settlement agreements - enforcement

Thomas v. University of Pennsylvania - ED Pa. - October 2, 2007

http://www.paed.uscourts.gov/documents/opinions/07D1204P.pdf

Held, the parties entered into a binding settlement agreement of plaintiff's race discrimination case.

At a settlement conference, the parties agreed that defendant would pay plaintiff, a former employee, a certain amount. The court then dismissed the case. However, a dispute arose when the defendant added a no-rehire provision to the final written settlement agreement. Plaintiff objected to this provision and asked the court to vacate its dismissal of the case. Defendant eventually agreed to withdraw the offending provision. "The issue is whether the University's agreement to delete the language that [plaintiff' found unacceptable constituted an acceptance of an offer to settle the case" --a position advanced by the university, which sought enforcement of the agreement.

Settlement agreement are governed by ordinary principles of contract law, including the need for a meeting of the minds on all terms. An agreement to settle a lawsuit, voluntarily entered into, is binding on the parties, whether or not made in the present of the court, and even in the absence of a writing. Such an agreement is binding even where one party had a change of heart between the time s/he agreed to the terms of the settlement and when those terms were reduced to writing.

When plaintiff told the court that she would accept a certain financial settlement provided that there was no bar to her being rehired, she made a definite and specific offer to settle. When the University accepted, plaintiff became bound by the terms of her offer. Once the offer was accepted, the case was settled. A settlement is at bottom a contract, and it is basic contract law that an offer cannot be withdrawn after it has been accepted.

contracts - sales - venue - approval/acceptance of credit

84 Lumber Co. v. Fish Hatchery, L.P. et al. - Superior Court - Ocftober 1, 2007

http://www.aopc.org/OpPosting/Superior/out/a23003_07.pdf

Plaintiff-appellant is a building supplier who sued defendants-appellees for breach of contract, alleging non-payment for lumber and building materials purchased at plaintiff's retail location in Northampton County. Plaintiff sued in Washington County, the location of its corporate headquarters and the place where defendants' credit application was approved. Defendants were located in Lehigh County, as was the residential construction project for which the materials were purchased.

Defendants filed preliminary objections alleging improper venue, and the lower court transferred the case to Northampton County, which was a) the location of the lumber yard where defendants bought the materials, b) the location where defendants applied for credit, and c) the location where defendants made payments to plaintiff.

Noting that trial courts have "considerable discretion" in change-of-venue cases, the appellate court interpreted Rule 1006 (venue for civil actions generally) and Rule 2130 (venue where partnerships are parties), and sustained the change of venue to the Northampton County, where it held that the "transaction" had taken place and "not merely some part of the transaction...." The court said that the civil rules do not permit a lawsuit to be instituted in any country where some facet of a complex transaction -- such as the approval of the buyer's credit application -- has occurred.

The court said that there was no "substantial relationship" between Washington County and the parties' dispute which would justify venue there. It was at the retail location in Northampton County "where the offer to purchase goods was accepted by Appellant in its delivery of such good for payment." [sic] The court rejected the contention that approval of credit amounted to the actual acceptance of the contract, since there was no suggestion that the approval was necessary to form the contract.

declaratory judgment - ripeness - challenge to admin. regulations

Township of Derry v. Dept. of Labor and Industry - Pa. Supreme Court - September 26, 2007

http://www.aopc.org/OpPosting/Supreme/out/J-116-2007mo.pdf

Request for declaratory relief challenging DLI regulations concerning the definition of "state-owned building" was held to be ripe, overruling the Commonwealth Court's sua sponte dismissal on ripeness grounds.

The Supreme Court held that

- the issues were adequately developed
- the parties would suffer hardship if review were delayed
- there was an actual and ongoing controversy
- the issues were concrete and adequately developed for judicial review

The Court also noted that evidence in an administrative enforcement proceeding would be different from the evidence relevant to the plaintiff's challenge. "The enforcement process has not been accepted as a substitute for declaratory judgment review in...circumstances involving substantial challenges to state administrative regulations....[I]ndeed, the concept of pre-enforcement review has expressly been approved."

UC - willful misconduct - single standard

Dept. of Corrections v. UCBR - Pa. Supreme Court - October 4, 2007

http://www.aopc.org/OpPosting/Supreme/out/272MAL2007sd.pdf

The court reversed a Commonwealth Court decision denying benefits to a prison guard who did not report rumors of a planned attack on an inmate and did not not intervene when he heard the inmate being beaten, because of the officer's fear of reprisals and fear for his own safety. The lower court said that such fears did not constitute good cause for his actions. The court said that its conscience was shocked by the Board's conclusion "that a corrections officer who refuses to report a threat of violence against an inmate and refuses to render aid to an inmate being beaten could use fear for his own personal safety as good cause justification for his refusal to render aid....We can do nothing but express our outrage" that the DOC's Office of Professional Responsibility was aware of and condoned claimant's conduct and that of others in his situation.

The Supreme Court reversed and remanded for reconsideration in light of its decisions in Navickas v. UCBR, 787 A.2d 284 (Pa. 2001) and Grieb v. UCBR, 827 A.2d 422 (Pa. 2003), holding that the UC Act "sets for a single governing standard of willful misconduct and rejecting the idea that a higher standard may apply based upon the type or nature of the employment involved."

The Commonwealth Court decision is reported at 919 A/2d 316 (Pa. Cmwlth. 2007) http://www.courts.state.pa.us/OpPosting/CWealth/out/1205CD06_2-28-07.pdf. The lower court cited it decision in Williams v. UCBR, 648 A.2d 1321 (Pa. Cmwlth. 1994), the court noted its prior holdings that a "corrections officer, like law enforcement officials, occupy positions of great responsibility and trust, and thus, must adhere to demanding standards, which are higher than those applied to many other professions."

A concurring opinion in the lower court noted that the statement was in direct conflict with the Supreme Court's decision in Navickas v. UCBR, 778 A.2d 284, 290-1 (Pa. 2001), where the court rejected a higher standard of care for a health care worker, stating that that is a "question...of policy...not posed by the Unemployment Compensation Law we are called upon to construe. The Act sets for a single governing standard of willful misconduct, one that does not draw distinctions based upon the type or nature of the employee involved."

IFP - denial - frivolous action

Bailey v. Wakefield - Commonwealth Court - October 4, 2007

http://www.aopc.org/OpPosting/CWealth/out/1084CD07_10-4-07.pdf

Three prisoners sought a writ of mandamus against officers of a state correctional institution in the county court where the SCI is located. The trial court denied the plaintiffs' IFP petition on the grounds that the action was frivilous, pursuant to Pa. R.C.P. 240(j) http://www.pacode.com/secure/data/231/chapter200/s240.html.

A "frivolous" action is one that lacks an arguable basis either in law or in fact. A complaint is frivolous if it does not set forth a valud cause of action. The plaintiffs' complaint did allege a valid cause of action, claiming violations of state and federal constitutions and prison regulations and policies.

However, the complaint is still frivolous because the form of action - mandamus - cannot address the constitutional rights that they pleaded. Mandamus is only appropriate where the right to be enforced is very clear. Here, the defendants had a lot of discretion, because of the need for orderly administration of the prison. Mandamus is not maintainable in the circumstances.

"Because there is no way that [plaintiffs] can be successful, the trial court properly denied the petition to proceed in forma pauperis and dismissed the action seeking a writ of mandamus as frivolous."

bankruptcy - conversion - bad faith

In re Piccoli - ED Pa. - September 27, 2007

http://www.paed.uscourts.gov/documents/opinions/07D1167P.pdf

Denial of bankrupt's motion to convert Ch. 7 to Ch. 13 case upheld by district court, because of finding that the bankrupt was acting in bad faith, based largely on pre-petition conduct.

Bankrupt (B) transferred her interest in her home to her daughter and son-in-law only 16 months before filing, for no consideration. She also understated the value of her home and misrepresented the value of her unsecured claims. The court applied the factors in the case of In re Pakuris, 262 B.R. (Bankr. ED Pa. 2001) and In re Lilley, 91 F.3d 491 (3d Cir., 1996).

The court found that, under a fact-intensive inquiry --
- B's motion for conversion was to avoid fair payment to creditors
- conversion would be waste of judicial resources, since there would probably be re-conversion to Ch. 7
- home equity would give more to creditors in Ch. 7 than Ch. 13 case
- there is no absolute right to convert Ch. 7 to Ch. 13 - Marrama v. Citizens Bank - 127 S.Ct. 1105 (2007)
- B's conduct was "atypical" and not consistent with that of an honest and forthright but unfortunate debtor
- the timing in her case was "suspicious"
- B showed a lack of candor

evidence - Pa. rules - Rule 606 - juror as witness

order http://www.aopc.org/OpPosting/Supreme/out/424spct.1.pdf

rule http://www.aopc.org/OpPosting/Supreme/out/424spct.1attach.pdf

final report http://www.aopc.org/OpPosting/Supreme/out/424spct.1rpt.pdf

discovery - pre-complaint discovery - new state court rules

order http://www.aopc.org/OpPosting/Supreme/out/483civ.5.pdf

rule http://www.aopc.org/OpPosting/Supreme/out/483civ.5attch.pdf

There are a number of new, related state court rules about pre-complaint discovery, but the primary one is Rule 4003.8:

"A plaintiff may obtain pre-complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party."

Fair Credit Reporting Act - private cause of action eliminated

Meyers v. Freedom Credit Union - ED Pa. - September 21, 2007

http://www.paed.uscourts.gov/documents/opinions/07D1139P.pdf

There is no longer a private cause of action for the failure of a prospective creditor/lender to give a loan applicant who was denied credit the name, address and toll-free number of the credit reporting agency (CRA) whose report formed the basis, at least in part, of the denial of credit, as required by 15 USC sec. 1681m(a)(2)(A).

