tax sale - "proof of mailing"

Horton v. Washington Co. Tax Claim Bureau - Cmwlth. Court - May 21, 2012


http://www.pacourts.us/OpPosting/Cwealth/out/75CD11_5-21-12.pdf

Section 602 of the Real Estate Tax Sale Law, 72 P.S. §5860.602(e)(2), requires that notice of a scheduled tax sale be provided by three separate methods: publication at least thirty days prior to sale; notification by certified mail at least thirty days prior to sale; and posting on the property at least ten days prior to sale. 72 P.S. §5860.602(a), (e).

With respect to the notice by certified mail, the statute also states that if a return receipt is not received from the property owner, "then, at least ten (10) days before the date of the sale, similar notice of the sale shall be given to each owner who failed to acknowledge the first notice by United States first class mail, proof of mailing, at his last known post office address…." Section 602(e)(2) of the Law, 72 P.S. §5850.602(e)(2) (emphasis added).

Consistent with the decision in In Re: York County Tax Claim Bureau Donalynn Properties, Inc. v. York County Tax Claim Bureau, 3 A.3d 765 (Pa. Cmwlth. 2010), the court held that the "proof of mailing" requirement in section 602(e)(2) of the Law can only be satisfied by the use of a USPS certificate of mailing, also known as USPS Form 3817.

The holding in York County is based on

- the statutory language in the context of the Law’s other notice provisions. The Court observed that all other types of mailing specified in the statute are USPS services and that the phrase "proof of mailing" immediately follows "United States first class mail," which is exclusively USPS terminology. Based on the plain language alone, the Court concluded that the legislature intended "proof of mailing" to mean a USPS form and determined that the only official record providing that proof was a USPS certificate of mailing.

- a need for statewide uniformity with respect to the ten-day notice, which is the final notice sent to a property owner before a tax upset sale.

- the minimal burden that requiring a USPS certificate of mailing imposes on county tax bureaus.

Right to Counsel - Statute of 11 Henry VII - article

A new article explores the possibility of civil right to counsel arguments based on the incorporation of English common law that provided for a right to counsel. It's Taking the English Right to Counsel Seriously in American 'Civil Gideon' Litigation, 45 U. Mich. J.L. Reform 635 (2012), available at http://ssrn.com/abstract=1753407

There is a lot in the article about the Statute of 11 Henry VII, c. 12, which also includes a right to proceed in forma pauperis. The Statute says

[E]very poor person or persons which have & hereafter shall have cause of action or actions against any person or persons within the realm shall have, by the discretion of the Chancellor of this realm, for the time being writ or writs original and writs of subpoena according to the nature of their causes, therefore nothing paying to your Highness for the seals of the same, . . . [a]nd that the said Chancellor for the same time being shall assign . . . Counsel learned by their discretions which shall give their Counsels nothing taking for the same, and in like wise the same Justices shall appoint attorney and attorneys for the same poor person or persons and all other officers requisite and necessary to be had for the speed of the said suits to be had and made which shall do their duties without any rewards for their Counsels, help, and business in the same . . .

The Statute of 11 Henry VII is incorporated into the law of Pennsylvania by virtue of Pa. C.S. § 1503(a). The Statute is cited in a number of Pennsylvania cases, including Thompson v. Garden Court, Inc., 419 A.2d 1238 (Pa. Super. 1980), where the court said

“Indulgence toward poor persons in bringing their actions has existed from an early period . . . .” 15 Stand.Pa.Prac.-Costs s 125 at 681 (1965). Under the Statute of 11 Henry VII, c. 12 (1494),

(E)very poor person or persons, which have, or hereafter shall have cause of action or actions against any person or persons within this realm, have, by the discretion of the Chancellor of this realm for the time being, writ or writs original, and writs of subpoena, according to the nature of their causes, therefore nothing paying to your Highness for the seals of the same, nor to any person for the writing of the same writ or writs to be hereafter sued; . . .“

This statute is part of the common law of Pennsylvania, Report of the Judges, 3 Binn. 593, 617 (1808); 1 Pa.C.S.A. s 1503 (1964-78 Pamphlet), and provides relief from filing fees and court costs to in-digent persons in the commencement and prosecution of civil actions. Mitek v. Ste-Mel Signs, Inc., 222 Pa.Super. 395, 294 A.2d 813 (1973); 3 Goodrich-Amram 2d s 1137:1 at 427 n. 8.

See also, Madden v. City of York, 59 Pa. D. & C. 2d 367, 369-70 (Ct. Com. Pl. 1972) and Mitek v. Ste-Mel Signs, 294 A.2d 813 (Pa. Super. 1972) (cited in Davila v. Soto, 378 A.2d 443 (Pa. Super 1977); Zerr v. Scott, 39 Pa. C & C 3d 459 (CP Berks 1985); In re Community Legal Services, 43 Pa. D & C 2d 51 (CP Phila. 1967).

Megan's Law - registration - homelessness

Commonwealth v. Demmitt - Pa. Super. May 2, 2012

 

http://www.pacourts.us/OpPosting/Superior/out/E02007_10.pdf

 

The Commonwealth of Pennsylvania appeals the July 15, 2009 order entered in the Centre County Court of Common Pleas that granted Harvey Elwood Demmitt, Jr.’s motion for a new trial after a jury convicted him of failing to comply with registration of sexual offender requirements pursuant to 18 Pa.C.S.A. § 4915(a)(1).

 

The Commonwealth argues Appellee was not entitled to a new trial as Megan’s Law1 should not be construed to allow sexually violent predators to circumvent the requirement of registering a location as their “residence” by asserting a defense of homelessness. We agree and reverse.

