foreclosure - HEMAP notice - jurisdiction

Beneficial Consumer Discount Company v. Vukmam - Superior Court - January 30, 2012

http://www.pacourts.us/OpPosting/Superior/out/a38038_11.pdf

The sheriff's sale of a home was properly set aside by the trial court, which held that it lacked subject matter jurisdiction over the matter because the mortgagee failed to comply with the notice requirements of the Homeowner’s Emergency Mortgage Act, 35 P.S. §§ 1680.401c et seq. (“Act 91”), in that it failed to inform her that she had thirty days to have a face-to-face meeting with Appellant.

Subject matter jurisdiction

In the context of discussing subject matter jurisdiction, the Superior Court has held that “the notice requirements pertaining to foreclosure proceedings are jurisdictional, and, where applicable, a failure to comply therewith will deprive a court of jurisdiction to act.” Philadelphia Housing Authority v. Barbour, 592 A.2d 47, 48 (Pa. Super. 1991) (citation omitted), affirmed without opinion, 615 A.2d 339 (Pa. 1992); see also, Marra v. Stocker, 615 A.2d 326 (Pa. 1992) (concluding that, despite the fact that a judgment had been entered in the underlying mortgage foreclosure action, the trial court erred by refusing to set aside a sheriff’s sale where the mortgagee failed to provide to the mortgagor the mortgage foreclosure notice required by 41 P.S. § 403). The trial court thus properly considered whether the pertinent Act 91 notice was deficient.

At the time relevant to this appeal,** Act 91 provided that: Before any mortgagee may accelerate the maturity of any mortgage obligation covered under this article, commence any legal action including mortgage foreclosure to recover under such obligation, or take possession of any security of the mortgage debtor for such mortgage obligation, such mortgagee shall give the mortgagor notice as described in section 403-C. [35 P.S. § 1680.403c], which states that the "notice shall also advise the mortgagor of his delinquency or other default under the mortgage and that such mortgagor has thirty (30) days to have a face-to-face meeting with the mortgagee who sent the notice or a consumer credit counseling agency to
attempt to resolve the delinquency or default by restructuring the loan payment schedule or otherwise." [emphasis added]

In this case, the parties agree that the Act 91 notice told the homeowner that she had thirty days to have a face-to-face meeting with a consumer credit counseling agency but did not tell her that that she could meet face-to-face with the mortgagee, i.e., Appellant. The trial court interpreted the language highlighted above to mean that the Act 91 notice had to tell the homeowner about both options and held that, because the Act 91 notice failed to inform the homeowner of the second option, the notice was deficient and it lacked subject matter jurisdiction to
entertain the matter. The trial court set aside the sheriff’s sale and the judgment and then dismissed Appellant’s complaint without prejudice.

Wells Fargo Bank v. Monroe distinguished - The court distinguished its opinion in Wells Fargo Bank v. Monroe, 966 A.2d 1140 (Pa. Super. 2009), where it held that a homeowner who actually met with a mortgagee had to prove that she was prejudiced by the deficiency in the Act 91 notice. The court said "We find Wells Fargo Bank to be sufficiently distinguishable from the matter sub judice, such that the decision in Wells Fargo Bank has no impact on our decision in this case. As best we can discern, the deficiencies cited by the Monroes, with regard to the Act 91 notice they received, did not implicate Act 91’s explicit requirement that the mortgagee’s Act 91 notice must inform the mortgagor that the mortgagor can meet face-to-face with the mortgagee or a consumer credit counseling agency. Moreover, unlike in Wells Fargo Bank, there is no failure on the part of the parties to this appeal to provide this Court with pertinent legal authority. ,. . . .Act 91 explicitly states that, before a mortgagee can even commence a mortgage foreclosure action, it must give the mortgagor the notice described in Section 1680.403c; Subsection 1680.403c(b)(1) clearly and unambiguously mandates that the notice must inform a mortgagor, inter alia, that the mortgagor can meet face-to-face with the mortgagee."

The court held that the trial court had properly set aside the sheriff's sale.

____________

Note that the HEMAP statutuory provisions may not be operative at the present time, because of the dormancy of the program due to a lack of adequate funding. See, the statement of Brian Hudson, exec. director of PHFA. PHFA published a notice to this effect in the Pennsylvania Bulletin on May 28, 2011, stating that, because the “Agency will have insufficient money available in [HEMAP] . . . to accept new applications for emergency mortgage assistance,” it will only accept applications “up to and including” June 30^th. In fact, some previously approvals are being rescinded, back to around March 2011. As Brian Hudson's June 30th statement says: Lenders and servicers are reminded that . . . Act 91 requires compliance with the Act 91 Notice prior to instituting a foreclosure action in accordance with Section 409-C. . . August 27, 2011, [is the date] after which mortgagees may take legal action to enforce a mortgage without any additional restriction or requirement under Act 91. [emphasis added]

UC - issue-switching

Saleem v. UCBR - Cmwlth. Court - January 27, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/152CD11_1-27-12.pdf

The UCBR erred in finding claimant ineligible for benefits, because the reason given for Claimant's discharge was not the reason cited by the Referee and Board in finding him ineligible for benefits. The reason given for the employer appeal from the initial grant of benefits by the UCSC was that the claimant was an independent contractor. At the hearing and on appeal to the Board, the referee and Board reversed, finding that the claimant, a clinician, had committed willful misconduct by mishandling a situation involving a student at a school for troubled students.

"In order to deny benefits to a discharged employee, the employer’s stated reasons for the discharge must be the actual cause of the claimant’s unemployment." Charles v. UCBR, 764 A.2d 708, 711 n.4 (Pa. Cmwlth. 2000) (emphasis added) (citing Century Apartments, Inc. v. UCBR, 373 A.2d 1191, 1192 (Pa. Cmwlth. 1977)). "Not only must the employer prove the claimant committed some act which constitutes „willful misconduct,‟ the employer must also prove that the act in question was the actual reason for the claimant's discharge." Panaro v. UCBR, 413 A.2d 772, 774 (Pa. Cmwlth. 1980) (emphasis added). The Board "may not in its findings rely on reasons for discharge that were not considered relevant by the employer." Tundel v. UCBR, 404 A.2d 434, 435 (Pa. Cmwlth. 1979). The Board contends that, because Employer could have discharged Claimant for violating Employer‟s policies, it, essentially, could disregard the reason given by Employer for discharging Claimant and find Claimant ineligible on a different basis. However, this is contrary to Charles, Panaro, Tundel, and Century Apartments.