It is "beyond dispute" that there had been a private cause of action uner 15 USC secs. 1681n and 1681o for such failure -- until the enactment of a provision of the Fair and Accurate Credit Transaction Act (FACTA), P.L. 108-159, which amended the FCRA by, inter alia, eliminating a private cause of action for the conduct of which plaintiff complains. Under FACTA, such violations can now be enforced only by the relevant federal agencies and officials.

The court reached this conclusion by recognizing the "primacy of text and structure in statutory interpretation" and the decisions of "almost all" of the courts that have examined the issue, even while noting that the result was contrary to the structure, history and purpose of FACTA.

Somewhat ironically, however, the plaintiff in this case was able to recover, because her cause of action accrued before FACTA took effect.

Fair Housing Act - attorney fees

Snyder v. Bazargani et al. - ED Pa. - September 25, 2007

http://www.paed.uscourts.gov/documents/opinions/07D1146P.pdf

Plaintiffs awarded attorney fees under the Fair Housing Act, 42 USC 3613(c)(2), against defendant-landlords who "inquired about plaintiffs' religious affiliation and thereafter....refused to rent plaintiffs the property." Given that plaintiffs prevailed at trial, the court had "very little discretion to deny an award of counsel fees." The court's discretion to deny fees is "tightly cabined."

contracts - damages - duty to mitigate - burden of proof

Wilmington Finance Co. v. Matrix Financial Services - ED Pa. - September 26, 2007

http://www.paed.uscourts.gov/documents/opinions/07D1159P.pdf

"In Pennsylvania, a plaintiff in a breach-of-contract action has a duty to take reasonable steps to mitigate its damages. Delliponti v. DeAngelis, 681 A.2d 1261, 1264 (Pa. 1996). Defendant bears the burden of proving plaintiff’s alleged failure to mitigate. Id. To meet that burden, defendant must “show how further loss could have been avoided through the reasonable efforts of the injured party.” Pontiere v. James Dinert, Inc., 627 A.2d 1204, 1209 (Pa. Super. Ct. 1993)." It was thus "essential" that the defendant show that the plaintiff "could have taken reasonable steps...and that taking those steps would have prevented at least some of [plaintiff's] loss."

Protection from Abuse - family/household members - siblings - business partners

Custer v. Cochran - Superior Court - September 25, 2007

http://www.aopc.org/OpPosting/Superior/out/E01002_07.pdf

Siblings who do not live together and whose only relationship is a business one come within the plain words of the definition of "family or household members," 23 Pa. C.S. 6102, since they are clearly related by consanguinity or affinity, overruling Olivieri v. Olivieri, 678 A.2d 393 (Pa. Super. 1996), to the extent that it limited application of the PFA Act to people who live in the same household.

The court also held that there was adequate proof of abuse and noted the ages, height and weight of the parties, and that plaintiff -- whose testimony the court found credible -- experienced fear and pain in her arm for several days as a result of defendant's actions.

Judge Ford Elliot concurred reluctantly, noting that the "clear legislative purpose and objective of the Act is frustrated by applying its protection to a dispute between business partners concerning purely business matters." The judge noted that the legislature's removal of the same-household requirement "simply enlarged the group of victims who have standing to seek relief under the Act so long as the abuse they suffer is the result of an intimate, sexual, or familial relationship they share or have shared with the abuser." The current litigants have no relationship that exists in any "domestic sphere." Nonetheless, the judge concurred, finding the majority view "legally sustainable."

FMLA - state employer - immunity - self-care v. family care

Wampler v. Department of Labor & Industry - MD Pa. - September 14, 2007

http://www.pamd.uscourts.gov/opinions/kane/06v1877.pdf

A claim against against a state employer under the self-care provision of the FMLA, 29 USC sec. 2612(a)(1)(D) is barred by sovereign immunity, under the rationale of Chittester v. DCED, 226 F.3d 223 (3d Cir. 200) and Nevada DHS v. Hibbs, 538 US 721 (2003), as well as decisions from the 6th, 7th, 8th and 10th Circuits.

Unlike the family-care provision of the FMLA, 29 USC sec. 2612(a)(1)(C), the self-care provision does not inplicate gender-based stereotypes, which Congress has the power to deal with under the enforcement clause of the 14th Amendment.

contracts - unjust enrichment/quantum meruit

Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., Inc. - Superior Ct. - Sept. 18, 2007

http://www.aopc.org/OpPosting/Superior/out/a35022_06.pdf

Plaintiff/subcontractor's judgment against defendant/general contractor for installation of fencing at county prison upheld on theory of quantum meruit/unjust enrichment, which are synonymous terms. Plaintiff finished the fence job on emergency basis when a prior subcontractor left the job incomplete.

The elements/factors in QM/unjust enrichment are

a) lack of an express contract - there was a dispute about the price in this case

b) benefit conferred on defendant - satisfaction of D's contractual obligation to 3d party

c) acceptance and retention of benefit by defendant

d) circumstances would make it inequitable or unjust to retain benefit w/o payment, the "most significant element" of the doctrine

e) QM can apply where there has been partial payment, if benefit is greater than amount paid

consumer - debt collection - bad checks

FTC v. Check Investors, Inc. - Third Circuit - September 6, 2007

http://www.ca3.uscourts.gov/opinarch/053558p.pdf

The court affirmed the district court's grant on injunctive relief and a $10.2 million fine pursuant to the Fair Debt Collection Practices Act, 15 USC 1692 et seq., against a company which purchased more than 2.2 million bad checks for $348 million and admittedly used abusive debt collection practices against the consumer who had written the checks -- most notably false threats of criminal prosecution and calling people criminals or crooks. The defendant also tried to collect a fee of $125-$130 to the face amount of each check, which exceeded the legal limit of most states. The court said that defendant's tactics "apparently knew no limits."

Background of the FDCPA
The court discussed the "basis tenet" of the FDCPA that "all consumers, even those who have mismanaged their financial affairs resulting in default on their debts, deserve the rights to be treated in a reasonable and civil manner," and noted that the "number of persons who willfully refused to pay debts is minuscule....When default occurs, it is nearly always due to an unforeseen event such as unemployment, overextension, serious illness or marital difficulties or divorce."

NSF checks are "debts" under the FDCPA
A "debt" under the FDCPA is "any obligation...to pay money" arising out of a consumer transaction, even if the payor's intent was fraudulent at the time s/he wrote the check. Four other courts of appeals reached this same conclusion. A check written in a consumer transaction evidences the drawer's obligation to pay, which remains even if the check is dishonored. A transaction's status as a debt must be determined at the time the obligation first arose. The crime of writing a bad check is a specific intent crime; the bad intent must exist at the time the check is written--a fact that defendant could not establish. There is no crime even when the drawer is at fault for the dishonor unless wrongful intent exists at the time the check was written.

But even if that were not the case, "there is no fault exception in the FDCPA....Congress chose not to exempt debt collectors from following the Act [even] if they could prove that the consumer intended his check to be dishonored or accepted credit from a merchant intending default....[N]o consumer deserves to be abused in the collection process."

The payors/drawers of the NSF checks are "consumers" under the FDCPA
The FDCPA defines "consumer" as "any natural person obligated or allegedly obligated to pay any debt." (emphasis in original). "Congress realized that some people who write bad check do so knowingly and willfully and that their conduct is fraudulent. It is just as clear that Congress enacted a definition of 'consumer' that did not exclude such person from the protections they would otherwise be afforded under the FDCPA."

Check Investors was a "debt collector" and not a "creditor under the FDCPA
The court rejected defendant's argument that because it purchased the checks involved, it was not a "debt collector" under the FDCPA because it was collecting its own debts, not those of another. The court distinguished those who acquire a debt with the intent to continue to service it, from those who buy for collection--the case here. The court also stressed the difference between buying a debt which is not in default from buying one which was in default when acquired.

"Not only do we conclude that Appellants are 'debt collectors' rather than a 'creditors,' we believe that their course of conduct exemplifies why Congress enacted the FDCPA and the wisdom of doing so. It also shows why Congress has directed us to focus on whether a debt was in default when acquired to determine the status of 'creditor' vs. 'debt collector.' "

Third Circuit Rules Child Wrongfully Detained under Hague Convention

http://www.ca3.uscourts.gov/opinarch/063962p.pdf

The U.S. Court of Appeals for the Third Circuit upheld the District Cout's decision in Yang v. Tsui, No. 06-3962, Filed: August 22, 2007.

In the decision the Court held that the Father in this case wrongfully retained custody of his five year old daughter in Pittsburgh after taking temporary physical custody of her while the mother had surgery and follow up treatment for a major medical condition at home in Canada.

The Court found that, Under the Hague Convention, four questions must be answered. A court must determine (1) when the removal or retention took place; (2) the child’s habitual residence immediately prior to such removal or retention; (3) whether the removal or retention breached the petitioner’s custody rights under the law of the child’s habitual residence; and (4) whether the petitioner was exercising his or her custody rights at the time of removal or retention.

In this case the court found that based on an analysis of these considerations the child in this case was wrongfully detained.

The determination by a court that a child was wrongfully removed or retained does not automatically mean that the child must be returned to his or her habitual residence. Rather, once the petitioner has proven his or her case, “the burden shifts to the respondent to prove an affirmative defense against the return of the child to the country of habitual residence.”

The father maintained that he proved the “wishes of the child” defense by a preponderance of the evidence and that the District Court abused its discretion by entering the order for Raeann to be returned to Canada despite such proof.