UC - job offer contingent on claimant waiver of UC claim

Big Mountain Imaging v. UCBR - Cmwlth. Cour - April 30, 2012


http://www.pacourts.us/OpPosting/Cwealth/out/2138CD11_4-30-12.pdf

An offer of employment may not be contingent on an employee waiving his right to collect unemployment benefits, Claimant had good cause to reject Employer’s offer. Section 701 of the Law, 43 P.S. §861 (no agreement by employee to release rights under this act shall be valid); see Lee v. UCBR, 33 A.3d 717 (Pa. Cmwlth. 2011) (an employer cannot accept a settlement of an unemployment compensation claim); Pitt. Chem. & Sanitary Supply Co., Inc. v. UCBR, 9 A.3d 274 (Pa. Cmwlth. 2010).

sec. 1983 - qualified immunity - private entity doing public function

http://www.supremecourt.gov/opinions/11pdf/10-1018.pdf

SUPREME COURT OF THE UNITED STATES

Syllabus

FILARSKY v. DELIA

No. 10–1018. Argued January 17, 2012—Decided April 17, 2012

Respondent Delia, a firefighter employed by the City of Rialto, California, missed work after becoming ill on the job. Suspicious of Delia's extended absence, the City hired a private investigation firm to conduct surveillance on him. When Delia was seen buying fiberglass insulation and other building supplies, the City initiated an internal affairs investigation. It hired petitioner Filarsky, a private attorney, to interview Delia. At the interview, which Delia’s attorney and two fire department officials also attended, Delia acknowledged buying the supplies, but denied having done any work on his home. To verify Delia’s claim, Filarsky asked Delia to allow a fire department official to enter his home and view the unused materials. When Delia refused, Filarsky ordered him to bring the materials out of his home for the official to see. This prompted Delia’s attorney to threaten a civil rights action against the City and Filarsky. Nonetheless, after the interview concluded, officials followed Delia to his home, where he produced the materials. Delia brought an action under 42 U. S. C. §1983 against the City, the Fire Department, Filarsky, and other individuals, alleging that the order to produce the building materials violated his Fourth and Fourteenth Amendment rights. The District Court granted summary judgment to the individual defendants on the basis of qualified immunity. The Court of Appeals for the Ninth Circuit affirmed with respect to all individual defendants except Filarsky, concluding that he was not entitled to seek qualified immunity because he was a private attorney, not a City employee.

Held: A private individual temporarily retained by the government to carry out its work is entitled to seek qualified immunity from suit under §1983. Pp. 4-16.

Syllabus
(a)
In determining whether the Court of Appeals made a valid distinction between City employees and Filarsky for qualified immunity purposes, this Court looks to the general principles of tort immunities and defenses applicable at common law, and the reasons the Courthas afforded protection from suit under §1983. See Imbler v. Pachtman, 424 U. S. 409, 418. The common law as it existed in 1871, when Congress enacted §1983, did not draw a distinction between full-timepublic servants and private individuals engaged in public service in according protection to those carrying out government responsibilities. Government at that time was smaller in both size and reach, had fewer responsibilities, and operated primarily at the local level.Government work was carried out to a significant extent by individ- uals who did not devote all their time to public duties, but instead pursued private callings as well. In according protection from suit to individuals doing the government’s work, the common law did not draw distinctions based on the nature of a worker’s engagement with the government. Indeed, examples of individuals receiving immunity for actions taken while engaged in public service on a temporary or occasional basis are as varied as the reach of government itself. Common law principles of immunity were incorporated into §1983 and shouldnot be abrogated absent clear legislative intent. See Pulliam v. Allen, 466 U. S. 522, 529. Immunity under §1983 therefore should notvary depending on whether an individual working for the governmentdoes so as a permanent or full-time employee, or on some other basis. Pp. 4–11.

(b)
Nothing about the reasons this Court has given for recognizing immunity under §1983 counsels against carrying forward the common law rule. First, the government interest in avoiding “unwarranted timidity” on the part of those engaged in the public’s business— which has been called “the most important special government immunity-producing concern,” Richardson v. McKnight, 521 U. S. 399, 409—is equally implicated regardless of whether the individual suedas a state actor works for the government full-time or on some otherbasis. Second, affording immunity to those acting on the government’s behalf serves to “ ‘ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.’ ” Id., at 408. The government, in need of specialized knowledge or expertise, may look outside its permanent workforce to secure the services of private individuals. But because those individuals are free to choose other work that would not expose them to liability for government actions, the most talented candidates might decline public engagements if they did not receive the same immunity enjoyed by their public employee counterparts. Third, the public interest in ensuring performance of government duties free from the distractions that can accompany lawsuits is implicated whether those duties are discharged by private individuals or permanent government employees. Finally, distinguishing among those who carry out the public’s business based on their particular relationship with the government creates significant line-drawing problems and can deprive state actors of the ability to “ ‘reasonably anticipate when their conduct may give rise to liability for damages,’ ” Anderson v. Creighton, 483 U. S. 635, 646. Pp. 11-13.

(c)
This conclusion is not contrary to Wyatt v. Cole, 504 U. S. 158, or Richardson v. McKnight, 521 U. S. 399. Wyatt did not implicate the reasons underlying recognition of qualified immunity because the defendant in that case had no connection to government and pursued purely private ends. Richardson involved the unusual circumstances of prison guards employed by a private company who worked in a privately run prison facility. Nothing of the sort is involved here, or in the typical case of an individual hired by the government to assist in carrying out its work. Pp. 13-15.

621 F. 3d 1069, reversed.
ROBERTS, C. J., delivered the opinion for a unanimous Court. GINS-BURG, J., and SOTOMAYOR, J., filed concurring opinions.

UC - willful misconduct - rule violation - proof of rule - threats to co-worker

Lewis v. UCBR - Cmwlth. Court - April 16, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/1552CD11_4-16-12.pdf

Proof of employer rule

The employer failed to present adequate evidence of the rule that claimant was accused of violating. - An employer witness provided the only evidence regarding a work policy when he stated, in response to a question about whether Claimant should have known that a heated argument was prohibited in the workplace, “We have rules and regulations and also we have [a] harassment policy.” Critically, Employer did not identify any specific rule or policy that Claimant violated, nor did it present any documentary evidence of such a policy.