After-discovered evidence cases are not on point - In the few cases where the court has permitted an employer to assert reasons other than those given for an employee‟s separation to contest eligibility for benefits, those reasons were based, inter alia, on after-discovered evidence of criminal conduct that, in and of itself, would have supported the discharge. In Preservation Pennsylvania v. UCBR, 673 A.2d 1044 (Pa. Cmwlth. 1996), the Court stated that there is a narrow exception to the rule "that the burden is on an employer to prove an employee‟s willful misconduct and that it was the actual reason for the employee‟s termination from employment." Id. at 1047-48. The court held in Preservation Pennsylvania, that the claimant, who was otherwise eligible for benefits based on the stated reason for her separation from employment, was ineligible because she embezzled funds from her employer, which was not discovered until after she had been separated from her employment due to the employer‟s budgetary problems. Id. at 1048. It stated that "the Board is not deprived of authority to permit evidence of the after-discovered criminal conduct [and t]he Board may thereafter reconsider the employee‟s entitlement to benefits in light of the after-discovered criminal conduct and terminate benefits if the employer sustains its burden of proof." Id. Similarly, in PrimePay, LLC v. UCBR, 962 A.2d 684, 688 (Pa. Cmwlth. 2008), it held that an employer can meet its burden to disqualify an employee from receiving benefits if it proves, by after-discovered evidence, that the employee‟s willful misconduct was concealed and, had the employer been aware of the conduct, the employer would have discharged the employee.

Here, unlike Preservation Pennsylvania and PrimePay, LLC, there was no after-discovered evidence of willful misconduct and there was no concealment of the alleged willful misconduct, i.e., how Claimant handled the incident with Student. The Board‟s finding of willful misconduct, through Claimant‟s violation of Employer‟s procedures, is not based on information discovered after Claimant‟s discharge. Rather, this conduct was contemporaneous to his filing of criminal charges against Student, which was the reason Employer fired Claimant.

PFA - family/household member - relationship by affinity - child of long-time paramour

Commonwealth v. Walsh - Superior Court - January 19, 2012

http://www.pacourts.us/OpPosting/Superior/out/a33042_11.pdf

Conviction for contempt of PFA order upheld for violating terms of order prohibiting threats. Appellant threatened the protected party -- S.S., the teen-age daughter of his paramour of 13 years -- when he told the daughter's friend that if he saw SS, "she'd be fucked." The friend relayed this message to SS, who went to the police, who filed a contempt petition.

Challenge to SS's status as a protected party because of lack of a family relationship was rejected. SS had lived with appellant for about 13 years, during which time he treated her as a stepdaughter. She left appellant's home because he had sexually abused her.

The court determined that Appellant and SS were related by affinity. The term “affinity” is not defined in the PFA Act. See 23 Pa.C.S. § 6102. The dictionary defines “affinity” as, inter alia, “related by marriage or by ties other than those of blood.” Webster’s American Dictionary, 14 (2nd College ed. 2000) (emphasis added). Instantly, S.S. has ties other than those of blood to Appellant as S.S.’s two half-siblings are the natural children of Appellant and S.S.’s mother. Given the remedial purpose of the PFA Act it is incumbent upon us to interpret “affinity” so as to include this relationship.

Challenge to sufficiency of the evidence also rejected, since the order prohibited contact with SS, either directly or through third parties.

Appellant's subpoena of phone records was properly rejected, where it was not served until the day before the contempt hearing.

admin. law - due process

Gombach v. Department of State, 692 A.2d 1127, 1129-30 (Pa. Cmwlth. 1997)

The right to due process is equally applicable to administrative agencies as it is to judicial proceedings. The fundamental requirements of due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Procedural due process requires that the individual be given adequate information with which to prepare a defense. For notice to be adequate, it must at the very least contain a sufficient listing and explanation of any charges against the individual.

See also First National Bank of Pike County v. Department of Banking, 300 A.2d 823, 825 (Pa. Cmwlth. 1973) (The essential elements of due process in administrative proceedings are "notice and [the] opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal" with jurisdiction over the matter.)

UC - vol. quit - late payment of wages - single instance

Smith v. UCBR - Cmwlth Court - January 9, 2012 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/835CD11_1-9-12.pdf

Claimant did not have good cause to quit work because of late payment of wages where

- only one instance of late payment

- Claimant did not complaint to ER before quitting

- Claimant did not tell ER before she quit.

UC - refusal of drug-testing

Keeler Transport v. UCBR - January 9, 2012 - unreported memorandum decision.

http://www.pacourts.us/OpPosting/Cwealth/out/820CD11_1-9-12.pdf

Claimant held ineligible for UC because of failure to immediately report for drug testing when instructed to do so.

In UGI Utilities, Inc. v. Unemployment Compensation Board of Review, 851 A.2d 240 (Pa. Cmwlth. 2004), this Court held that Section 402(e.1) of the Law governs discharges related to drug tests and not the general willful misconduct discharge governed by Section 402(e) of the Law. UGI Utilities, 851 A.2d at 245. See also Architectural Testing, Inc. v. Unemployment Compensation Board of Review, 940 A.2d 1277, 1281 (Pa. Cmwlth. 2008) (noting both the failure of a drug test, and the refusal to take a drug test, are now analyzed under Section 402(e.1)). Accordingly, Section 402(e.1) requires an employer to (1) demonstrate that it adopted a substance abuse policy; and (2) that the employee violated that policy. UGI Utilities, 851 A.2d at 252. Further, the policy permitting drug and alcohol testing need not be detailed. Architectural Testing, 940 A.2d at 1282. Once the employer establishes the policy, the burden shifts to the employee to show that the policy was either trumped by a statute or collective bargaining agreement. UGI Utilities, 851 A.2d at 252.

Here, Employer’s substance abuse policy states that [r]efusal to submit to a requested alcohol or drug test is grounds for immediate discharge. Refusal includes refusing to report immediately to the testing location upon request …. The Federal regulation, by which Employer is bound, also states that drivers must report immediately for testing. 49 C.F.R. §382.305(l). The Federal regulation provides that an employee is considered to have refused a drug test when he "fail[s] to appear for any test . . . within a reasonable time, as determined by the Employer, . . . after being directed to do so by the employer." 49 C.F.R. §40.191(a)(1)

Claimant did not comply with the requirement to proceed immediately to the testing facility, i.e., first thing Monday morning. Telling Employer that he would go for the drug screen after he returned from Massachusetts constitutes a "refusal" as that term is defined in Employer’s substance abuse policy and in FMCSA regulations

abuse - expungement - single hearsay statement by alleged victim

In re E.A. - Cmwlth. Court - January 9, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/650CD11_1-9-12.pdf

Corroboration needed for hearsay statement of very young child. - CYS determintion of abuse based on single out-of-state DVD about which defendant had no notice does not support finding of abuse. The Supreme Court‟s guidelines in A.Y. appear to allow that, in special situations, uncorroborated hearsay testimony of a child can constitute substantial evidence of child abuse. We have been unable, however, to find a single instance of an indicated report of abuse being based upon a single, out-of-court statement of a child of any age, let alone a child of four years.