The Court found that the District Court did not err by refusing to apply the defense. Consequently, the order of the Distict Court was affirmed mandating that the child be returned to her mother in Canada.

mortgage insurance - Fair Credit Reporting Act - adverse action notice

Whitfield v. Radian Guaranty, Inc. - Third Circuit - August 30, 2007

http://www.ca3.uscourts.gov/opinarch/055017p.pdf

Because of the poor credit history of Plaintiffs-borrowers, the Lender (Countrywide Home Mortgage) agreed to give them a mortgage for most of purchase price, on condition that they pay for mortgage insurance. The Lender arranged for mortgage insurance from defendant-insurer for $905/month (!), based on the loan-to-value and the consumers' credit score. Defendant conceded that the insurance premium would have been lower if the borrowers' credit score had been higher. Defendant-insurer did not send an adverse action notice to plaintiffs, according to their policy of not doing so when insurance is approved.

Plaintiffs sued, claiming that an adverse action notice was required under the Fair Credit Reporting Act, 15 USC sec.1681m(a)., since they paid more than the lowest insurance rate due to an adverse credit report. The FCRA requires that a user of information from a credit report takes any adverse action against an individual, that the user shall notice the individual of the adverse action, 15 USC 1681m(a).

Based in part on Safeco Insurance Co. b. Burr, 127 S.Ct. 2201 (2007), the court held that

a) an initial premium/first-time rate could be considered an increase in a charge for insurance for purpose of the adverse action notice requirement of the FCRA, and

b) privity of contract between the insurer and consumer-borrower is not a requirement of the FCRA

injunction - dissipation of assets

Ambrogi v. Reber - Superior Court - September 7, 2007

http://www.aopc.org/OpPosting/Superior/out/a12010_07.pdf

It was appropriate for the trial court to grant an injunction preventing defendants from dissipating their assets during the pendency of a lawsuit. The court ordered defendants to place the net proceeds of the sale of considerable real property in a supervised escrow account. There was a demonstrated need to prevent defendants from liquidating their assets and making themselves judgment proof.

The opinion contains a good review of that factors that are required to get a preliminary injunction.
- prevent immediate and irreparable harm
- greater injury from on-grant that grant
- maintenance of status quo
- the alleged wrong is manifest and the injunction of reasonably suited to abate it.
The movant doesn't have to show that he will prevail, only that there are substantial legal questions that the court has to resolve. On appeal, the court determines if the trial court had reasonable grounds for its order and will reverse only where no grounds for it exist or that the rule of law relied on was palpably erroneous or misapplied.

In this wrongful death action, defendants sold almost 40% of their real estate in less than 2 years from the date of a fatal fire at issue in the case. The trial court was troubled by the number of post-fire sales, the high value of the properties sold after the fire ($3 million), defendants' failure to purchase new real property with the proceeds, defendants' failure to disclose ownership of other properties, and very high potential damages.

The trial court simply directed that defendants must preserve their assets at a level reasonably calculated to satisfy a judgment that could be entered. Its order allowed defendants to petition for a change and release of funds to conduct their business.

employment - wages - FLSA - donning/doffing work clothing

DeAsencio v. Tyson Foods, Inc. - 3d Circuit - September 6, 2007

http://www.ca3.uscourts.gov/opinarch/063502p.pdf

Held, time that poultry workers spent donning and doffing clothing needed to do their work was compensable "work" under the Fair Labor Standards Act, 29 USC sec. 201 et seq., since it involved activities that were an integral and indispensable part of their principal activities, took place on the employer's premises, pursuant to the rules of the employer and for its benefit.

Consumer - mortgage refinancing - existence of contract - estoppel/fraud - statute of frauds

McCloskey v. Novastar Mortgage, Inc. - ED Pa. - August 21, 2007

http://www.paed.uscourts.gov/documents/opinions/07D0994P.pdf

Plaintiffs were solicited by defendant to refinance their mortgage. Based on a series of conversation and emails with defendant, plaintiffs withdrew their refinancing arrangement with another mortgage company. Defendant ultimately rejected plaintiff's application, allegedly because their income was somewhat less that stated orally during phone conversations. Plaintiffs sued for breach of contract, promissory estoppel and fraud.

Contract
The contract cause of action was dismissed, because plaintiffs failed to establish the existence of a legal contract. The documents that they produced were evidence of preliminary negotiations but not a contract. The documents did not contain the "essential terms of the contract." Under Pennsylvania law, a contract exists if a) the parties have manifested an intent to be found by the terms of the agreement, b) the terms are sufficiently definite, and c) there was consideration. Preliminary negotiations do not alone constitute a contract. To ripen into a contract, there must be a manifestation of mutual asset to the terms of a bargain -- which was not the case here. An oral contract can be enforeable, but it must be established by clear and precise evidence - again not the case here.

Promissory estoppel
Plaintiffs' alleged detrimental reliance on defendant's promises about refinancing. Defendant said plaintiff had unclean hands because of misstatements about income. Inequitable conduct by plaintiff must be connect to the matters at issue, and the conduct has to be willful, not negligent. The court held that factual matters still had to be resolved about these issues and refused defendant's motion for summary judgment.

Statute of frauds defense
A mortgage is an interest in property and must satisfy the statute of frauds, as must an oral agreement to lend money in consideration for a mortgage. A party cannot avoid the statute by relying on an estoppel theory of recovery. However, the statute only makes an oral contract for an interest in real property unenforceable. It does not void the contract. Where the oral agreement has been obtained by fraud, the buyer can recover as damages the loss of his bargain. A plaintiff is permitted to pursue a promissory estoppel claim even when the underlying promise is subject to the statute of frauds, but his recovery is limited to reliance damages in the absence of fraud. The statute of frauds may prevent the specific performance of the promise, but it does not bar the promissory estoppel claim itself. The court held that the plaintiff had the right to pursue further discovery on this claim.

Fraud claim
Defendant again claimed that plaintiffs' overstatement of income barred this claim. The court rejected this because of defendant's lack of reliance on the statement of income, which was of "minimal importance to the loan approval." The court allowed the claim to proceed and permitted additional discovery by plaintiff.

disability - reversal v. remand - effect of substance abuse

Monagle v. Astrue - ED Pa. Augsut 24, 2007

http://www.paed.uscourts.gov/documents/opinions/07D1021P.pdf

The court held that it was appropriate to reverse and award benefits rather than remand for a further hearing, citing Morales v. Apfel, 225 F.3d 210 (3d Cir. 2000) and Allen v. Bowen, 881 F.2d 37 (3d Cir. 1989). There were no remaining evidentiary issues, and the opinions of the treating physicians that claimant was disabled, independent of his drug addiction, should have been followed.

The case also involved the problem of separating out the effect of marijuana addiction from claimant's bipolar disorder. There is good language in the case about the weight which should be given to the treating physician on this issue.

ejectment - jurisdiction - sheriff's sale - deed

Wells Fargo Bank v. Long - Superior Court - August 22, 2007

http://www.aopc.org/OpPosting/Superior/out/a14007_07.pdf

A purchaser of property at sheriff's sale cannot bring an ejectment action until the title to the property passes by acknowledgment, delivery and recordation of the sheriff's deed. Before that time, the purchaser does not have a present right to immediate possession, a jurisdictional prerequisite to an ejectment action. The successful bidder at a sheriff's sale only gets "an inceptive, inchoate, or equitable estate."

The hiatus between the sheriff's sale and the delivery and recording of the deed is a "jurisdictional void" which cannot be traversed. There is an extensive (and repetitious) discussion of these principles, in the opinion.

Fair Credit Reporting Act - complaint to credit reporting agency

Beisel v. ABN Ambro Mortgage Inc. - Ed Pa. - Aguust 10, 2007

http://www.paed.uscourts.gov/documents/opinions/07D0951P.pdf

A credit reporting agency [CRA] has a duty concerning disputed information in a credit report only after the complaining party has disputed the credit information with the CRA and the credit reporting agency has notified the furnisher of information.

In this case, the consumer-plaintiffs alleged only that they disputed it with the furnisher, not the CRA, before bring suit under the FCRA, 15 USC 1681 et seq. Jaramillo v. Experian, 155 F.Supp. 2d 356, 363 (E Pa. 2001).

bankruptcy - dismissal - bad faith - sec. 707(a)

In re Perlin - Third Circuit - August 3, 2007

http://www.ca3.uscourts.gov/opinarch/063199p.pdf

In adjudicating a motion to dismiss assserting bad faith under 11 USC 707(a), it is within the discretion of the bankruptcy court to consider a debtor's monthly income and expenses together with any other factors relevant to a debtor's good faith in filing for bankruptcy, reflecting the "fact-intensive nature of the good-faith inquiry."

Net worth, future prospects and ability to repay are not a valid cause for dismissal. Dismissal should be carefully confined to only truly egregious cases that entail concealed or misrepresented assets and/or sources of income, lavish lifestyles, and intention to avoid a large single debt based on conduct akin to fraud, misconduct or gross negligence.

welfare - MA- resources - disretionary support trust

DeBone v. DPW - Commonwealth Court - Masy 31, 2007

http://www.courts.state.pa.us/OpPosting/CWealth/out/2138CD06_8-9-07.pdf

Held,discretionary support trust should be included as a resource in determining eligibility for MA benefits. Trust consisted of $145,000 and trustees could use the money for petitioner's benefit. Petitioner's resource held to exceed $2400 limit under 55 Pa. Code 178.1(a),178.2 and 178.4. Beneficiary's interest depends on settlor's intent. Rosenberg v. DPW, 679 A2d 767 (Pa. 1996).; Shaak v. DPW, 747 A2d 883, 886 (Pa. 2000). Court applied factors cited in those cases, especially that trustee had discretion to use the trust principal for the welfare etc of the beneficiary.

consumer - warranties - exclusion/modification - conflict between express and implied warranties

N.J. Transit Corp. v. Harsco Corp. - 3rd Circuit - August 2, 2007

http://www.ca3.uscourts.gov/opinarch/063507p.pdf

The court held that a sophisticated commercial buyer who had drafted the contract could not rely on UCC implied warranties of merchantability and fitness for a particular purpose under the N.J. equivalent of 13 Pa. C.S. sec. 2314 and 2315 when there was a one-year express contractual warranty that had expired at the time of the alleged loss.