Testimony that Employer has “rules and regulations” and a “harassment policy” is insufficient to establish the type of policy that the UCBR found Claimant violated. See Pennsylvania National Insurance Company v. UCBR, 531 A.2d 832, 834 (Pa. Cmwlth. 1987) (finding no willful misconduct where there was no evidence of a specific rule that the claimant violated); Goodson v. UCBR, 424 A.2d 1019, 1020 (Pa. Cmwlth. 1981) (finding no willful misconduct where the employer’s witnesses failed to specify what company regulation the claimant violated). Even if Employer had proven the existence of a policy, however, the UCBR made no finding that Claimant was aware or should have been aware of it. Therefore, we conclude that Employer failed to prove Claimant’s deliberate violation of a work rule.

Threats to a co-worker

While it is true that threats of harm toward a co-worker (CW) may disqualify an employee from receiving benefits, see Andrews v. UCBR, 633 A.2d 1261, 1263 (Pa. Cmwlth. 1993), there is no evidence here that Claimant threatened a co-worker. The only evidence Employer presented regarding any threat was Claimant’s written statement that the co-worker said that he [the co-worker] carries guns and Claimant’s response that he had been shot before and was not afraid of guns. Claimant himself did not threaten to use firearms. According to Claimant, the CW then "went on about how [tough] he was and I went on about how [tough] I was to [sic]."

An employee’s remark to another employee that he is "tough," without more, cannot be construed as a threat of physical harm disqualifying him from receiving benefits. See Blount v. UCBR, 466 A.2d 771, 773 (Pa. Cmwlth. 1983) (noting that, where an employee’s offensive remark to another employee was justifiably provoked and of a de minimis nature, it did not constitute willful misconduct).7 Furthermore, the UCBR made no findings, nor was there any evidence, that Claimant used profanity or offensive language during the argument or that there was any physical contact between the two men. Thus, we cannot conclude that Claimant’s behavior rose to the level of willful misconduct.

_________________

This summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable and can be accessed without a password.

UC - vol. quit, childcare; overpayment - non-fault

Favero v. UCBR - Cmwlth. Court - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1454CD11_4-13-12.pdf

VQ - Child care - In Truitt v. UCBR, 509 Pa. 628, 589 A.2d 208 (1991), our Supreme Court addressed the issue of child care as a necessitous and compelling reason to quit. In Truitt, the claimant quit her job working a late night shift after making inquiries of her sisters, former babysitters, and a daycare center in an effort to find replacement care for her two children, who had been previously cared for by her then-ailing mother. The Supreme Court, in granting benefits, held that in light of all of claimant’s efforts, "[t]here is nothing more that we can or should ask of an employee before that employee terminates his or her employment." Truitt, 527 Pa. at 143, 589 A.2d at 210.

This Court determined, in Shaffer v. UCBR, 928 A.2d 391 (Pa. Cmwlth. 2007), that a claimant’s child care issues did not constitute a necessitous and compelling reason to terminate her employment where the Board found that although she investigated one daycare facility, which proved not to be cost effective, she failed to present evidence regarding additional efforts made to address the child care problems after her employer relocated, "such as securing alternative childcare for her daughter with other daycare facilities...or having her son enroll in an after school activity or stay with a relative or neighbor before or after school." Id. In Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000), we noted that this Court has consistently required that claimants prove that they explored alternative child care arrangements before terminating employment in order to care for small children, and claimants must establish that they exhausted all other alternative child care arrangements, such as a concerted effort to find another babysitter or find a suitable daycare center. Id. at 71-72.

We find, sub judice, that substantial evidence exists to support the Board’s finding that once her child started public school, Claimant wanted to be available to put her child on the school bus, and meet her child at the bus stop after school, and therefore did not want to put her child in wrap around daycare.7 Here, the Referee questioned Claimant about relatives who might be available to help her, but failed to inquire about babysitters, neighbors, or daycare services that might be available. Indeed, the Referee characterized Claimant’s testimony as to why she left her employment as "her need to take her daughter to the bus stop in the morning and pick her up again in the afternoon." There is simply no evidence that Claimant exhausted alternative child care arrangements, or made any effort at all to explore other possibilities besides securing the services of a family member.

Conversely, Employer asserted, in its appeal from the Referee’s decision, that at least three viable daycare options existed, and Claimant’s child had previously been in daycare. We find that the Board did not err in concluding that Claimant made a decision that once her child started public school, she would undertake to care for the child before and after school, and properly found that Claimant left work without cause of a necessitous and compelling nature.

Overpayment - non-fault - We have stated that the word "fault" within the meaning of Section 804(a) of the Law connotes "an act to which blame, censure, impropriety, shortcoming or culpability attaches...." Greenawalt v. UCBR, 543 A.2d 209, 211 (Pa. Cmwlth. 1988) (quoting Cruz v. UCBR, 531 A.2d 1178, 1180 (Pa. Cmwlth. 1987). Conduct that is designed improperly and intentionally to mislead the unemployment compensation authorities is sufficient to establish a fault overpayment. Greenawalt.

Our review of the record finds no basis for concluding that Claimant’s statements were knowingly or intentionally misleading, and no other evidence supporting the Board’s finding of a fault overpayment. At every opportunity, Claimant explained her reason for claiming "lack of work" on her online application, and clearly stated that she had voluntarily resigned her full-time position after Employer failed to offer part-time employment.

Accordingly, we affirm the Board’s decision as to the denial of benefits, but we reverse as to the finding of fault on the part of Claimant. Benefits paid to Claimant for the weeks following her voluntary quit are a nonfault overpayment subject to recoupment under Section 804(b) of the Law, 43 P.S. §874(b)(1)

_______________

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 - willful misconduct v. inadvertent mistakes

Dissinger and Dissinger v. UCBR - April 13, 2012 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1722CD11_4-13-12.pdf

An employee’s failure to work up to her full, proven ability, especially after multiple warnings regarding poor work performance, must be construed as willful misconduct because such conduct shows an intentional disregard of the employer’s interest or the employee’s obligations and duties. However, a finding that a claimant worked to the best of her ability negates a conclusion of willful misconduct. Norman Ashton Klinger & Assocs., P.C. v. UCBR, 561 A.2d 841 (Pa. Cmwlth. 1989); Radio Station WVCH v. UCBR, 430 A.2d 737 (Pa. Cmwlth. 1981). Mere incompetence, incapacity or inexperience causing poor work performance will not support a discharge for willful misconduct. Geslao v. UCBR, 519 A.2d 1096 (Pa. Cmwlth. 1987).