Daughter‟s statements of sexual abuse involve Father, Father's wife, a cow and dogs. Her statements ramble, describing incidents that took place under a bed and in her bed, years ago or several days ago. Daughter's statement is simply not competent to stand as the sole support of a finding of sexual abuse.

Daughter's statement was not corroborated by the testimony of CWS workers, whose only experience with Daughter was attendance at the interview is not corroboration. Their testimony about what Daughter said at her interview is double hearsay that was redundant, not corroborative, of the out-of-state DVD. Hearsay can not constitute independent corroborative evidence of hearsay. A.P. v. Department of Public Welfare, 696 A.2d 912, 916 (Pa. Cmwlth. 1997). In short, there was no corroboration to support the Bureau‟s finding that Father sexually assaulted Daughter.

As noted, there is no prior case where a court has allowed a child‟s uncorroborated hearsay statement to serve as the sole evidence to support a factual finding of child abuse. Indeed, county agencies routinely offer corroborating evidence. In C.E. v. Department of Public Welfare, 917 A.2d 348, 351 (Pa. Cmwlth 2007), for example, the county agency offered testimony from the emergency room physician who treated the child as corroborating evidence. See also A.O. v. Department of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003) (testimony of physician with expertise in sexually abused children offered to corroborate hearsay statements of child victim); Mortimore v. Department of Public Welfare, 697 A.2d 1031 (Pa. Cmwlth 1997) (testimony of physician offered to corroborate hearsay statement of child victim of sexual abuse); D.P., 733 A.2d 661 (testimony of child psychiatrist and medical doctor offered to corroborate hearing statement of child victim, although the child‟s statement was held inadmissible). Here, the CYW offered no comparable evidence to corroborate Daughter‟s out-of-court statement that Father, as well as his wife and family dogs, had subjected her to various acts of defilement. The evidence CYS claims to be corroboration was only more hearsay.

Where the hearsay statement is that of a very young child, corroboration is needed to find that a perpetrator engaged in sexual intercourse, cunnilingus and digital penetration of the child, as was reported here by CYS. A medical examination to confirm vaginal penetration and an investigation of Daughter‟s living situation in New York, to consider what other persons had an opportunity to abuse Daughter in the past, should have been undertaken. This is not the exceptional case where uncorroborated hearsay alone may be sufficient to justify a finding of abuse.

The DVD was admitted without prior determination of indicia of reliability - In his second issue, Father contends that the hearing officer erred, procedurally, in ruling that the New York DVD was admissible in lieu of Daughter‟s testimony. We agree. The ruling was made before the hearing officer reviewed the New York DVD. A stenographer did not transcribe the videotaped interview, so the hearing officer did not have a written transcript available at the in camera hearing. Instead, the hearing officer relied upon the telephonic statements of Hall, the interviewer, for a recital of what Daughter said in the interview. CYS opinion that the videotaped interview of Daughter satisfied the requirements of 42 Pa. C.S. §5986(a)(1) was beside the point. It is the job of the factfinder to ensure "that the time, content and circumstances of the statement provide sufficient indicia of reliability …." 42 Pa. C.S. §5986(a)(1) (emphasis added). This requires a review of the hearsay statement to determine its admissibility.

Here, the factfinder relied upon CYS testimony in admitting the New York DVD in lieu of Daughter‟s testimony. This was error. CYS testimony was appropriate for establishing the time and circumstances of Daughter‟s statement. However, only by viewing the New York DVD could the hearing officer determine whether the content of Daughter‟s statement demonstrated sufficient indicia of reliability to warrant its admission. By admitting the New York DVD on the basis of a CYS statement of what it contained, the hearing officer repeated the mistake identified in A.Y.: [T]he Agency was able to rely on its own employees‟ recitation of what the three-year old child stated had occurred … [This] procedure … prevented the hearing officer from having any opportunity to judge the evidence except through the prism provided by the Agency. A.Y. at 125, 641 A.2d at 1152 (emphasis added). Likewise here, the hearing officer decided the admissibility of the New York DVD "through the prism provided by" Wyoming County.

Alleged abuser not required to provide contradictory evidence - The hearing officer criticized Father for not providing "significant contradictory evidence." This was not Father‟s burden. We do not require litigants to prove a negative because it cannot be done. It was Wyoming County‟s duty to investigate the serious allegations made by Mother, and it did not do so. It relied entirely upon New York personnel, for whose work Wyoming County could not vouch. Wyoming County did not investigate Father‟s background, character, reputation or family or offer any evidence such as a physical exam or evaluation of a physician or psychologist to corroborate the New York DVD hearsay statement.

Accordingly, we conclude that substantial evidence does not support the factual finding that Father committed a sexual assault and, therefore, reverse

UC - vol. quit - firm offer of new job - temp. v. permanent

Solar Innovations v. UCBR - January 5, 2012 - Cmwlth. Court (2-1)

http://www.pacourts.us/OpPosting/Cwealth/out/933CD11_1-5-12.pdf

Although an employee who resigns from employment to accept a "firm offer" of employment elsewhere may be eligible for UC benefits when the second job proves to be unavailable, Empire Intimates v. UCBR, 655 A.2d 662 (Pa. Cmwlth. 1995), this is not what occurred here. The second job did not become unavailable to Claimant; it simply ran the course expected of a temporary contract job with a finite period of employment.

The issue presented here appears to be one of first impression5—whether one can quit a stable, full-time, non-temporary job and accept a temporary job, yet remain eligible for UC benefits when the temporary job foreseeably ends, as it did in this case after approximately one month.

Here, the Board found that Claimant‟s employment with Staffing Agency was “temporary, between one and six months.” The Board additionally found that “[t]his assignment could be followed by another.”