The court took special note of the fact that this was "hardly the typical case" involving exclusion or modification of a warranty under sec. 2316. Here, the buyer drafted the contract, both parties were sophisticated business entities, and the parties had equal bargaining power. "It was the buyer who dictated all the contract's terms [and] whose bargaining power was superior." The buyer "specified precisely what it required" and the express warranty was "extremely broad," so "there was no implied warranty of fitness for a particular purpose."

Under sec. 2317(c), "express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose." Here the court interpreted the express warranty and implied warranty of merchantability as "consistent and cumulative... for the one year term of the express warranty. Beyond that period, the implied warranty of merchantability conflicts with the contract's specifications, and is therefore displaced by the express" one-year warranty, pursuant to sec. 2317 (c).

The court specifically stated and emphasized that it was not interpreting sec. 2316 (exclusion or modification of warranties) to allow all express warranties of limited duration to impliedly exclude or modify limited warranties. Instead, it based its holding on the fact that here the buyer-drafted global warranty was incorporated into the contract specifications, noting that the commentary to sec. 2316 recognized such a situation as "not the ordinary circumstance that the section is designed to address." The court said that its holding was in line with the general purpose of sec. 2316 "which, according to the commentary, is to ensure that there are no surprises concerning which warranties accompany the goods sold." The element of surprise is not present where the buyer drafts the contract. A different holding would turn "a buyer's shield against surprise into a buyer's sword of surprise."

bankruptcy - ch. 13 - post-foreclosure sale cure

In re Connors - 3rd Circuit - August 3, 2007

http://www.ca3.uscourts.gov/opinarch/063321p.pdf

Ending a dispute among N.J. district courts, the 3rd Circuit held that a Chapter 13 debtor does not have the right, under 11 USC 1322 (c) (1), to cure a default on a mortgage secured by the debtor's residence after the residence is sold at a foreclosure sale but before the deed is delivered.

The "unambiguous language of sec. 1322 (c) (1) supports the 'gavel rule.'" It says the a "default with respect to, or that gave rise to, a lien on the debtor's residence may be cured under paragraph (3) or (5) of subsection (b) until such residence is sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law…." The court said that numerous courts have held that a residence is "sold" at the foreclosure auction. The sale is final then, not when the deed is later delivered.

There is a provision, 11 USC 108(b), which allows a bankruptcy to be filed and a) objections to the sale to be filed or b) the property redeemed -- if the bankruptcy is filed before the expiration of a grace period established by a nonbankruptcy state law.

In this case, the debtor had the right to but did not exercise his statutory right to object to the foreclosure sale or redeem the property within 60 days of the filing of his chapter 13 petition, as permitted by N.J. state law and 11 USC 108(b).

consumer/housing - rental housing - discrimination - ECOA and CPL

Portis v. River House Associates - MD Pa. - August 2, 2007

http://www.pamd.uscourts.gov/opinions/jones/06v2123.pdf

African-American plaintiffs were turned down for rental housing by Defendant, allegedly based on lack of credit history. They subsequently got rental housing from another landlord, who used same credit agency as Defendant allegedly used. Eventual landlord got a credit history, which was readily available. Plaintiffs sued under a) the Fair Housing Act, 42 USC 3601 et seq.; b) 42 USC 1981; c) 42 USC 1982; d) the Equal Credit Opportunity Act (ECOA), 15 USC 1691 et seq.; and e) the Pennsylvania Consumer Protection Law, 73 PS 201-1 et seq. Defendant moved to dismiss the last two claims -- EDOA and Consumer Protection Law. The court agreed.

Equal Credit Opportunity Act - Citing Laramore v. Ritchie Realty, 397 F3d 544 (7th Cir. 2005), the ECOA claim was dismissed because

- it did not involve the extension of "credit," i.e. the right to defer the payment of a debt
- the ECOA was meant to protect against discrimination by financial institutions, not landlords
- a Federal Reserve regulation stating that the granting of a lease is not an extension of credit
- the ECOA interests could be protected in the FHA claim, which Defendant did not move to dismiss.

Pennsylvania Consumer Protection Law
The court dismissed this claim, because the Plainiffs and Defendant never entered into a contract. Defendant rejected Plaintiff as a tenant. Plaintiffs found a new place to live. Plaintiffs did not purchase goods or services from Defendant. Calling this a case of first impression, the court held that the CPL does not permit suit by a person who leased property from one entity to bring suit against another entity from the which person initially attempted to lease property. The court noted that the CPL allows the Attorney General or county DA to bring suit, implicitly recognizing that there may be circumstances in which private actors are not permitted to bring suit but public officials can. The court also noted that while direct privity is not required under the CPL, the statute "does not stand for the proposition that a CPL claim can stand against a wholly unrelated party or one who is foreign to the purchase or lease transaction." In that sense, the CPL has a "causation requirement."

judges - deliberative thought processes - discovery

Leber v. Stretton - Superior Court - June 8, 2007

http://www.aopc.org/OpPosting/Superior/out/A16018_07.pdf

Deliberative thought processes of a judicial officer (including MDJs and presumably ALJs, referees, etc.) are not discoverable.

bankruptcy - retirement annuity not part of estate under sec. 541(c)(2)

Skiba v. Laher- 3rd Circuit - August 2, 2007

http://www.ca3.uscourts.gov/opinarch/054168p.pdf

Held, bankrupt's TIAA-CREF retirement annuity is exluded from the bankruptcy estate as a "trust" under 11 USC 541(c)(2).

Consumer Protection Law - pleading - particularity

Rosenberg v. Avis Rent-A-Car System, Inc. - ED Pa. - July 31, 2007

http://www.paed.uscourts.gov/documents/opinions/07D0888P.pdf

The court granted defendant's motion to dismiss a consumer protection claim under the state CPL, 73 PS 201-1 et seq, for failure to plead the claim with "particularity," as allegedly required by FRCivP 9(b), because fraud is said to be involved. "Federal courts have analogized fraud pleading to the "first paragraph of any newspaper story, requiring the who, what, when, where, and how of the circumstances." This applies not only to fraud actions under federal statutes but also to those based on state law, such as the CPL. The court gave Plaintiff 30 days to file an amended complaint.

Citing a series of ED Pa. cases, the court held that under CPL, plaintiff's must plead the following elements with particularily:

a) a specific false representation of material fact;
b) knowledge by the person who made it of its falsity
c) ignorance of its falsity by the person to whom it was made
d) the intention that it should be acted upon
e) that the plaintiff did act on it to his detriment (damages)
These requirements are "relaxed when the factual information regarding the alleged fraud is within the defendant's control."

As so often happens with this issue, the court did not mention Commonwealth v. Percudani, 825 A.2d 743 (Pa. Cmwlth 2003), noting that amendments (fraudulent or deceptive conduct prohibited) to the CPL statute negated this strict pleading requirement.

consumer - foreign judgment - full faith and credit - due process

Frontier Leasing Corporation v. Shah - Superior Court - July 30, 2007

http://www.aopc.org/OpPosting/Superior/out/a19038_07.pdf

Pennsylvania court stuck down a default Iowa judgment entered against defendant Shah on due process grounds.

The contractual forum selection clause purported to give Polk County, Iowa, jurisdiction. A judgment was entered against Shah, who had leased an ATM machine fromm a 3rd party lessor who in turn assigned its rights to Frontier Leasing. Shah admittedly defaulted on the lease. Frontier then tried to execute on the judgment in Allegheny County, where defendant was located. Defendant filed a motion to strike the judgment.

Full faith and credit under Article IV, sec. 1 of the US Constitution cannot be granted unless the sister state court that entered the judgment had personal jurisdiction over the defendant, who must have been afforded due process. Personal jurisdiction can be established by consent, in which case the minimum contacts requirement under International Shoe, 326 US 310 (1945), is not applicable. In addition, personal jurisdiction can be waived.

The court looked at Iowa law to determine these issues. Under Iowa law (and Pennsylvania law), forum selection clauses (FSC) are presumptively enforceable. The presumption can be rebutted by showing that the FSC is not reasonable, under the circumstances. To do so, a defendant must make a "strong showing" that the judgment should be set aside.

Some factors in this determination are
- whether there was an arm's length (what length sleeve?) transaction
- relative sophistiction of the parties (experienced and sophisticated businessmen?)
- whether enforcement would be unreasonable or unjust in the circumstances
- whether there was fraud of overreaching
- whether enforcement would make things so gravely difficult for Defendant that he would effectively be deprived of his day in court

In this case Defendant was a Pakistani immigrant with a limited command of English. The FSC did not mention the terms "jurisdiction," or "venue" or "service of process." It only said that a suit would be "proper" if brought in Iowa courts. The FSC language was not in bold type and was contained in the midst of boilerplate language, "inconspicuous even to the trained eye." The court had "no doubt that appellant had no idea what the import of this clause was…." The court decided that "if there is anything substantive to the notion that forum selection clauses should be vitiated if unreasonable, this is the case in which to apply that notion. Accordingly, we conclude the forum selection clause is unenforceable under Iowa law."

This would seem to resolve the case, Nonetheless, the court went on to consider whether Iowa's assumption of jurisdiction was proper, under Iowa law, applying a two-part test. The first part was satisfied by the presumption of jurisdiction based on the contractual FSC. The second part, however, was not. It involved several factors concerning the general notion of minimum contacts, including quantity, nature and quality, source and connection with the cause of action, etc. Here, defendant's only contact with Iowa was a "single tangential contact" -- that he executed a contract that provided that the lessor would render performance in Iowa. This contact was "accidental" and it is "doubtful that appellant had an understanding that this contact could result in his being hailed to Iowa to answer for default. It was a single fortuitous contact, insufficient to give Iowa jurisdiction under its own law."