Here, the Board credited Claimant’s testimony that she worked to the best of her ability, and it determined Employer did not show "[C]laimant’s shortcomings were intentional." The Board also credited Claimant’s testimony that she made mistakes when Employer gave her several tasks to complete at one time. The Board also found Employer did not formally discipline Claimant. These findings are amply supported.

In any event, to be disqualifying, an employee’s rule violation must be knowing and intentional or deliberate. Phila. Parking Auth. v. UCBR, 1 A.3d 965 (Pa. Cmwlth. 2010). An inadvertent rule violation is not willful misconduct. Morysville Body Works, Inc. v. UCBR, 419 A.2d 238 (Pa. Cmwlth. 1980). Here, the Board specifically determined Employer did not show Claimant’s actions were intentional; consequently, this could not form the basis for a determination of willful misconduct.

_________________

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 - vol. quit - transportation problems - seeking help from employer

Baker v. UCBR - April 12, 2012 - Cmwlth. Court - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1146CD11_4-12-12.pdf

Transportation inconveniences may rise to the level of a necessitous and compelling reason for voluntarily terminating one’s employment if the transportation problems are "so serious and unreasonable as to present a virtually insurmountable problem." J.C. Penney Co., Inc. v. Unemployment Compensation Board of Review, 457 A.2d 161, 163 (Pa. Cmwlth. 1983) (citation omitted). However, "the claimant must demonstrate that . . . she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship." Id. (citation omitted).

In Yurack v. UCBR 435 A.2d 663, 664 (Pa. Cmwlth. 1981), in which a claimant voluntarily resigned her position because she could no longer drive for medical reasons, this Court held that the claimant "should [have] request[ed] her employer’s assistance in finding transportation" before resigning. We noted that "[h]ad such a request been made . . . her employer might have helped [the c]laimant make arrangements with a co-worker to alter his or her commuting arrangements to include [the c]laimant. Alternatively, the employer might have been able to arrange a carpool with employees." Id. However, because she had not taken such actions, we held that the claimant could not "claim the [transportation] problem [was] insurmountable and that her termination was for necessitous and compelling reason." Id. Similarly, in Latzy, we held that the claimant, who had been furloughed from one position, had not established necessitous and compelling cause to reject a job offer at a different location because, although she had inquired about public transportation as a way to get to the new position, she "fail[ed] to investigate the possibility of riding to work with other employees and to ask for the [employer’s] assistance." Latzy, 487 A.2d at 123. We stated that such failure "is not consistent with one desiring to remain employed" and did not establish that the claimant "took reasonable steps to overcome her transportation difficulties." Id.

Here, as in Latzy and Yurack, Claimant did inquire into other means of transportation to work once it became clear that assistance would not be forthcoming from Lancaster or Berks counties. Indeed, Claimant went beyond the efforts of the claimants in Latzy and Yurack by, inter alia, contacting her state senator for assistance. However, also like the claimants in Latzy and Yurack, Claimant did not discuss her transportation problems with Employer, thereby preventing Employer and Claimant from inquiring into whether Claimant could obtain a ride with a co-worker. Although Claimant asserts that such an inquiry would have been futile because Employer did not offer carpooling or a car/van service, we have held that a claimant cannot rely upon the claimant’s own presumption or assumption that it would be futile to seek the employer’s assistance, but must present evidence to support the alleged futility. Dickhoff v. UCBR, 449 A.2d 807, 810 (Pa. Cmwlth. 1982) (citing Yurack). Claimant did not present any evidence of the futility of informing Employer of her transportation difficulties and, although Employer indicated that it did not offer a car/van service or a stipend for transportation services, Employer’s General Manager/Human Resources Director testified that, had Claimant come to her, Employer would have spoken with other employees to see if Claimant could have gotten a ride to work with one of her co-workers. In fact, the General Manager stated that, knowing her staff, she would not have been surprised if a co-worker would have offered Claimant transport to and from work.

Although we sympathize with Claimant and acknowledge the efforts she did make to resolve her transportation difficulties, we conclude, as we did in Latzy and Yurack, that Claimant did not make reasonable efforts to resolve her transportation problems when she did not inform Employer of those difficulties.

______________

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.

federal courts - pleading - Iqbal, et al.

McClaren v. AIG - ED Pa. - March 2012

http://www.paed.uscourts.gov/documents/opinions/12D0384P.pdf

A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008). Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).

Rule 8(a)(2) “[does] not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949.5 In determining whether a plaintiff’s complaint is sufficient, the court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief.” Fowler, 578 F.3d at 210 (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

Although “conclusory or ‘bare-bones’ allegations will [not] survive a motion to dismiss,” Fowler, 578 F.3d at 210, “a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits.” Phillips, 515 F.3d at 231. Nonetheless, to survive a 12(b)(6) motion, the complaint must provide “enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s].” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotation omitted).

The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted therein. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.

Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a “plausible claim for relief.” Id. at 211 (quoting Iqbal, __ U.S. at __, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).

Ultimately, this two-part analysis is “contextspecific” and requires the court to draw on “its judicial experience and common sense” to determine if the facts pled in the complaint have “nudged [plaintiff’s] claims” over the line from “[merely] conceivable [or possible] to plausible.” Iqbal, __ U.S. at __, 129 S.Ct. at 1950-1951, 178 L.Ed.2d at 884-885 (internal quotations omitted).

A well-pleaded complaint may not be dismissed simply because “it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941.

________

n. 5 - The Opinion of the United States Supreme Court in Ashcroft v. 5 Iqbal, U.S. , , 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868, 887 (2009), states clearly that the “facial plausibility” pleading standard set forth in Twombly applies to all civil suits in the federal courts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). This showing of facial plausibility then “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and that the plaintiff is entitled to relief. Fowler, 578 F.3d at 210 (quoting Iqbal, U.S. at , 129 S.Ct. at 1949, 173 L.Ed.2d at 884). As the Supreme Court explained in Iqbal, “[t]he plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that the defendant acted unlawfully.” Iqbal, U.S. at , 129 S.Ct. at 1949, 173 L.Ed.2d at 884.