"It is well-established that . . . „the receipt and acceptance of a firm offer of employment does constitute termination for cause of a necessitous and compelling nature.‟" Township of North Huntingdon, 450 A.2d at 769 (quoting Steinberg v. UCBR, 383 A.2d 1284, 1286 (Pa. Cmwlth. 1978)). "The offer of employment, however, must be definite," Id. at 769 (citing Baron v. UCBR, 384 A.2d 271, 272 (Pa. Cmwlth. 1978)), and "the claimant must act prudently with regard to his employer." Id. (citing UCBR v. Pennsylvania Power and Light Co., 351 A.2d 698, 699 (Pa. Cmwlth. 1976)). "[T]he mere possibility of obtaining another job is insufficient to establish that employment was terminated for good cause." Id. In addition, although "the claimant may have personal, economic, or career reasons for making h[is] decision to leave the employer . . . that does not constitute a necessitous and compelling cause for voluntarily quitting." Empire Intimates, 655 A.2d at 665.

The Board cites Brennan v. UCBR, 504 A.2d 432, 433 (Pa. Cmwlth. 1986) and Antonoff v. UCBR, 420 A.2d 800, 801 (Pa. Cmwlth. 1980), are distinguishable; neither involved a claimant quitting non-temporary employment to take a new position known to be temporary at the time of quitting.

Here, as in Empire Intimates, the ultimate unavailability of work for Claimant was the result of Claimant‟s personal choice. Instead of remaining at his full-time, non-temporary position with Employer, Claimant chose to accept a temporary job with Staffing Agency, which ended within the period of time the position was expected to end, sometime between one and six months. The offer and acceptance of a known temporary position is not akin to situations where a claimant is offered non-temporary, but part-time, work that subsequently becomes unexpectedly unavailable; rather, it is more like quitting a full-time, non-temporary position in favor of a seasonal position of limited duration. The claimant in the former situation is eligible for benefits, Brennan, 504 A.2d at 433; the claimant in the latter situation is not. Luongo v. UCBR, 190 A.2d 344, 346 (Pa. Super. 1963) (holding that quitting a full-time position to work a seasonal position.

Claimant accepted the temporary position with Staffing Agency believing that, after the first position ended, there was a possibility of future assignments through Staffing Agency. The mere possibility that other assignments could become available “is insufficient to constitute good cause for voluntarily terminating one‟s employment.” Pennsylvania Power and Light, 351 A.2d at 699. To establish eligibility for UC benefits pursuant to Section 402(b) of the Law, the claimant must show that he acted with ordinary common sense and made a reasonable effort to preserve his employment. Brunswick Hotel & Conference Center, 906 A.2d at 660.

We conclude that Claimant‟s actions here are imprudent where he quit his regular, non-temporary job in exchange for a temporary job of fixed duration. Thus, as we did in Pennsylvania Power and Light, we conclude that Claimant‟s actions do not “demonstrat[e] that [he acted] with ordinary common sense and prudence,” Id. at 699, or that he made a reasonable effort to preserve his employment.

Dissent - Just because a job is temporary does not mean that a claimant is not entitled to unemployment compensation. According to the Law, a claimant is eligible for unemployment compensation benefits provided he "earned no less than $50 for at least 16 weeks during the five calendar quarters preceding the first day of the claimant’s unemployment." Earnest v. UCBR, 30 A.3d 1249, 1254 (Pa. Cmwlth. 2011) (citing Section 404(c) of the Law, 43 P.S. §804(c)). This financial eligibility provision does not distinguish between permanent and temporary employment. I do not believe that an employee becomes ineligible for unemployment compensation simply because he leaves full-time employment for other work as employees are free to change jobs in order to, inter alia, reduce the total number of hours worked or change shifts. See Baldwin-Whitehall School District v. UCBR, 848 A.2d 1021 (Pa. Cmwlth. 2004). The permanent or temporary nature of the employment does not change the fact that Claimant was laid off through no fault of his own. Given the fact that employment is typically "at will," Claimant’s situation is no different than if he had accepted a "permanent" position with another employer but was laid off after only one month due to lack of work.

UC - employee v. indpt. contractor

Tobey-Karg Sales Agency v. Dept. of Labor and Industry - Cmwlth. Court - December 30, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/283CD10_12-30-11.pdf

Company petitioned for reassessment for past unpaid Unemployment Compensation (UC) contributions, interest, and penalties on wages not previously reported to the Department.

Sales reps held to be independent contractors rather than employees under Section 4(l)(2)(B) of the Unemployment Compensation Law (Law),1 43 P.S. § 753(l)(2)(B),

UC - appeal - email - timeliness - opportunity to rebut absence of evid. of receipt by UCBR

Bennett v. UCBR - Cmwlth. Court - December 16, 2011 (en banc, 6-1)

http://www.pacourts.us/OpPosting/Cwealth/out/2703CD10_12-16-11.pdf

The Court vacated the UCBR decision on timeliness of the appeal and remanded the case, directing the Board to consider the claimant's evidence on the issue, which the Board had previously ignored, holding that this was a capricious disregard of competent evidence.

Wright v. UCBR, ___ A.3d ___ (Pa. Cmwlth., filed December 16, 2011) (en banc, 5-2), established that the absence of an appeal document in the Board’s record creates, at best, an inference that the Board did not receive the document and, therefore, that it was not filed. In that situation, a claimant should be given an opportunity to establish, at a hearing before a referee, that he or she filed a timely appeal notwithstanding the absence of the appeal document in the Board’s record.

Here and in Wright (also filed today), the court held that the failure to consider the claimant's uncontradicted evidence on the issue of timeliness constituted a capricious disregard of the uncontradicted evidence at the hearing before the referee. In each case, that evidence included testimony and documents that showed that, though not in the Board’s record, the claimant transmitted the earlier appeal document to the Board

Like the claimant in Wright, here Claimant offered testimony that, if found credible and persuasive, would establish that he sent an appeal of the notice of determination to the Board by electronic means before the expiration of the appeal deadline.

Neither the Referee nor the Board addressed Claimant’s testimony or supporting documents in their decisions. Instead, like the Board in Wright, they both appear to have ignored the hearing record and, instead, based their decisions solely on what was (and was not) in the Board’s record prior to the hearing.

The court found this "particularly troubling", because the Board’s hearing notice expressly provided that purpose of the hearing was to take testimony on the issue of the timeliness of Claimant’s appeal. It found that Claimant’s testimony, if found credible and persuasive, and exhibits could support a finding that he filed a timely appeal by e-mail, notwithstanding the absence of that earlier e-mail appeal in the Board’s record. Accordingly, the Board capriciously disregarded record evidence.