The court held that the FSC was "not only unforceable but also is insufficient, in and of itself, to confer jurisdiction on the Iowa courts under the due process clause of the Fourteenth amendment. In the end analysis, we simply have not been psersuaded that appellant was afforded "fair warning" that he could be forced to travel to Iowa to answer for an alleged default of the lease."

consumer - payday lending - license - Consumer Discount Company Law

Department of Banking v. NCAS of Delaware - Commonwealth Court - July 31, 2007

http://www.aopc.org/OpPosting/CWealth/out/519MD06_7-31-07.pdf

In this original jurisdiction case, the court determined that Advance America, a payday lender, was subject to the licensing requirements of the state Consumer Discount Company Act, 73 PS 6201 et seq., since the effective interest rate in its transactions was much higher than the statutory limit of 6% . The court grant the Department's motion for judgment on the pleadings on this claim.

Although the stated contract interest rate was 5.98% - just below the 6% limit prescribed by the CDCA - AA also charged consumers $149.95 per month as a "participation fee", which the court said was a charge under the statute that had to be include in the aggregate charges and thus was part of the interest rate deterimination, because the participation fee was a "necessary condition" of any credit advance by AA and was a "charge inextricably related to the amount actually loaned or advanced." By including the participation fee, the aggregate interest rate was about 368%, "far in excess of" the 6% interest that an unlicensed lender is permitted to charge.

The court held that the factual record was not sufficient to determine the Act 6 question - whether the monthly participation fee should be considered sham interest which, when combined iwth the stated interest rate of 5.98%, established a violation of 41 PS 201.

The court also held Pennsylvania law applied to the case, since it was brought by the state Department of Banking for violation of state banking laws, and thus was not governed by the terms of contracts between AA and individual consumers, which specified that Delaware law applied.

real property - consumer protection - disclosures

Growall v. Maietta - Superior Court - July 26, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/A04001_07.pdf

Jury found husband/seller liable but not wife/seller, for failure to tell buyer about basement water problem The appellate court affirmed

- under Consumer Protection Law, 73 PS 201-1 et seq., because it appeared that the purchase was for investment and not personal, family, or household purposes

- under Real Estate Settlement Disclosure Law, 68 Pa C.S. 7301 et seq., because - jury found wife did not know of problem at time of sellers' RESDL disclosure - seller/wife was not obligated to make any specific investigation or inquiry to complete the disclosure, 68 Pa CS 7307
- seller/wife not liable to error or inaccuracy or omission if she did not have knowledge of it, 68 Pa. CS 7308
- there was no allegation or proof that there was a problem until 2 months after disclosure statement filled out

The court distinguished similar cases, since they involved "basic facts" about the property "readily ascertainable by the sellers," e.g., zoning retrictions and boundary lines. In the case at bar, the problem was called "an isolated incident of water damage/flooding in the basement," and not a "basis fact."

consumer - debt collection - corporate officer

Campuzano-Burgos v. Midland Credit Mgmt., et al. - ED Pa. - July 26, 2007

http://www.paed.uscourts.gov/documents/opinions/07D0870P.pdf

Use of a dunning letter bearing the signature of corporate president and executive v.p. who had no role in the debt collection process was held to be violation if Fair Debt Collection Practices Act, 15 USC 1692e(9), which bars use of any written communication which, inter alia, creates a false impression as to its source, authorization or approval.

The FDCPA is to be interpreted from the viewpoint of the least sophisticated debtor, while avoiding bizarre or idiosyncratic intepretations, and presuming reading with care and in context. The FDCPA is meant to protect the gullible as well as the shrewd.

A writing is deceptive where is can be reasonably read to have two or more different meanings, one of which is inaccurate. It was alleged in this case that the letter was misleading because it gave the impression that the debt was being pursued by "high-ranking officer of the company," when in fact it was not, thereby creating a false impression as to source, authorization or approval. There are analgous cases involving the use of an attorney's name when the attorney is not involved in the collection.

In both situations, there is an implication of "special authority." An unsophisticated consumer getting a letter from an attorney or corporate officer "knows the price of poker has just gone up" because attorneys and officers have a special status and greater weight and "get the debtor's knees knocking. An escalation from a lowly collection agent to a senior executive of the company" shows that the debt collector means business. It "connotes authority and is more likely to generate a response." In such cases, there is a "general concern with debt collectors' practice of falsely implying that someone in a position of real authority is supervising the collection of this debt." It is an "attempt to goad a debtor into paying by using a signatory who has no involvement in the handling of the…cases as a signal that the collection process has escalated to a graver level….to convey that a high-roller has entered the game."

The court held that "where some aspect of a debt collector's communication - whether explicit or implied - has the purpose or effect of making a debtor more likely to respond, the FDCPA requires that it be true." Because the executives in this cases did not review the case and had no actual involvement, the court found that the letter was deceptive and misleading within the meaning of sec. 1692e.

admin. law - appeal - late appeal - nunc pro tunc

Hantman, Inc. v. Office of UC Tax Services

http://www.aopc.org/OpPosting/CWealth/out/36CD07_7-11-07.pdf

Nunc pro tunc appeal denied where agency rejected the credibility of petitioner's claim that he had a psychological disability -- a phobia about forms.

As a rule, time limits for appeals are mandatory, absent

- fraud or manifestly wrongful or negligent conduct of admininstrative authorities

- non-negligent circumstances of appellant or his/her counsel, if
- the appeal is filed shortly after expiration date and
- the appellee is not prejudiced (Bass - 401 A2d 1133 (Pa. 1979)

- unexpected illness/hospitalization (Cook - 671 A2d 1139 (Pa. 1996))

Even in those case, the party attempting to file an appeal nunc pro tunc carries a "heavy burden to justify an untimely appeal."

mortage foreclosure - HEMAP

Fish v. PHFA - Commonwealth Court - July 25, 2007

http://www.aopc.org/OpPosting/CWealth/out/32CD07_7-25-07.pdf

Court upheld PHFA's rejection of the HEMAP application of a attorney/petitioner.

PHFA had rejected the application, finding that
a) applicant did not show that he was suffering financial hardship due to circumstances beyond his control, because
- he got a tax return of $6180, enough to make 10 mortgage payments, but saved nothing toward the mortgage delinquency
- applicant had net monthly income of $2161, enough to meet his regular monthly expenses, but "has failed to save any funds toward the delinquency"

b) applicant did not comply with procedural requirements of Act 91, in that he failed to attend a face-to-face meeting with a consumer credit counseling agency (CCCA) within 33 days of the date of his Act 91 letter http://www.phfa.org/forms/hemap/hemap_act91_notice.pdf.

c) since applicant had received but not acted on an Act 91 notice in a first foreclosure action, no second Act 91 letter was required before the second foreclosure was commenced under 12 Pa. Code 31.203(a)(3)(iv) http://www.pacode.com/secure/data/012/chapter31/s31.203.html.

The purpose of an Act 91 notice is to "instruct the morgagor of different means he may use to resolve his arrearages in order to avoid foreclosure…and also gives him a timetable in which such means must be accomplished." Applicant got that information.

discovery - sanctions - factors

Reilly v. Ernst & Young LLP - Superior Court- July 18, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/e03004_06.pdf

Trial court abused its discretion by ordering the deemed admission of a party's Request for Admissions due to other party's failure to verify its responses to the RFA.

The following factors militated strongy against such a deemed admission

- the prejudice caused to the other party and whether the prejudice can be cured
- the defaulting party's willfulness or bad faith in failing to comply with the discovery order. - the number of discovery violations
- the importance of the precluded evidence in light of the failure to comply

mortgage foreclosure - jurisdiction - service

PNC Bank v. Mathias- Superior Court- July 17, 2007

http://www.aopc.org/OpPosting/Superior/out/A03002_07.pdf

The trial court did not have jurisdiction to enter a default judgment against the heir of deceased mortgagor, where the plaintiff bank did not serve the heir -- named as a defendant "unknown heir" -- with a copy of the complaint, even though it knew of his existence and location and had corresponded with him by letter and phone.

Despite learning of mortgagor's death, the existence of a potential heir, and correspondence with that person, the bank filed and trial court granted the bank's motion for alternate serve under Rule 430, instead of requiring regular service under Rule 410(a). The heir didn’t learn of the alternate service and never received personal service. In its motion, the bank averred that decedent's heirs were not known.

The appellate court held that the plaintiff "did not effectuate proper service" of the complaint where it had prior written and telephone communications with the heir, knew that the heir represented the mortgagor's estate, and knew that the person was a possible heir to the mortgagor's estate, having said as much in a letter to him. "If the plaintiff has failed to effectuate valid service and if the defendant lacks notice of the proceedings against him, the court has no jurisdiction over the party and is powerless to enter judgment. Entry of a judgment under these circumstances was also held to violate due process.

mortgage foreclosure - deficiency judgment - proof of value

Loukas v. Mathias, et al. - Superior Court - July 12, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/S22037_07.pdf

Plaintiff in a mortgage foreclosure must offer competent proof of an alleged reduction in value due to "uncertainty of title" in a Deficiency Judgment Act (DFA) case under, 42 Pa CS 8101 . The Superior Court reversed the trial court, which had improperly adopted the unsupported testimony of plaintiff's witness that a supposed uncertainty of title reduced the value of the property by about 10%, thus causing a substantial deficiency judgment and continued liability of the defendant, over and above the value of the real property taken in execution.