__._,_.___

custody - relocation

http://www.pacourts.us/OpPosting/Superior/out/a05021_12.pdf (23 pp)

Superior Court - March 27, 2012

Denial of mother's relocation petition affirmed.

Mother's move held to be a "relocation, " i.e. “[a] change in residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights.” 23 Pa.C.S.A. § 5322(a).

Based on a thorough review of the record and the relocation factors contained in § 5337(h) that the trial court correctly determined that Mother’s proposed move significantly impairs Father’s ability to exercise his custodial rights. The trial court discerned that Child enjoys a very close relationship with Mother and Father, and that Father “has had regular and continued involvement co-parenting in different aspects of the minor child’s life that go beyond his periods of partial physical custody.” Competent record evidence reveals Father’s active involvement in Child’s sporting events and his desire to coach Child. The evidence also shows that Father is involved in school activities, including meetings with teachers and school authorities, and medical appointments.

Father, who is an equipment operator, is able to arrange his schedule in order to attend many of Child’s school and sports functions. The record confirms the trial court’s conclusion that Mother’s proposed relocation would break the continuity and frequency of Father’s involvement with Child and therefore threatens significant impairment of Father’s ability to exercise his
custodial rights. Mother’s offer of additional custodial time for Father would not ameliorate these adverse effects. See 23 Pa.C.S.A. § 5337(h)(3). Accordingly, Mother’s proposed move constitutes relocation within the meaning of § 5322(a).

In addition, the trial court determined and the evidence supports the finding that the advantages of the proposed move are minor, at best.

Therefore, after a careful review of the record certified on appeal, we conclude that the trial court did not err in finding that Mother failed to meet her burden of proving that relocation to Albion with Child, together with a related modification of the parties’ custody arrangement, would be in Child’s best interest. Landis v. Landis, 869 A.2d 1003, 1011 (Pa. Super. 2005).

Social Security Disability - Acquiescence Rulings - Index

http://www.gpo.gov/fdsys/pkg/FR-2012-03-27/html/2012-7182.htm

SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2012-0018]

Reinstate Index to Chapter III in 20 CFR

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SUMMARY: At the request of the Office of the Federal Register, we are reinstating the finding aid ``Index to Chapter III'' in Title 20 of the Code of Federal Regulations (CFR). The finding aid contains a list of all Acquiescence Rulings published in the Federal Register from January 11, 1990 through April 1, 2012.

DATES: The notice is effective March 27, 2012. The Office of the Federal Register will include the Index in the April 2012 edition of Title 20, chapter III of the CFR.

SUPPLEMENTARY INFORMATION:
We are reinstating the ``Index to Chapter III'' as a finding aid in our chapter of Title 20 of the CFR. The Index lists the Acquiescence Rulings we published in the Federal Register from January 11, 1990, through April 1, 2012. The Index last appeared as a finding aid in the April 1, 2008 edition of our chapter of the CFR.

You may also find a listing of Acquiescence Rulings on our Web site at

http://mwww.socialsecurity.gov/OP_Home/rulings/rulfind1.html.

foreclosure - HAMP - no pre-emption of state law claims - 7th Cir.

Wigod v. Wells Fargo Ban - 7th Cir. - March 7, 2012

http://www.ca7.uscourts.gov/tmp/GQ0GJOWC.pdf

We are asked in this appeal to determine whether Lori Wigod has stated claims under Illinois law against her home mortgage servicer for refusing to modify her loan pursuant to the federal Home Affordable Mortgage Program (HAMP). The U.S. Department of the Treasury implemented HAMP to help homeowners avoid foreclosure amidst the sharp decline in the nation’s housing market in 2008.

In 2009, Wells Fargo issued Wigod a four-month “trial” loan modification, under which it agreed to permanently modify the loan if she qualified under HAMP guidelines. Wigod alleges that she did qualify and that Wells Fargo refused to grant her a permanent modification. She brought this putative class action alleging violations of Illinois law under common-law contract and tort theories and under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA).

The district court dismissed the complaint in its entirety under Rule 12(b)(6) of the Federal Rules of Civil Procedure. . . . .The court reasoned that Wigod’s claims were premised on Wells Fargo’s obligations under HAMP, which does not confer a private federal right of action on borrowers to enforce its requirements. This appeal followed, and it presents two sets of issues.

The first set of issues concerns whether Wigod has stated viable claims under Illinois common law and the ICFA. We conclude that she has on four counts. Wigod alleges that Wells Fargo agreed to permanently modify her home loan, deliberately misled her into believing it would do so, and then refused to make good on its promise. These allegations support garden-variety claims for breach of contract or promissory estoppel. She has also plausibly alleged that Wells Fargo committed fraud under Illinois common law and engaged in unfair or deceptive business practices in violation of the ICFA. Wigod’s claims for negligent hiring or supervision and for negligent misrepresentation or concealment are not viable, however. They are barred by Illinois’s economic loss doctrine because she alleges only economic harms arising from a contractual relationship. Wigod’s claim for fraudulent concealment is also not actionable because she cannot show that Wells Fargo owed her a fiduciary or other duty of disclosure.

The second set of issues concerns whether these state-law claims are preempted or otherwise barred by federal law. We hold that they are not. HAMP and its enabling statute do not contain a federal right of action, but neither do they preempt otherwise viable statelaw claims. We accordingly reverse the judgment of the district court on the contract, promissory estoppel, fraudulent misrepresentation, and ICFA claims, and affirm its judgment on the negligence claims and fraudulent concealment claim.

pleading - pro se, ifp claimant - frivolous complaint - dismissal

Parran v. Rozum - Cmwlth. Court - March 23, 2012 - unpublished memorandum decision



http://www.pacourts.us/OpPosting/Cwealth/out/2025CD11_3-23-12.pdf



The "allegations of a pro se complainant are held to a less stringent standard than that applied to pleadings filed by attorneys." Danyish v. Dep’t of Corrs., 845 A.2d 260, 262-63 (Pa. Cmwlth. 2004), aff’d, 584 Pa. 122, 881 A.2d 1263 (2005). However, the allegations still have to articulate a factual or legal basis to support his claims. Thomas v. Holtz, 707 A.2d 569 (Pa. Cmwlth. 1998).

