessary findings and credibility determinations, we must remand to the Board.

 

Accordingly, we vacate the Board’s order and remand for the Board to determine the credibility of Claimant’s testimony that the criminal trial court found that he did not violate his probation and for additional finding(s) based upon that credibility determination. Because the outcome of the criminal trial court case is absolutely vital to determining whether Claimant violated his probation, on remand, the Board, on its own or on further remand to a referee, shall provide Claimant with the opportunity to submit court documentation – e.g., a court order, a hearing transcript, etc. – to prove that the trial court found that he did not violate probation. . . . .The Board shall then issue a new decision that accounts for its credibility determination and additional finding(s) of fact.

 

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Pa. R.A.P.  3716; 210 Pa. Code § 69.414 (a) Citing Judicial Opinions.  (a) Parties may...cite an unreported panel decision of this court issued after January 15, 2008, for its persuasive value, but not as binding precedent.