The objective of the DFA is "to relieve a debtor of further personal liability to the creditor, if the real property taken by the creditor on an execution has a fair market value... sufficient so that the creditor may dispose of the property to others...without a net loss to the creditor." In this case, the unproven reduction in value, "without factual support in the record," thwarted that purpose. The appellate court's reversal resulted in a surplus in excess of plaintiff-appellee's judgment, thus rendering a deficiency judgment "inappropriate." The court found that the property, bolstered in value by the rejection of an unwarranted deduction due to the alleged uncertainty of title, satisfied defendants' liability to plaintiff.

consumer - bankruptcy - stay

GMAC v. Buchanan - Superior Court - June 11, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/s25035_07.pdf

Defendant's petition to set aside a sheriff's sale rejected. Sale was not subject to any automatic stay, as a result of defendant's third bankruptcy with the immediately preceding 12-month period, during which two previous bankruptcy petitions were pending and dismissed, under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 11 USC 362(c)(4)(A)(i).

consumer - debt collection - letter not false, deceptive, or misleading

Rosenau v. Unifund Corp. - ED Pa. 0 June 28, 2007

http://www.paed.uscourts.gov/documents/opinions/07d0782p.pdf

A letter from a debt collector is not false, deceptive or misleading where it says that "if we are unable to resolve this issue within 35 days we may refer this matter to an attorney in your area for legal consideration." Plaintff alleged that it was false, etc., because it was, in fact, not prepared, reviewed, and/or sent by a legal department or a lawyer but could reasonably be read that way, from the perspective of the least sophisticated debtor (LSD).

The FDCPA, 15 USC 1692 et seq., prevents liability for "bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness and presuming a basic level of understanidng and willingness to read with care."

Here, plaintiff's intepretation was bizarre and idiosyncratic, in urging that the LSD would believe the letter came from an attorney, when in fact it did not. Even an LSD could not reasonably interpret the letter as having been written or reviewed by an attorney. There is no other reasonable intepretation and therefore the letter is not false, deceptive or misleading.

consumer - appraiser - liability

Morilus v.Countrywide Home Loans, Inc. - ED Pa. - June 20, 2007

http://www.paed.uscourts.gov/documents/opinions/07d0746p.pdf

The plaintiff sued an appraisal company under a number of consumer protection statutes, claiming that the company had conspired to unfairly and deceptively induce plaintiff to execute the loan, based on a falsely inflated appraisal price, with monthly payments that plaintiff could not afford. The court sustained defendant's motion to dismiss some of plaintiff's claims, including

- Truth in Lending Act, 15 USC 1601 et seq., because the defendant was not a creditor
- Home Ownership and Real Estate Protection Act, 15 USC 1639(a), because defendant was not a "creditor"
- Equal Credit Opportunity AQct 15 USC 1691a(e), because defendant was not involved in any credit decision
- Pennsylvania Fair Credit Extension Uniformity Act, 73 PS 2270 et seq., because defendant was not a "creditor"
- Pennsylvania Credit Services Act, 73 PS 2182, because defendant was not a "creditor" or credit services organization
- punitive damages - there was no allegation that D knew of a high risk of harm to P or that it acted deliberately and outrageously and with a conscious disregard of the risk.

The court also rejected the following claims but gave plaintiff leave to file an amended complaint with the necessary allegations, as follows

- Real Estate Settlement Procedures Act, 12 USC 2601 et seq. - to sustain her claim that the defendant was part of a fraudulent scheme to improperly split settlement charges, plaintiff would have to allege that she made a "qualified written request" to the lender stating that her account was in error

- Pennsylvania Consumer Protection Law - Plaintiff did not make any allegations that met the requirements of common law fraud, including a material misreprentation of an existing fact, scienter, jusitifiable reliance on the misrepresentation, and damages, citing Booze v. Allstate Insurance, 750 A.2d 877, 880 (Pa. Super. 2000) [But see Commonwealth v. Percudani, 825 A.2d 743 (Pa. Cmwlth 2003), noting that amendments to the CPL statute negated this requirement. ]

- fraud claim - both state and federal pleading law requires pleading with more particularity that in the existing complaint.

consumer - Fair Credit Reporting Act - refusal to investigate disputed debt

Klotz v. Trans Union, LLC - ED Pa. - July 2, 2007

http://www.paed.uscourts.gov/documents/opinions/07D0792P.pdf

In the course of rejecting the plaintiff's motion to certify a class, the court held that the defendant credit reporting agency (CRA) did not have a duty to investigate plaintiff's dispute about his credit report , since

- plaintiff's documents were prepared by a third party credit repair organization (CRO)
- plaintiff did not notify the CRA directly of his dispute, as required by 15 USC 1681i(a)(1)(A)
- plaintiff did not prepare or read the dispute, just signed it and sent it in
- plaintiff did not prove the inaccuracy of the CRA's information, as required by 15 USC 1681i

The court relied on the decision in Cushman v. Trans Union Corp. 115 F.3d 220 (3d Cir. 1997)

mobile homepark rights act - park closures - HB 1673 (proposed)

This recently introduced bill would require written notice to park residents within 30 days of the park owner entering into an agreement for the sale of the park.

You can see HB 1673 at http://www.legis.state.pa.us/cfdocs/legis/home/bills/topindex.cfm

The notice would have to include
- the estimated date that residents will be expected to vacate, no sooner than 180 days of getting notice
- the estimated date that the park will be closed.
- a receipt from one adult resident in each home showing that the notice was received
- a right of first refusal to existing residents and neootiation in good faith
- payment of relocation expenses equivalent to 6 months rent
- pay the appraised value of the home of the tenant cannot find a suitable replacement site

Park owners could not refused to admit used home thyat are in good and tenantable condition

courts- appeals - MDJ judgments - date of judgment

Lloyd, Inc. v. Microbytes, Inc. - Superior Court - July 9, 2007

http://www.aopc.org/OpPosting/Superior/out/a10028_07.pdf

The time to appeal an MDJ judgment was held to begin to run on the "date of judgement" entered on the Notice of Judgment/Transcript Civil Case, on which the MDJ signed the judgment, rather than the next day, on which the Notice was processed.

A judgment is "entered" under MDJ Rule 1002 when the judgment form is signed by the MDJ, not when it is printed out and the process of providing notice of the judgment is initiated. A judgment is encountered simultaneously with the recordation of the judgment on the pre-printed judgment/transcript form. The rules could have allowed the appeal period to begin on the date the notice is printed. They do not, so "we must assume that the appeal period was meant to begin with the signing of the judgment form by the magisterial district judge."

mortgage foreclosure - Act 91 notice - local consumer counseling agency - jurisdiction

Washington Mutual v. Carr - CP Adams County - July 5, 2006
49 Adams L.J. 17 (CP Adams 2006)

In what the court said was a matter of first impression in the state, it held that Act 91 requires a mortgage holder to give the name and address of a "local" consumer credit counseling agency (CCCA), 35 P.S. 1680.403c(b)(1), which the Pa. Housing Finance Agency has indicated mean as being "for the county" in which the property in located. In the instant case, the mortgagee listing 47 CCCAs but none in the county where the property was located and only five in the neighboring counties comprising south central Pennsylvania.

Citing case law to the effect that Act 91 is meant to protect vulnerable consumers unschooled in the complex world of mortgage foreclosure from the loss of their homes due to ignorance of their rights in a sometimes sharp practice of lenders," the court found the "Bank's cavalier shotgun approach to proving appropriate notice to a mortgagor is insufficient to satisfy the jurisdictional prerequisites provided for in Act 91." The court found that the defect could not be cured by amendment and dismissed the complaint, finding that strict and not just substantial compliance with Act 91 was required, since proper notice under Act 91 is a jurisdictional matter. PHA v. Barbour, 592 A.2d 47, 48 (Pa. Super. 1991). "[L]ack of compliance, even if minimal or inadvertent, denies the Court jurisdiction."

PFA - standing - sexual/intimate partner - victim of sexual assault

Scott v. Shay - Superior Court - June 26, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/a37040_06.pdf

Victim and perpetrator of sexual assault are not "family or household members" or "sexual or intimate partners."

In addition, there was no evidence of "abuse" in the case. Two encounters more than a year apart do not establish a course of conduct. Nor did plaintiff have a reasonable fear of bodily injury from defendant's actions.

UC- voluntary quit - voluntary retirement program

Davila v. UCBR - Commonwealth Court - June 26, 2007

http://www.courts.state.pa.us/OpPosting/CWealth/out/255CD07_6-26-07.pdf

A Claimant who quit her job pursuant to requirements of a voluntary retirement program did not have good cause to leave her job, where continuing work was available and she was not in danger of losing her job. The fact that the program required her to retire did not constitute good cause, since she entered the program voluntarily.

UC - voluntary quit - childcare

Shaffer v. UCBR - Commonwealth Court - June 25, 2007

http://www.courts.state.pa.us/OpPosting/CWealth/out/119CD07_6-25-07.pdf

Claimant held not to have proved a necessitous and compelling reason to quit her job when her employer moved its operations, thus increasing her commuting time and causing the loss of her parents' help with childcare. The court said that the claimantdid not "establish that she exhausted all other alternative arrangements, such as making a concerted effort to find another baby-sitter or locate a suitable day care center." (emphasis added)

Her testimony showed that she "investigated only one daycare facility" and "did not offer evidence that she looked in any other childcare arrangements" or that she properly explored alternative arrangements for her old son's before and after school care. (emphasis in original). The claimant "did not establish that she made a concerted effort to find alternative childcare arrangements." (emphasis added)

consumer - floating forum selection clause

Susquehanna Patriot Commcl. Leasing Co. v. Holper Industries, Inc. - Super. Ct. - June 12, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/a24021_06.pdf

A "floating" forum selection clause (FFSC) in contracts concerning equipment leases was held to be enforceable under Pennsylvania law., under the general principles set out in Patriot Commcl. Leasing Co. v. Kremer Restaurant, 915 A2d 647 (Pa. Super. 2006) http://www.courts.state.pa.us/OpPosting/Superior/out/A24012_06.pdf posted and discussed in the PLAN Updates in January 2007.