The court rejected the Board argument that this case is controlled by Roman-Hutchinson v. UCBR, 972 A.2d 1286 (Pa. Cmwlth. 2009), since in that case, the Board at least considered the claimant’s evidence and made factual findings with respect to the claimant’s claim that, notwithstanding its absence from the Board’s record, the claimant filed an earlier, timely appeal by e-mail. Here, the Board and the Referee made no such findings. Claimant here, like the claimant in Wright, attempted to establish by evidence at a hearing that the Board did, in fact, receive the earlier filed appeal and received it before the appeal deadline. For these reasons, Roman-Hutchinson does not control this appeal.

The court vacated the Board’s decision and remanded the matter for the Board to consider the evidence of record put forth by Claimant to show that he filed a timely appeal by e-mail and to make appropriate and necessary factual findings.

admin. law - federal APA - arbitrary and capricious

http://www.supremecourt.gov/opinions/11pdf/10-694.pdf

key quote -

This case requires us to decide whether the BIA’s policy for applying a section of the immigration law is "arbitrary [or] capricious" under the Administrative Procedure Act(APA), 5 U. S. C. §706(2)(A). The scope of our reviewunder this standard is "narrow"; as we have often recognized, "a court is not to substitute its judgment for that of the agency." . . . . Agencies. . . have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decision-making. When reviewing an agency action, we must assess, among other matters, "‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’" . . . .That task involves examining the reasons for agency decisions—or, as the case may be, the absence of such reasons. . . . .See FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009) (noting "the requirement that an agency provide reasoned explanation for its action").

The BIA has flunked that test here. By hinging a deportable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—amatter irrelevant to the alien’s fitness to reside in this country—the BIA has failed to exercise its discretion in a reasoned manner. [emphasis added]

_______________________

SUPREME COURT OF THE UNITED STATES

Syllabus

JUDULANG

v

. HOLDER, ATTORNEY GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 10–694. Argued October 12, 2011—Decided December 12, 2011

Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted. Before 1996, these two kinds of action occurred in different procedural settings; since then, the Government has employed a unified "removal proceeding" for exclusions and deportations alike. But the immigration laws have always provided separate lists of substantive grounds for the two actions. One list specifies what crimes render an alien excludable, see 8 U. S. C. §1182(a), while another—sometimes overlapping and sometimes divergent—list specifies what crimes render an alien deportable, see §1227(a). Until repealed in 1996, §212(c) of the Immigration and Nationality Act permitted the Attorney General to grant discretionary relief to an excludable alien, if the alien had lawfully resided in the United States for at least seven years before temporarily leaving the country and if the alien was not excludable on one of two specified grounds. By its terms, §212(c) applied only in exclusion proceedings, but the Board of Immigration Appeals (BIA) extended it decades ago to deportation proceedings as well. Although Congress substituted a narrower discretionary remedy for §212(c) in 1996, see §1229b, §212(c)’s broader relief remains available to an alien whose removal is based on a guilty plea entered before §212(c)’s repeal, INS v. St. Cyr, 533 U. S. 289, 326.

In deciding whether to exclude such an alien, the BIA first checks the statutory ground identified by the Department of Homeland Security (DHS) as the basis for exclusion. Unless that ground is one of the two falling outside §212(c)’s scope, the alien is eligible for discretionary relief. The BIA then determines whether to grant relief based on such factors as the seriousness of the offense.

This case concerns the BIA’s method for applying §212(c) in the deportation context. The BIA’s approach, known as the "comparable grounds" rule, evaluates whether the charged deportation ground has a close analogue in the statute’s list of exclusion grounds. If the deportation ground consists of a set of crimes "substantially equivalent" to the set making up an exclusion ground, the alien can seek §212(c) relief. But if the deportation ground covers different or more or fewer offenses than any exclusion ground, the alien is ineligible for relief, even if the alien’s particular offense falls within an exclusion ground.

Petitioner Judulang, who has lived continuously in the United States as a lawful permanent resident since 1974, pleaded guilty to voluntary manslaughter in 1988. After he pleaded guilty to another crime in 2005, DHS commenced a deportation action, charging him with having committed an "aggravated felony" involving "a crime of violence" based on his manslaughter conviction. The Immigration Judge ordered Judulang’s deportation, and the BIA affirmed, findingJudulang ineligible for §212(c) relief because the "crime of violence" deportation ground is not comparable to any exclusion ground. The Ninth Circuit, having previously upheld the BIA’s comparablegrounds rule, denied Judulang’s petition for review.

Held:

The BIA’s policy for applying §212(c) in deportation cases is "arbitrary and capricious" under the Administrative Procedure Act, 5 U. S. C. §706(2)(A). Pp. 9–21.

(a) While agencies have expertise and experience in administering their statutes that no court may properly ignore, courts retain a narrow but important role in ensuring that agencies have engaged inreasoned decisionmaking. Thus, in reviewing the BIA’s action, this Court must assess, among other matters, "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43. That task involves examining the reasons for agency decisions, or the absence of such reasons.

The comparable-grounds approach cannot survive scrutiny underthis standard. By hinging a deportable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—a matter irrelevant to the alien’s fitness to reside in thiscountry—the BIA has failed to exercise its discretion in a reasoned manner. Pp. 9–10.

(b) Even if the BIA has legitimate reasons for limiting §212(c)’s scope in deportation cases, it must do so in some rational way. In other words, the BIA must use an approach that is tied to the purposes of the immigration laws or the appropriate operation of the immigration system. The comparable-grounds rule has no connection to these factors. Instead, it makes §212(c) eligibility turn on an irrelevant comparison between statutory provisions. Whether the set of offenses in a particular deportation ground lines up with the set in anexclusion ground has nothing to do with whether a deportable alienwhose prior conviction falls within both grounds merits the ability tostay in this country. Here, Judulang was found ineligible for §212(c)relief because the "crime of violence" deportation ground includes a few offenses—simple assault, minor burglary, and unauthorized use of a vehicle—not found in the similar moral turpitude exclusion ground. But the inclusion of simple assaults and minor burglaries in the deportation ground is irrelevant to the merits of Judulang’s case.

The BIA’s approach has other odd features. In applying the comparable-grounds rule, the BIA has denied relief to aliens whose deportation ground fits entirely within a much broader exclusion ground. Yet providing relief in exclusion cases to a broad class of aliens hardly justifies denying relief in deportation cases to a subset of that group. In addition, the outcome of the comparable-grounds analysis may itself rest on an arbitrary decision. An alien’s priorconviction could fall within a number of deportation grounds, only one of which corresponds to an exclusion ground. In such cases, an alien’s eligibility for relief would hinge on an individual official’s decision as to which deportation ground to charge. An alien appearing before one official may suffer deportation, while an identically situated alien appearing before another may gain the right to stay in this country.