If, simultaneous with the commencement of an action or proceeding or the taking of an appeal, a party has filed a petition for leave to proceed in forma pauperis, the court prior to acting upon the petition may dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that the action, proceeding or appeal is frivolous. Bundy v. Beard, 924 A.2d 723, 726 n.7 (Pa. Cmwlth.) (citing Pa.R.C.P No. 240(j)), aff’d, 596 Pa. 103, 941 A.2d 646 (2007).

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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.

sheriff's sale - setting aside - gross inadequacy of price

Bank of America v. Estate of Hood - Superior Court - March 22, 2012

http://www.pacourts.us/OpPosting/Superior/out/A38042_11.pdf

Rule 3132 of the Pennsylvania Rules of Civil Procedure provides as follows: Upon petition of any party in interest before delivery of the personal property or of the sheriff’s
deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper
under the circumstances. Pa.R.C.P. 3132.

Equitable considerations govern the trial court’s decision to set aside a sheriff’s sale. Bornman v. Gordon, 527 A.2d 109, 111 (Pa. Super. 1987), appeal denied, 517 Pa. 620, 538 A.2d 874 (1988). This Court will not reverse the trial court’s decision absent an abuse of discretion. Id.

As a general rule, the burden of proving circumstances warranting the exercise of the court’s equitable powers is on the applicant, and the application to set aside a sheriff’s sale may be
refused because of the insufficiency of proof to support the material allegations of the application, which are generally required to be established by clear evidence. Id.

An abuse of discretion occurs where, for example, the trial court misapplies the law. Warmkessel v. Heffner, 17 A.3d 408, 413 (Pa. Super. 2011), appeal denied, ___ Pa. ___, 34 A.3d 833 (2011).

Gross inadequacy of the sale price: Where a sale is challenged based upon the adequacy of the price our courts have frequently said that mere inadequacy of price standing alone is not a
sufficient basis for setting aside a sheriff’s sale. However where a ‘gross inadequacy’ in the price is established courts have found proper grounds exist to set aside a sheriff’s sale. The courts have traditionally looked at each case on its own facts. It is for this reason that the term ‘grossly inadequate price’ has never been fixed by any court at any given amount or any percentage amount of the sale. Further, it is presumed that the price received at a duly advertised public sale is the highest and best obtainable. Blue Ball Nat'l Bank v. Balmer, 810 A.2d 164, 166-67 (Pa. Super. 2002) (citations omitted), appeal denied, 573 Pa. 662, 820 A.2d 702 (2003).

“The purpose of a sheriff’s sale in mortgage foreclosure proceedings is to realize out of the land, the debt, interest, and costs which are due, or have accrued to, the judgment creditor.” Provident Nat'l Bank, N.A. v. Song, 832 A.2d 1077, 1081 (Pa. Super. 2003), appeal denied, 577 Pa. 736, 848 A.2d 929 (2004). This Court has held that “the outstanding mortgage balance must be considered in determining the adequacy of the sale price.” Continental Bank v. Frank, 495 A.2d 565, 569 (Pa. Super. 1985).

Pennsylvania courts have concluded that a sheriff’s sale price is grossly inadequate where sale price was a small percentage – roughly ten percent or less – of the established market value.

standing

Municipal Authority v. PUC - Cmwlth. Court - March 22, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/1581CD10_3-22-12.pdf

Standing - In order to have standing, a party "must have a direct, immediate, and substantial interest in the subject matter of the controversy." Waddington v. Pennsylvania Pub. Util. Comm’n, 670 A.2d 199, 202 (Pa. Cmwlth. 1995) (emphasis added), appeal denied, 544 Pa. 679, 678 A.2d 368 (1996). "The requirement that an interest be „direct‟ simply means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which he complains." Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 195, 346 A.2d 269, 282 (1975) (plurality) (emphasis added). The requirement that an interest be "immediate" and not a remote consequence of the matter concerns "the nature of the causal connection between the action complained of and the injury to the person challenging it." Id. at 197, 346 A.2d at 283. The requirement of a "substantial" interest means that the interest must have substance—i.e., there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law. Id. at 195, 346 A.2d at 282.

interpreters - oath - Rules of Evidence - Rule 604

566spct.attach.pdf

Rule 604. Interpreter

[s]

[An interpreter is subject to the provisions of Rule 702 (relating to qualification as an expert) and Rule 603 (relating to the administration of an oath or affirmation).]

An interpreter must be qualified and must give an oath or affirmation to make a true translation.

COMMENT

[This rule adopts the substance of F.R.E. 604; the only change is the explicit reference to Pa.Rs.E. 702 and 603, rather than the general reference to “the provisions of these rules” in F.R.E. 604. The need for an interpreter whenever a witness’ natural mode of expression or the language of a document is not intelligible to the trier of fact is well settled. 3 Wigmore, Evidence § 911 (Chadbourn rev. 1970). Under Pa.R.E. 604, an interpreter is treated as an expert witness who must have the necessary skill to translate correctly and who must promise to do so by oath or affirmation.

Pa.R.E. 604 is consistent with those Pennsylvania statutes providing for the appointment of interpreters for the deaf. See 42 Pa.C.S. § 7103 (deaf party in a civil case); 2 Pa.C.S. § 505.1 (deaf party in hearing before Commonwealth agency); 42 Pa.C.S. § 8701 (deaf defendant in criminal case); see also Commonwealth v. Wallace, 433 Pa. Super. 518, 641 A.2d 321 (1994) (applying § 8701). Under each of these statutes, an interpreter must be “qualified and trained to translate for or communicate with deaf persons” and must “swear or affirm that he will make a true interpretation to the deaf person and that he will repeat the statements of the deaf person to the best of his ability.”