The equipment was advertised by the lessor, NorVergence, as providing 30%-60% savings to the lessees, through the use of a specific device. In fact, the device was not capable of providing any reduced savings and was worth a fraction of its selling price. Immediately after the lease-contracts were consummated, NorVergence assigned them to 3rd party finance companies, including appellant. The original lease said that the money on the rental agreements was owed regardless of whether NorVergence provided the promised services. After collecting millions on the assignments, NorVergence declared bankruptcy. The lessees stopped making payments to the assignees, who then sued in Pennsylvania on leases executed by small business entities in New Jersey and Maryland.

After setting out the split of authority regarding the enforceability of the FFSC and the difficulty in disassociating the "obvious and egregious fraud" used to procure these leases from the analysis of whether to uphold the FFSC, the court upheld them in these cases, noting the "in the interest of judicial uniformity, all cases must be analyzed in accordance with overriding principles of law that cannot depend upon facts not implicated in the application on those principles. We must confine ourselves accordingly."

The court in Patriot Commercial Leasing held that where the parties have freely agreed to a forum selection clause, which was not unreasonable at the time, it will only be held unreasonable where its enforcement, under all of the circumstances, would seriously impair a party's ability to pursue its case. Here, the defendants are in states which border Pennsylvania; and many of them have the same attorney; many of their claims can be heard in the same proceeding.


There has been "nationwide litigation, including litigation by various state attorneys general and the FTC about this issue, concerning leases negotiated by NorVergence, which assigned various leases for telecommunications equipment to Appellant Susquehanna PCL. See, http://www.attorneygeneral.gov/consumers.aspx? and http://www.ftc.gov/opa/2005/07/norvergence.shtm

real property - tax sale - notice - new sale

Willard v. Delaward Co. Tax Claim Bureau - April 276, 2007

http://www.courts.state.pa.us/OpPosting/CWealth/out/1319CD06_4-26-07.pdf

Record owners of property listed but then removed from one judicial tax sale, then relisted for another sale, must get new , separate notice of the second sale. The second sale is not merely a continuation of the original sale. There is no provision in the Real Estate Tax Sale Law for the concept of a "continued" judicial sale.

real estate - tax assessment - appeal - base year value v. current market value

Daugherty v. County of Allegheny - Commonwealth Court - March 27, 2007

http://www.courts.state.pa.us/OpPosting/CWealth/out/1777CD06_3-27-07.pdf

County Board of Assessment lacked the statutory authority to limit assessment appeals to challenge to base year market value, rather than challenge that assessment exceeds current market value.

mortgage foreclosure - predatory loan - arbitration - limitation of consumer judicial remedies

Salley v. Option One Mortgage Corp. - Pa. Supreme Court - May 31, 2007 majority

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-34-2006mo.pdf dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-34-2006do.pdf

In a case arising from a federal court's certification of the question to the state supreme court, the state court held that an arbitration agreement consummated in connection with a residential mortgage loan which limited a consumer's judicial remedies related to foreclosure is not presumptively unconscionable. The exceptions from arbitration involved creditor remedies exclusively, including: foreclosure; self-help remedies (such as repossession); and ancillary remedies such as sequestration, attachment, replevin, and garnishment.

The federal suit arose in the context of a consumer suit "asserting violation of various mortgage-regulation and consumer-protection laws by a sub-prime lender, i.e., a financial institution affording higher-interest loans to consumer with impaired credit histories."

The court apparently accepted the holding in Harris v. Green Tree Financial Corp., 183 F.3d 173 (3d Cir. 1999), interpreting Pa. law to be that the mere fact that the lender retains the option to litigate some issues in court, while the consumer must arbitrate all claims does not make the arbitration agreement unenforceable.

Although the court did not say that it was overruling the decision, only that it "swept too broadly," the court apparently rejected Lytle v. CitiFinancial Services, Inc. 810 A.2d 643 (Pa. Super. 2002), which had held that "under Pennsylvania law, the reservation by [a financial institution] of access to the courts for itself to the exclusion of the consumer creates a presumption of unconscionability."

The case also involved the Federal Arbitration Act, 9 USC 2, which expresses a liberal federal policy favoring arbitration agreements. The FAA was meant to "overcome state legislative and judicial efforts to undermine the enforceability of arbitration agreements, inter alia, by establishing a substantive rule of federal law placing such agreements upon the same footing as other contracts." In Prima Paint Corp v. Flood & Conklin Mfg. Co., 388 US 395, 404 (1967) and Buckeye Check Cashing, Inc. v. Cardegna, 546 US 440 (2006), the Supreme Court "has determined that a challenge to the validity of a contract as a whole, and not specificlaly to an arbitration clause, must be presented to the arbitrator and not the courts....The courts may consider, in the first instnace, only those challenges that are directed solely to the arbitration component itself."

The court rejected the argument about the effect of a split-forum, that is, the consumer having "to litigate nearly identical statutory claims twice, one in state court against he foreclosing entity (to whom the loan has been sold/assigned in a secondary market), and a second time in an arbitral forum against....the lender."

Thus, it said that "although this Court is cognizant of the phenomenon of predatory lending and its deleterious effects, because those asserted aspects of this case go to not only the arbitration agreement but also to the underlying merits of the parties' larger dispute, we believe that any relevant contentions in this regard are for an arbitrator in the first instance, under the rationale set forth in the Prima Paint/Buckeye line of decisions."

However, the court did not entirely foreclose the consumer's arguments, noting that it had "taken care...not to exclude the possibility that the arbitration agreement might otherwise be deemed to be unconscionable under Pennsylvania law if [the plaintff's] predatory lending claims are proven, since we have little doubt concerning the unreasonableness of such an adhesion agreement when used as a tool of established predatory lending."

The court also noted "a substantial level of procedural unconscionability present in the sub-prime lending industry, as it employs adhesion contracts and, by design, targets those with few financial choices. Procedural unconscionability would be particularly high in the present case if various of the facts asserted by [the plaintiff], such as lender non-disclosure and dishonesty in the application and settlement process, are true. Furthermore, [the lender] does not deny that its agreement with [the consumer] was one of adhesion. Nevertheless, merely because a contract is one of adhesion does not render it unconscionable and unenforceable as a matter of law."

The court relied heavily on a New Jersey case, Delta Funding Corp. v. Harris, 912 A.2d 104 (NJ 2006)

The consumer-plaintiff waived several important arguments presented by his amici, including whether the costs of arbitration would be prohibitively expensive.

Justice Baldwin, dissenting, argued that a) the majority would have an arbitrator rather than the court decide the important question of unconscionability, and b) that the consumer's was attacking the arbitration clause, not the contract as a whole. She suggested that the court follow contrary decisions from Wisconsin, Tennessee, West Virginia and California in finding that "one-sided arbitration agreements are unconscionable and void."

Truth-in-Lending - "tolerance for accuracy" not an affirmative defense

Sterten v. Option One Mortgage Corp. - ED Pa. - March 22, 2007

http://www.paed.uscourts.gov/documents/opinions/07d0409p.pdf

The "tolerance for accuracy" provision of the Truth in Lending Act, 15 USC 1605(f), is not an affirmative defense under Rule 8(c) of the Federal Rules of Civil Procedure.

Where the creditor made it clear in the pleadings that the discrepancy in the finance charge ($57) came within the $100 limit of sec. 1605(f) of the TILA, the notice policies of the federal rules was satisfied. Section 1605(f) "defines the parameters of an element of the TILA violation. It does not create a defense. Only if the total of the improper finance charges exceeds $100 is there a violation." Where as here the discrepancy was less thatn $100, there is no statutory violation.

The federal rules "reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits."

civil procedure - prothonotary - duty to accept pleadings

Sollenberger v. Lee, Prothonotary - Commonwealth Court - June 8, 2007

http://www.courts.state.pa.us/OpPosting/CWealth/out/82CD07_6-8-07.pdf

"The prothonorary is not an administrative officer who has the discretion to interpret or implement rules or statutes....Therefore if documents tendered for filing are proper on their face and in conformity with rules of court, a prothonotary does not have the discretion to refuse to enter them...."

Supreme Court Holds that Parents Can Pursue IDEA Claims in Federal Court

The United States Supreme Court has held that parents seeking to enforce rights granted to their children under the Individuals with Disabilities Education Act (IDEA) have independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free appropriate public education for their child and that these right may be enforced by the parents in the federal courts on their own behalf without the assistance of legal counsel.

In Winkelman v. Parma City School District, decided May 21, 2007, the Court reversed the order of the Sixth Circuit Court of Appeals dismissing the Winkelmans’ appeal unless they obtained counsel to represent their son, Jacob.

The Sixth Circuit relied on Cavanaugh v. Cardinal Local School Dist., 409 F. 3d 753 (2005), where the Court of Appeals had rejected the proposition that IDEA allows nonlawyer parents raising IDEA claims to proceed pro se in federal court. The court ruled that the right to a free appropriate public education “belongs to the child alone,” 409 F. 3d, at 757, not to both the parents and the child. It followed, the court held, that “any right on which the [parents] could proceed on their own behalf would be derivative” of the child’s right, ibid., so that parents bringing IDEA claims were not appearing on their own behalf.

The Supreme Court reversed, concluding that IDEA grants parents independent, enforceable rights. These rights, which are not limited to certain procedural and reimbursement-related matters, encompass the entitlement to a free appropriate public education for the parents’ child.