In short, the comparable-grounds approach does not rest on anyfactors relevant to whether an alien should be deported. Instead, itturns deportation decisions into a "sport of chance." Rosenberg v. Fleuti, 374 U. S. 449, 455. That is what the APA’s "arbitrary and capricious" standard is designed to prevent. Pp. 10–15.

(c) The Government’s arguments in defense of the comparablegrounds rule are not persuasive. First, §212(c)’s text does not support the rule. That section cannot provide a textual anchor for any method of providing discretionary relief in deportation cases becauseit addresses only exclusion. Second, the history of the comparablegrounds rule does not work in the Government’s favor. The BIA repeatedly vacillated in its method for applying §212(c) to deportablealiens, settling on the current rule only in 2005. Third, the Government’s claim that the comparable-grounds rule saves time and moneyfalls short. Cost may be an important factor for agencies to consider in many contexts, but cheapness alone cannot save an arbitrary agency policy. In any event, it is unclear that the comparablegrounds rule saves money when compared with alternative approaches. Pp. 16–21.

249 Fed. Appx. 499, reversed and remanded. KAGAN, J., delivered the opinion for a unanimous Court.

UC - hearsay - no duty to rebut

Chambersburg Hospital v. UCBR - December 8, 2011 - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/954CD11_12-8-11.pdf

Employer relies on L. Washington & Associates v. UCBR, 662 A.2d 1148 (Pa. Cmwlth. 1995), for the proposition that one’s silence may constitute an admission. The "failure of a party to reply to a statement made in his presence or at hearing, is significant only where the nature of the statement, and the circumstances under which it was made, are such as render a reply natural and proper." L. Washington, 662 A.2d at 1149. (quoting Levin v. Van Horn, 412 Pa. 322, 194 A.2d 419 (1963)). However, this Court has limited the application of L. Washington in Carson v. UCBR, 711 A.2d 582 (Pa. Cmwlth. 1998), where we explained that in order for this proposition to apply, an employer must ask a claimant about the allegation prior to hearing or at the hearing in front of the referee. Carson, 711 A.2d at 585. Specifically, this Court opined:

Our [previous] holdings are not to be considered a lessening of employer’s burden of proof in a willful misconduct case. It is not appropriate to require a claimant to deny uncorroborated, hearsay allegations raised by an employer at a hearing, particularly when the burden of proof lies with the employer. Id.

Here, Employer is asking this Court to require Claimant to deny uncorroborated hearsay allegations. At no time during the hearing did Employer or Employer’s counsel directly ask Claimant her whereabouts on the days she called off. As Carson points out, "we will not penalize claimant for the tactical errors made by employer in this case." Carson, 711 A.2d at 585. L. Washington would be applicable if Employer confronted Claimant during the hearing about her specific dates at the beach, but this was not the case.

_____________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

UC - claimant not self-employed - presumption

Moran v. UCBR - Cmwlth. Court - December 8, 2011 - unpublished memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/474CD11_12-8-11.pdf

The court reversed the Board decision that claimant was an independent contractor.

Section 402(h) of the Law provides an employee "shall be ineligible for compensation for any week … in which he is engaged in self-employment." 43 P.S. §802(h). The legislature did not define the term self-employment in Section 402 of the Law. Therefore, this Court utilizes the language of Section 4(l)(2)(B) of the Law to fill the gap. Beacon Flag Car Co. v. UCBR, 910 A.2d 103 (Pa. Cmwlth. 2006) (holding the clear purpose of Section 402(h) of the Law is to exclude independent contractors from coverage); see also Glatfelter Barber Shop v. UCBR, 958 A.2d 786 (Pa. Cmwlth. 2008).

In pertinent part Section 4(l)(2)(B) of the Law provides: Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that -- (a) such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business. 43 P.S. § 753(l)(2)(B).

Accordingly, both prongs of the test stated in Section 4(l)(2)(B) of the Law must be satisfied before an individual will be deemed an independent contractor. Venango Newspapers v. U CBR, 631 A.2d 1384 (Pa. Cmwlth. 1993). In employment cases, a strong presumption exists that an individual receiving wages for his services is an employee, and the burden to overcome that presumption rests on the employer. Sharp Equip. Co. v. U CBR, 808 A.2d 1019 (Pa. Cmwlth. 2002). Thus, "unless the employer can show that the employee [is] not subject to his control and direction and [is] engaged in an independent trade, occupation or profession, then [the worker is an employee]." C.A. Wright Plumbing Co. v. U CBR, 293 A.2d 126, 129 (Pa. Cmwlth. 1972) (en banc).

We conclude that Employer did not overcome the strong presumption that Claimant was an employee. While we question the Board’s determination that Employer did not exercise control over Claimant, it is clear that the Board erred in its resolution of the second prong involving an independent trade or business.

The relevant word to our inquiry for this prong is the term "independent." Danielle Viktor, Ltd. v. Dep’t of Labor & Indus., 586 Pa. 196, 892 A.2d 781 (2006). In Viktor, our Supreme Court weighed several factors in determining whether the particular claimants’ businesses, limousine driving, operated independently, including:

(1) the [workers’] ability to perform services for more than one entity, including competitors, with no adverse consequences; (2) the operation of [the workers’] businesses and [the workers’] ability to perform work did not depend on the existence of any one of the [potential employers]; and (3) the fact that [the workers] bring all necessary perquisites of providing [services] to [the employers], even though they do not own [their own tools or supplies] or bear all of the financial risk.

Id. at 229-230, 892 A.2d 801-802. As such, a worker can only be considered an independent contractor if he is in business for himself, and is not dependent on another for the continuance of employment. Id.

Here, the Board erred when it relied solely on the referee’s finding that Claimant was free to perform the same services he supplied to Employer for any other potential employer. Additionally, the Board’s consideration was limited to whether Claimant was free to compete with Employer under his contract, and not whether Claimant was actually capable of working for another enterprise. See Beacon Flag, 910 A.2d at 109 n. 11 (holding a non-compete agreement is not definitive to our determination, and "we are particularly loathe to hold … such an agreement [created] … an employer-employee relationship"). The “ability to work for more than one enterprise is an important factor in determining independent contractor status,” but it is not the only factor. Id. at 109. The Board erred in determining Claimant engaged in an independent business when its conclusion was supported by a single finding that Claimant was contractually free to work for another entity during his contract with Employer.

Additionally, Claimant did not advertise or solicit his services, as an independent business, to gain employment. It is particularly noteworthy that the parties here entered their own arrangement after Employer contacted Claimant’s past employer looking for workers. As a result, Employer hired Claimant to a full-time position lasting the duration of Employer’s then-current project, pending Claimant’s production of satisfactory work during that time. Additionally, for his services Employer paid Claimant an hourly wage rather than job-to-job or per assignment.