There is little statutory authority for the appointment of interpreters, but the practice is well established. See Pa.R.Crim.P. 231(B) (authorizing presence of interpreter while investigating grand jury is in session if supervising judge determines necessary for presentation of evidence); 51 Pa.C.S. § 5507 (under regulations prescribed by governor, convening authority of military court may appoint interpreters). The decision whether to appoint an interpreter is within the discretion of the trial court. See Commonwealth v. Pana, 469 Pa. 43, 364 A.2d 895 (1976) (holding that it was an abuse of discretion to fail to appoint an interpreter for a criminal defendant who had difficulty in understanding and expressing himself in English).]

In 2006, legislation was enacted pertaining to the certification, appointment, and use of interpreters in judicial and administrative proceedings for persons having limited proficiency with the English language and persons who are deaf. See 42 Pa.C.S. §§ 4401-4438; 2 Pa.C.S. §§ 561-588. Pursuant to this legislation, the Administrative Office of the Pennsylvania Courts (“AOPC”) has implemented an interpreter program for judicial proceedings. See 204 Pa. Code §§ 221.101-.407. Information on the court interpreter program and a roster of court interpreters may be obtained from the AOPC web site at www.pacourts.us/t/aopc/courtinterpreterprog.

Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001; amended March 21, 2012, effective April 20, 2012 .

UC - EUC - overpayment - waiver - procedure

Rouse v. UCBR - Cmwlth. Court - March 15, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/2524CD10_3-15-12.pdf

Proper method of requesting a waiver of a nonfault overpayment by is through the Dept. of Labor and Industry, not the UCBR.

Here, the Referee and UCBR decided that the claimant had been overpaid, but that the OP was not her fault and, thus, was nonfraud. The issue of whether the OP should be waived was not before the referee or board.

Section 4005(b) of the Emergency Unemployment Compensation Act of 2008 governs repayment of benefit overpayments provides that overpayments can be waived if "repayment would be contrary to equity and good conscience." 26 U.S.C. §3304 note.

federal courts - costs - electronic discovery

Race Tires America v. Hoosier Racing Tire Corp. - 3d Cir. - March 16, 2012

http://www.ca3.uscourts.gov/opinarch/112316p.pdf

At issue in this appeal is whether all charges imposed by electronic discovery vendors to assist in the collection, processing, and production of electronically stored information (―ESI‖) are taxable against a losing party as ―[f]ees for exemplification [or] the costs of making copies of any materials where the copies are necessarily obtained for use in the case.‖ 28 U.S.C. § 1920(4). We have not previously addressed this issue, and the courts that have considered this question have reached conflicting results. Compare, e.g., In re Aspartame Antitrust Litig., No. 2:06-CV-1732-LDD, 2011 WL 4793239, at *3 (E.D. Pa. Oct. 5, 2011) (―We . . . award costs for the creation of a litigation database, storage of data, imaging hard drives, keyword searches, deduplication, data extraction and processing.‖), with Rawal v. United Air Lines, Inc., No. 07 C 5561, 2012 WL 581146, at *2-4 (N.D. Ill. Feb. 22, 2012) (refusing to award electronic processing costs as taxable).

In view of the significant role that electronic discovery plays in litigation today, involving the collection, processing, and production of huge volumes of data generated as a result of the information technology and communication revolutions, we believe it imperative to provide definitive guidance to the district courts in our Circuit on the question of the extent to which electronic discovery expenses are taxable.1

Footnote 1- In 2004, it was estimated that approximately 95% of all documents were created by electronic means. See, e.g., James M. Evangelista, Polishing the "Gold Standard" on the e-Discovery Cost-Shifting Analysis: Zubulake v. UBS Warburg, LLC, 9 J. Tech. L & Pol‘y 1, 2 (2004). More importantly, the ease with which ESI is created, distributed, duplicated, and stored has resulted in exponentially greater volumes of data that must be assembled, analyzed, and produced in litigation. See The Sedona Conference, The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 193 (2007) (―The shift of information storage to a digital realm has . . . caused an explosion in the amount of information that resides in any enterprise[,] profoundly affecting litigation.‖). It is estimated that in 2011, 1.8 zettabytes of data were created, the equivalent of 57.5 billion iPads, each with thirty-two gigabytes of storage. See Press Release, EMC Corp., World‘s Data More than Doubling Every Two Years—Driving Big Data Opportunity, New IT Roles (June 8, 2011), available at http://www.emc.com/about/news/press/2011/20110628-01.htm (citing John Gantz & David Reinsel, IDC, 2011 Digital Universe Study: Extracting Value from Chaos (2011)). The burden and expense thus far associated with discovery of ESI has resulted in changes to the Federal Rules of Civil Procedure and to the adoption of Federal Rule of Evidence 502, the rules governing discovery in a number of states, the adoption of proposed uniform rules by the National Conference of Commissioners on Uniform State Laws, and the promulgation of standards by the American Bar Association. See, e.g., Fed. R. Civ. P. 34(a) advisory committee‘s note (2006 amendments) (explaining changes to the Federal Rules of Civil Procedure due to the impact of the exponential growth in recoverable information); Fed. R. Evid. 502 advisory committee‘s note (explaining the adoption of Federal Rule of Evidence 502 to respond, in part, to the proliferation of electronic information); Dan H. Willoughby et al., Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789, 791 n.3 (2010) (discussing discovery rule changes in several states due to ESI); Nat‘l Conference of Comm‘rs on Unif. State Laws, Uniform Rules Relating to the Discovery of Electronically Stored Information (2007), available at http://www.law.upenn.edu/b11/archives/ulc/udoera/2007 final.pdf; American Bar Association Civil Discovery Standard § 29 cmt. (2004) (discussing the 2004 amendments to the American Bar Association Civil Discovery Standards to facilitate electronic discovery).

UC - willful misconduct - when negligence can be WM

Smith v. UCBR - March 1, 2012 - Cmwlth. Court - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1262CD11_3-1-12.pdf - unreported

Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week … [i]n which his unemployment is due to his discharge … from work for willful misconduct connected with his work …." 43 P.S. §802(e). "Willful misconduct" is "behavior evidencing a wanton or willful disregard of the employer's interests; a deliberate violation of the employer's work rules; a disregard of standards of behavior the employer can rightfully expect from its employee; [or], negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations." Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008) (emphasis added). Whether a claimant’s conduct rises to the level of willful misconduct is a question of law fully reviewable on appeal. Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 550 Pa. 115, 703 A.2d 452 (1997).