The Court stated that the Court of Appeals erred when it dismissed the Winkelmans’ appeal for lack of counsel. Parents enjoy rights under IDEA; and they are, as a result, entitled to prosecute IDEA claims on their own behalf.

View the Decision (Legal Information Institute - Cornell Law School)

custody - standing - step-grandparents - parents not separated

Helsel v. Puricelli - Superior Court - May 21, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/a07037_07.pdf

A step-grandfather is not a "grandparent" under the the Custody and Grandparents Visitation Act (GVA), 23 Pa. C.S. 5301 et seq.

Even if he were, he would not have standing under the facts of this case, in which the parents, who had been separated for more than 6 months at one time, were back together as an intact family at the time the step-grandfather filed his action. Sec. 5312 allows a grandparents to seek "reasonable partial custody or visitation" where the parents "have been separated for six months or more..." The court held that the "GVA only applies where parents separated at least six months before the filing of the custody petition and remain separated at the time the petition is filed."

custody - standing

Morgan v. Weiser - Superior Court - May 7, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/a41021_06.pdf

Biological father whose parental rights were terminated does not stand in loco parentis to the child, given that, after the termination, he had minimal partial custody of child, paid minimal child support, and did not live with the child in a familial setting at any time. His contact with the child was "akin to babysitting and caretaking."

attorneys fees - reasonableness

McMullen v. Kurtz - Superior Court - May 17, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/A37007_06.pdf

Legal fees in a contract must be reasonable even if the contract providing for the award of such fees does not specify that they must be reasonable. A reasonableness requirement is "implicit in the agreement."

In determining reasonableness, the court must consider, inter alia, how complicated the issues the issues in the underlying case were.

consumer protection - drug/medical/dental ads

Commonwealth v. Peoples Benefit Services - Commonwealth Court - May 14, 2007

http://www.courts.state.pa.us/OpPosting/CWealth/out/557MD05_5-14-07.pdf

The Attorney General sued PBS for consumer protection violations, alleging that PBS ads could confuse or mislead consumers into believing that PBS and its goods/services are government related, in violation of the CPL, 73 P.S. sec. 201-1 et seq.

The Commonwealth's request for a preliminary injunction was denied, even though the judge who heard the case found that PBS designed its campaign with the intent to take advantage of confusing changes to Medicare Part D and the PBS deliberately attempted to "push the envelope" with its marketing materials. The Court in this opinion denied both parties' request for summary judgment, finding that there were still unresolved issues of material fact.

However, the court set out some important CPL principles, including that an act/practice is deceptive or unfair it is has the capacity or tendency to deceive. Neither the intention to deceive nor an actual deception must be proved. Rather it need only be show that the acts/practices are capable of being interpreted in a misleading way. The test for the court is to determine the overall impression arising from the totality of what is said, as well as what is reasonably implied in the ad or solicitation. The CPL is to be construed liberally to effectuate its objective of protecting consumers from fraud and unfair or deceptive business practices.

Pennsylvania Bulletin of May 5, 2007

http://www.pabulletin.com/secure/data/vol37/37-18/index.html

MDJs - Rule 112- availability and temporary assignment - civil and possessory actions
http://www.pabulletin.com/secure/data/vol37/37-18/774.html

welfare - MA - Healthy Beginnings - Health Horizons - federal poverty guidelines 2007
http://www.pabulletin.com/secure/data/vol37/37-18/806.html

custody - support - lesbian couple, sperm donor

Jacob v. Jacob - Superior Court - April 30, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/s15032_07.pdf

Sperm donor-father of children held liable for support -- along with lesbian couple -- on grounds of equitable estoppel and by statute, 23 Pa. C.S. 4321(2). Father -- played active part in children's lives -- ordered joined as indispensable party.

Custody award of lower court confirmed, giving
- shared legal custody to biological mother and her former partner (Appellant)
- primary physical custody to biological mother
- partial physical custody to mother's former partner and biological father (separately)

custody - setting trial date w/in 180 days of filing

Dietrich v. Dietrich - Superior Court - April 20, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/S15041_07.pdf

The court held that, since a trial was not scheduled in this case within 180 days of the date the complaint was filed, as required by Pa. R.C.P 1915.4(b) http://www.pacode.com/secure/data/231/chapter1915/s1915.4.html, the order that resulted from a trial that took place more than 180 days after filing had to be vacated and the case remanded "to restore the immediately-preceding custody order....Either party may then file a petition to modify custody pursuant to Chapter 53" of the state domestic relations act, 23 Pa. CS, and Pa RCP 1915.4. Go figure.

UC - quit v. fire - "park your truck"

Bell v. UCBR - Commonwealth Court - filed 2-20-07, ordered reported 4-20-07

http://www.courts.state.pa.us/OpPosting/CWealth/out/1806CD06_4-20-07.pdf

Journeyman plumber's argument that his supervisor's use of the phrase "park your truck" meant that he had been fired was rejected. Claimant was held to have voluntarily quit when he left the job after a confrontation, during which the supervisor used the phrase.

The UCBR resolved all critical factual issues in favor of the employer, including that the supervisor's statement that "if Claimant did not like working with [the supervisor] or Employer, provided Claimant with the option to continue his employment and did not possess the immediacy and finality of a firing."

There were also findings that the claimant had made numerous prior requests to be laid off, had not questioned the supervisor about the meaning of his statement, and that continuing work was available. Claimant's testimony and argument that "park your truck" had a special meaning in the profession--you're fired--was rejected under the totality of circumstances in the case.

PFA - withdrawal - expungement

Commonwealth v. Charnik - Superior Court - April 3, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/s69024_06.pdf

This case involves a PFA defendant's request for expungement of a) two indirect criminal contempt convictions and b) the underlying PFA order itself. The trial court and Superior Court denied both requests.

Plaintiff got a final PFA order following a contested hearing. Later, Defendant was charged with and found guilty of two (2) instances of indirect criminal contempt, for violating the final PFA order. Plaintiff later filed a petition to withdraw the PFA order, seven months after it had been entered. The trial court granted the petition. Defendant then moved to expunge both the PFA record and the record of his contempt convictions. The trial court denied both requests and the Superior Court affirmed.

conviction records - The Superior Court rejected the request to expunge the contempt convictions, stating that the "Pennsylvania legislature has strictly regulated expungement of records of convicted persons. Conviction records may be expunged only where: 1) the subject of the information reaches the age of seventy and has been free from arrest or prosecution for ten years; or 2) where the individual has been dead for three years. Criminal History Record Information Act, 18 Pa. C.S. sec. 9122(b)." (emphasis in original)

non-conviction records -
The Superior Court termed the issue of the expungement of the underlying PFA "more complicated."

It held (in n. 3) that the trial did not have jurisdiction to set aside the final PFA order seven months after it had entered it, since there had been no appeal or reconsideration of that order. Query: does this mean that a PFA plaintiff does not have the right to withdraw her/his case? See, e.g., 23 Pa. C.S. 6105(e)(2) ("Vacated or expired orders shall be purged from the registry.")

In any event , the court went on to discuss the expungement issue in detail, distinguishing between a case where a final PFA order is entered after a hearing and a case which is discontinued before the entry of a final order, e.g., where it is withdrawn after the entry of a temporary order, without any hearing and before a plaintiff has met her/his burden of proof. "Thus, when a PFA petition...has been dismissed by court order [when neither party appears at the final hearing] or the PFA proceedings never evolve beyond the temporary order stage..., expungement is proper as a matter of law" since the PFA process was "not completed" and therefore lacked the "safeguards of due process."

The court said that expungement was not proper in other circumstances and held that the decision in Carlacci v. Mazaleski, 798 A.2d 186 (Pa. 2002), should be read as "expressly limiting the remedy of expungement of PFA records to those cases where...no facts were brought forth to substantiate a finding of abuse and no final order was entered...."

In the case at bar, the request for expungement was rejected, because the final order was entered after a contested hearing at which "facts were brought forth proving the allegations of abuse by a fair preponderance of the evidence, and [the defendant] has not appealed that determination...."

Query: would the have reached the same result where the final order was entered by agreement, without any admission?

UC - hearing - continuance

Skowronek v. UCBR - Commonwealth Court - April 9, 2007

http://www.courts.state.pa.us/OpPosting/CWealth/out/2150CD06_4-9-07.pdf

The referee's denial of counsel's request for a continuance of the UC hearing was affirmed and no abuse of discretion was found, under the following circumstances:

last-minute request - The request was made just one day prior to the hearing on July 20th. The hearing notice had been sent out on July 7th. The court noted that the request was less the 24 hours prior to the hearing and was faxed when the referee office was closed, at 6:30 p.m. on the last business day before the hearing. It also cited case law saying that "last-minute requests for continuances will not be viewed favorably....."

no contact information supplied - The request did not contain contact information for claimant's counsel. The contact information was at the bottom of the attorney's stationery and did not appear on the fax, having apparently been cut off.

no good cause established - The request was vague and did not establish "good cause" on it face. The attorney said only that "I will be unavailable due to a previously scheduled appointment." The court said that this request was "vague" and similar to another case, where a continuance was requested for "unspecified personal reasons." In this case, the court said that the request did "not provide sufficient information from which the referee could determine proper cause existed to continue the hearing. Given the timing of the requests and its vague nature, no abuse of discretion is apparent."

wages - WPCL - attorney fees

Zdrok v. Main Line Mortgage Co. - Superior Court - April 5, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/a32002_06.pdf

This case was remanded for a calculation and award of attorney fees to the prevailing party below. A fee award is mandatory in an action brought under the Wage Payment and Collection Law, 43 P.S. sec. 260.9a(f), citing Oberneder v. Link Computer Corp, 696 A.2d 148, 151 (Pa. 1997). "This conclusion promotes the statute's purpose to protect employees when employers breach a contractual obligation to pay wages."