Thus, regardless of Claimant’s potential contractual freedom to compete with Employer, the Board’s other findings do not support the conclusion that Claimant was capable of performing engineering services as an independent enterprise for other employers. Additionally, Claimant had no experience as an independent contractor, and thus, did not have his own tools or facilities to operate independently from Employer. Lastly, Claimant’s testimony demonstrates that the nature of Claimant’s trade compelled him to seek work from only one employer, and he was dependent upon Employer for his continual employment. Therefore, Claimant was not engaged in an independent business, but rather was an employee.

Accordingly, we conclude the Board erred in finding Claimant was self-employed as an independent contractor under Sections 402(h) and 4(l)(2)(B) of the Law. Therefore, we reverse the Board’s order.

_________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

custody - statutory factors; reasons for partial custody order

J.R.M. v. J.E.A. - Superior Court - December 6, 2011



http://www.pacourts.us/OpPosting/Superior/out/a30019_11.pdf



The court remanded the trial court's order giving mother primary custody of 8-month old child and placing limitations on father's partial custody rights, because:



- the lower court failed to consider the factors listed in "23 Pa.C.S.A. § 5328(a), a newly enacted section of the child custody statute, which delineates factors the trial court must consider when awarding any form of custody. . . All of the factors listed in section 5328(a) are required to be considered by the trial court when entering a custody order. Id. As the trial court failed to properly consider the statutorily mandated factors in arriving at its custody determination, it erred as a matter of law. We are therefore compelled to vacate its order and remand the case for further findings of facts." (emphasis in original)



- it was improper to place restrictions on father's partial custody absent evidence that he was unfit or unable to care for the child. "An award of partial custody generally does not contain any restrictions. Fatemi v. Fatemi, 489 A.2d 798, 801 (Pa. Super. 1985). “A restriction will be imposed if the parties have agreed to a restriction or if the party requesting a restriction shows that without it, partial custody will have a detrimental impact on the child.” Id.; see also 23 Pa.C.S.A. § 5323(e) (“[I]f the court finds that there is an ongoing risk of harm to the child or an abused party and awards any form of custody to a party who committed the abuse or who has a household member who committed the abuse, the court shall include in the custody order safety conditions designed to protect the child or the abused party.”).. . . The trial court imposed restrictions on Father’s periods of partial custody without support in the record that the parties agreed to the restrictions or that the restrictions were necessary to protect Child from some detrimental impact or safety concern. Fatemi, 489 A.2d at 801; 23 Pa.C.S.A. § 5323(e). The imposition of such restrictions are therefore unreasonable in light of the evidence of record. Durning, 19 A.3d at 1128.

disability - remand - treating phys. opinion - ALJ consideration not sufficiently detailed

Bethea v. Astrue - ED Pa. - December 5, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1317P.pdf

The court affirmed the decision of the magistrate judge, who "properly observed that the ALJ’s evaluation of the medical evidence in this case was ‘not sufficiently detailed to allow for meaningful judicial review.’”

“[T]he medical judgment of a treating physician can be rejected only on the basis of contradictory medical evidence.” Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000) (internal quotation omitted); see also 20 C.F.R. §§ 404.1527(d)(2) (“If a treating source’s opinion on the issue of the nature and severity of an impairment is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case, it will receive controlling weight.”). In refusing to credit the testimony of a treating physician, the ALJ must base his decision on “objective medical evidence” and not “solely on his own amorphous impressions, gleaned from the record and from his evaluation of [plaintiff’s] credibility.” Morales, 225 F.3d at 318. The ALJ did not articulate any reasons for rejecting the treating source opinions in this case.

“While the ALJ was not required to review all evidence of record, and could choose to reject [the treating physicians] opinion[s], he was required to ‘explain the weight he has given to obviously probative exhibits.’” Jennings v. Astrue, No. 09-1642, 2009 WL 7387721, at *9 (E.D. Pa. Nov. 30, 2009), quoting Cotter, 642 F.2d at 705.

Here, the ALJ placed controlling weight on the assessment of the non-physician state agency disability claims adjudicator. “[T]he medical judgment of a treating physician can be rejected only on the basis of contradictory medical evidence.” Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988). In the absence of any explanation as to why he chose to reject the medical evidence that plaintiff’s treating physicians used to support their determinations, the ALJ may not rely on the opinion of a non-physician. C.f., Bordes, 235 Fed. App’x at 864 (holding that the ALJ’s finding that the claimant suffered from no severe back impairment was not supported by substantial evidence where the ALJ failed to explain the evidence he relied on in rejecting the treating physician’s diagnosis); Eary v. Halter, No. 00-2910, 2001 WL 695045, at *4 (E.D. Pa. June 18, 2001) (finding that the ALJ failed to fulfill his duty where he “failed to explain or support his determination with medical evidence in the record”).

In sum, the ALJ’s decision does not allow the court to “tell if significant probative evidence was not credited or simply ignored.” Bordes, 235 Fed. App’x at 864 (quotation omitted). I find that the ALJ’s reasons for not adopting as controlling the assessments of plaintiff’s treating physicians are not based on substantial evidence and will overrule defendant’s objections.

admin. law - body that did not hear case CAN decide facts w/o violating due process

Graff v. DPW - Cmwlth. Court - November 21, 2011 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/176CD11_11-21-11.pdf

Claimant contends that the Secretary lacked authority to alter the ALJ‟s factual finding that she was permanently disabled by her work injury. The Department counters that the Secretary is vested with final fact-finding authority, and, thus, error did not occur.

In Siemon’s Lakeview Manor Estate v. DPW, 703 A.2d 551, 553-554 (Pa. Cmwlth. 1997), the Secretary reversed the factual findings of the Bureau in holding that a nursing facility was not entitled to reimbursement of certain costs associated with nursing care services. The nursing facility appealed to this Court, claiming that the Secretary did not have authority to reverse the Bureau's factual findings.

In deciding this legal issue, we reviewed the applicable statutes and regulations. Section 206 of the Administrative Code of 1929, provides that the Secretary of Public Welfare shall "personally" or through a "duly authorized agent" carry out his duties as agency head. 71 P.S. § 66. The General Rules of Administrative Practice and Procedure, which govern hearings before state agencies, such as the Department, authorize the "agency head" to personally conduct hearings or to appoint a presiding officer to conduct hearings. 1 Pa. Code §§35.123, 35.185. Here, the legislature has expressly made "the Secretary" the "head" of the Department. 71 P.S. §66. Consistent with these principles, we held that even though the Secretary did not view the demeanor of witnesses, this did not preclude the Secretary from exercising final fact-finding authority.