In Myers, our Supreme Court rejected the willful misconduct standard previously applied by this Court in Coulter. See Finch v. Unemployment Comp. Bd. of Review, 692 A.2d 619 (Pa. Cmwlth. 1997). Specifically, our Supreme Court held that an employee’s negligence only constitutes willful misconduct if "[i]t is of ‘such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.’" Myers, 533 Pa. at 378, 625 A.2d at 625 (quoting Coleman v. Unemployment Comp. Bd. of Review, 407 A.2d 130, 131-32 (Pa. Cmwlth. 1979)); Navickas v. Unemployment Comp. Bd. of Review, 567 Pa. 298, 787 A.2d 284 (2001) (negligent conduct must be egregious or repetitive for it to warrant a finding that it is willful misconduct).

UC- EUC - overpayment - waiver - remand for lack of findings

Deklinski v. UCBR - February 23, 2012 - Cmwlth. Court



http://www.pacourts.us/OpPosting/Cwealth/out/1379CD11_2-23-12.pdf



Claimant here does not merely argue that the overpayment was not her fault. Claimant also argues that repayment would be against equity and good conscience because it would cause her financial hardship, a claim not made in Stelter v. UCBR, 14 A.3d 929 (Pa. Cmwlth. 2011), and she presented evidence to support this claim at the hearing. This court has recognized financial hardship as a basis for a waiver request. See, e.g., Grunwald v. UCBR, 829 A.2d 786, 788 (Pa. Cmwlth. 2003).



Although Claimant raised the financial hardship claim before the referee and in her appeal to the UCBR, the UCBR failed to address it. Accordingly, we vacate the UCBR’s order and remand for findings of fact and conclusions of law on the issue of whether repayment of the EUC overpayment would cause Claimant financial hardship.



Title IV of the Supplemental Appropriation Act of 2008, P.L. 110-252, 122 Stat. 2353, Section 4005(b), 26 U.S.C. §3304 Note. Section 4005(b) of the Act provides: In the case of individuals who have received amounts of [EUC] under this title to which they were not entitled, the State shall require such individuals to repay the amounts of such [EUC] to the State agency, except that the State agency may waive such repayment if it determines that – (1) the payment of such [EUC] was without fault on the part of any such individual; and (2) such repayment would be contrary to equity and good conscience. 26 U.S.C. §3304 Note.

contracts - interest - dilatory conduct

Truserve Corp., et al., Aplt v. Morgan's Tool & Supply, No. 10 WAP 2010
Opinion By: Todd, Debra
Posted By: W.D. Prothonotary
	Date Rendered: 2/21/2012
	Date Posted: 2/21/2012
	Opinion Type: Majority Opinion	J-76-2010mo.pdf
	Date Rendered: 2/21/2012
	Date Posted: 2/21/2012
	Opinion Type: Concurring and Dissenting Opinion	J-76-2010codo.pdf

We granted allowance of appeal in the instant case to consider whether a trial court may refuse to award contractual interest to the prevailing party in a contract dispute based on a finding of dilatory conduct by the prevailing party. We hold . . . that a trial court may not refuse to award interest to the prevailing party when the right to interest has been expressly reserved under the terms of the contract.

Where a party to a contract reserves the right to the payment of interest, that interest is considered conventional or contractual interest. In cases where the contract expressly provides for the payment of interest, or the payment of interest is implied by the nature of the promise, the interest is said to become an integral part of the debt itself, and, therefore, is recoverable as of right under the terms of the contract. . . . “If the parties have agreed on the payment of interest, it is payable not as damages but pursuant to a contract duty that is enforceable”)

Moreover, it is a well-established principle of contract law that, where the language of a contract is clear and unambiguous, a trial court is required to give effect to that language. . . .Indeed, this Court has cautioned that it is not the function of a court to rewrite agreements between parties, and a court must give effect to the clear terms to which the parties have agreed. . . . Thus, we have no hesitation in concluding that, where the terms of a contract provide for the payment of interest, a court’s award of such interest in favor of the prevailing party is not discretionary.

Perhaps recognizing that the award of contractual interest was not discretionary, the panel majority of the Superior Court, as noted above, affirmed the trial court’s decision on the basis that TruServ failed to take reasonable steps to mitigate its losses. A party who suffers a loss due to a breach of contract generally has a duty to make reasonable efforts to mitigate his losses. . . . . Moreover, the burden is on the breaching party to show how losses could have been avoided. . . . However, “an injured party . . . is not obligated to mitigate damages when both it and the liable party have an equal opportunity to reduce damages.”. . .

We recognize that, in situations involving a breach of contract for the payment of a sum certain, the breaching party could always reduce its obligation for losses incurred by the non-breaching party simply by paying the amount due and performing the contract. Nevertheless, we conclude that a party who breaches a contract containing an express promise to pay interest may not be permitted to reduce or escape entirely his contractual obligation by subsequently arguing that the nonbreaching party did not prosecute its breach of contract claim with dispatch.

UC - willful misconduct - absenteeism, illness - last absence

Illness may constitute a good cause justification for excessive absenteeism. McKeesport, 625 A.2d at 114 (citing Green v. UCBR, 433 A.2d 587 (Pa. Cmwlth. 1981)).

Even where a history of absenteeism is present, where the final absence which precipitated claimant’s discharge was due to illness, a claimant is entitled to compensation benefits because the last absence “was the result of illness rather than willful misconduct.” Grace v. UCBR, 412 A.2d 1128, 1130 (Pa. Cmwlth. 1980) (quoting Tritex Sportswear, Inc. v. UCBR, 315 A.2d 322 (Pa. Cmwlth. 1974)).

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This discussion appears in an unreported case published today in which the Court affirmed the Board's grant of benefits

http://www.pacourts.us/OpPosting/Cwealth/out/863CD11_2-17-12.pdf