Again, in A.O. v. Department of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003), we reiterated that the Secretary, as the agency head, is vested with fact-finding authority. We further explained as follows:

While a fact finder‟s observation of the demeanor of a witness has traditionally been viewed as an important factor in determining credibility, administrative adjudicators are permitted to determine the credibility of testimony from the reading of a transcript. Administrative agencies often use a system of adjudication where a hearing examiner or presiding officer takes evidence and the ultimate fact finder is a board or commission, which has the power to make findings of fact based solely on a review of the record. See, e.g., Kramer v. Department of Insurance, 654 A.2d 203 (Pa. Cmwlth. 1995) (presiding officer conducted an evidentiary hearing, but the adjudication was issued by the Insurance Commissioner); … An adjudicative method where the ultimate decision in a case is made by an administrative fact finder who did not hear the testimony does not deny a litigant due process of law.

Id. at 38, n.5 (emphasis added) (citation omitted).

More recently in Duvall v Department of Corrections, 926 A.2d 1220 (Pa. Cmwlth. 2007), we considered whether the Secretary of Corrections could reject a hearing examiner‟s factual findings made in a hearing to determine eligibility for Heart and Lung benefits. The Secretary found that the claimant had fully recovered and was able to return to work. The claimant appealed to this Court, arguing that the Secretary could not make credibility determinations contrary to those of the hearing examiner. We disagreed, explaining that the hearing examiner was merely the designee of the Secretary, who was "the ultimate finder of fact in the instant matter" and able to make different credibility determinations. Id. at 1225.

We reject Claimant's contention that it was impermissible for the Secretary to make new factual findings, including credibility determinations, that differed from those of the administrative law judge appointed to take evidence and make the record for the Secretary. The contrary principle has been well established in legislation, regulations and case law precedent.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

consumer - CPL - fraud v. deceptive; parol evidence rule - ED Pa. case

Schnell v. Bank of New York - ED Pa. - November 21, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1284P.pdf

This state consumer protection law case concerms Plaintiff's claim that accuses the banks of first deceiving her and then pressuring her into accepting a mortgage she and her late husband could not afford. The CPL’s catch-all provision bars “[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 Pa. C.S. § 201-2(4)(xxi).

A plaintiff may succeed under the catch-all provision by satisfying the elements of common law fraud or by otherwise alleging deceptive conduct. Hunt v. U.S. Tobacco Co., 538 F.3d 217,
219 (3d Cir. 2008).5 Plaintiff explicitly references the Defendant Banks’ “deceptive acts” and therefore does not need to prove all of the elements of common-law fraud or meet the particularity requirement of Federal Rule of Civil Procedure 9(b). Seldon v. Home Loan Servs., Inc., 647 F. Supp. 2d 451, 469-70 (E.D. Pa. 2009) (citations omitted). Yet even under the less stringent standard, “a plaintiff must allege facts showing a ‘deceptive act,’ that is ‘conduct that is likely to deceive a consumer acting reasonably under similar circumstances.”’ Id. at 470 (citations omitted). Defendant BNY had no role vis-à-vis the origination of the loan, and Plaintiff fails to demonstrate how BNY could have deceived her into accepting the refinancing when it did not become the assignee until after the closing.

Defendant BOA, on the other hand, played a role in the origination of the disputed refinancing loan (via its acquisition of Countrywide). But to bring a private cause of action under the UTPCPL, Schnell must show that she “justifiably relied on the defendant’s wrongful conduct.” Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438 (Pa. 2004). Plaintiff's claim, however, is based on representations allegedly made by BOA and its agents prior to the signing of the refinancing contract. [emphasis added] As a result of Pennsylvania’s parol evidence rule, Plaintiff cannot be said to have justifiably relied on any precontractual representations. Id. at 502 Although the mortgage refinancing loan did not contain an integration clause, Plaintiff admits in her Complaint that she was aware of the higher interest rate and still signed the ontract.

______________________

n. 5 Pennsylvania’s lower courts have split over whether or not the “deceptive conduct” prong has the same requirements or offers plaintiffs a lower standard. Seldon, 647 F. Supp. 2d at 468 (comparing Commonwealth v. Percudani, 825 A.2d 743, 746 (Pa. Commw. Ct. 2003) with Booze v. Allstate Ins. Co., 750 A.2d 877, 880 (Pa. Super. Ct. 2000)). Although the Pennsylvania Supreme Court has not yet spoken on the issue, courts in this district have held that the 1996 amendment to the catch-all provision of the UTPCPL added a prohibition on deceptive
conduct that permits plaintiffs to proceed without satisfying all of the elements of common-law fraud. See, e.g., Fingles v. Continental Cas. Co., No. 08-5943, 2010 WL 1718289, at *7 (E.D. Pa. Apr. 28, 2010); Seldon, 647 F. Supp. 2d at 468-71; Flores v. Shapiro & Kreisman, 246 F. Supp. 2d 427, 432 (E.D. Pa. 2002). I adopt their reasoning.

consumer - contract under seal - statute of limitations

Osprey Portfolio, Inc. v. Izett - Superior Court - November 21, 2011

http://www.pacourts.us/OpPosting/Superior/out/a21030_11.pdf

Guaranty under seal for related promissory note was an instrument under seal subject to 20-year statute of limitations (SOL) under 42 Pa. C.S. 5529(b)(1) rather than normal 4-year contract SOL, 42 Pa. C.S. 5525.

The guaranty, which had the pre-printed word "SEAL" next to the signature line, was "undisputedly signed under seal," * and was held to be an “'instrument' because it defines the rights, duties, entitlements, and liabilities of the parties involved, and therefore, the applicable statute of limitations is the twenty-year statute set forth in 42 Pa.C.S.A. § 5529(b)(1)."

* In re Estate of Snyder, 13 A.3d at 513 (holding that the twenty-year statute of limitations applied to the action and stating that “this Court has held, in accord with many cases written by our Supreme Court, that when a party signs an instrument which contains a pre-printed word ‘SEAL,’ that party has presumptively signed an instrument under seal.” (citation and brackets omitted)); see also Robert Mallery Lumber Corp. v. B. & F. Assocs., Inc., 440 A.2d 579, 582 (Pa. Super. 1982) (referring to a guaranty as an “instrument”); accord Marcucci v. H & L Developers, Inc., 2009 U.S. Dist. LEXIS 121769 at *21 (E.D. Pa. 2009)