In re Enterprise Rent-a-Car - 3d Cir. - June 29, 2012
http://www.ca3.uscourts.gov/opinarch/112883p.pdf
District Court decision upheld. In re Enterprise Rent-A-Car Wage & Hour Employment Practice Litigation, 735 F.Supp.2d 277 (W.D.Pa.2010).
We are of the view that the starting point for the joint employer test should be N.L.R.B. v. Browning-Ferris Indus. of PA., 691 F.2d 1117, 1123 (3d Cir. 1982). We conclude that "where two or more employers exert significant control over the same employees—[whether] from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment—they constitute ‘joint employers’” under the FLSA. Id. at 1124 see also Moldenhauer v. Tazewell-Pekin Consol. Communications Ctr., 536 F.3d 640 (7th Cir. 2008).
This is consistent with the FLSA regulations regarding joint employment, which state that a joint employment relationship will generally be considered to exist “[w]here the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with another employer.” 29 C.F.R. § 791.2(b). Ultimate control is not necessarily required to find an employer-employee relationship under the FLSA, and even “indirect” control may be sufficient. In other words, the alleged employer must exercise “significant control” Browning-Ferris In , 691 F.2d at 1124.
A court should consider these factors in determining whether an entity is an employer: 1)does the alleged employer have: (1) authority to hire and fire employees; (2) authority to promulgate work rules and assignments, and set conditions of employment, including compensation, benefits, and hours; (3) day-to-day supervision, including employee discipline; and (4) control of employee records, including payroll, insurance, taxes, and the like.
These factors do not constitute an exhaustive list of all potentially relevant facts, and should not be "blindly applied." . . . A determination as to whether a defendant is a joint employer "must be based on a consideration of the total employment situation and the economic realities of the work relationship." . . . . Trial courts should not be confined to "narrow legalistic definitions" and must instead consider all the relevant evidence, including evidence that does not fall neatly within one of the above factors. . . .
Friday, June 29, 2012
Wednesday, June 27, 2012
UC - voluntary quit - 42% decrease in pay
New Castle Area Transit Authority v. UCBR - June 27, 2012 - unpublished memorandum opinion
http://www.pacourts.us/OpPosting/Cwealth/out/2325CD11_6-27-12.pdf
Claimant had good cause to quit when his work assignment changed because of medical issues and his wages decreased from $18.75 per hour to $10.85 per hour.
"[A] substantial reduction in pay can constitute a ‘necessitous and compelling’ cause for voluntarily terminating one’s employment. It is true that there is no talismanic percentage figure that separates a substantial reduction from one that is not. Each case must be measured by its own circumstances." Ship Inn, Inc. v. UCBR, 412 A.2d 913, 915 (Pa. Cmwlth. 1980).
While this Court has found "a 3.1[%] pay cut is not a substantial figure sufficient to establish necessitous and compelling cause[,]" Pacini v. UCBR, 518 A.2d 606, 608 (Pa. Cmwlth. 1986), this Court in Ship Inn found that a 22% cut in salary was a necessitous and compelling cause for voluntary employment termination. Similarly, this Court in Morysville Body Works, Inc. v. UCBR, 430 A.2d 376 (Pa. Cmwlth. 1981) affirmed the UCBR’s award of benefits where the Claimant voluntarily terminated his employment due to a 25% wage reduction.
In the instant case, Claimant was offered a job at a wage rate of 42% less his final hourly wage. Clearly, this wage reduction is a substantial cut, thereby, establishing a necessitous and compelling cause for Claimant to voluntarily terminate his employment. Accordingly, the UCBR did not err in concluding the same.
_________________
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.
http://www.pacourts.us/OpPosting/Cwealth/out/2325CD11_6-27-12.pdf
Claimant had good cause to quit when his work assignment changed because of medical issues and his wages decreased from $18.75 per hour to $10.85 per hour.
"[A] substantial reduction in pay can constitute a ‘necessitous and compelling’ cause for voluntarily terminating one’s employment. It is true that there is no talismanic percentage figure that separates a substantial reduction from one that is not. Each case must be measured by its own circumstances." Ship Inn, Inc. v. UCBR, 412 A.2d 913, 915 (Pa. Cmwlth. 1980).
While this Court has found "a 3.1[%] pay cut is not a substantial figure sufficient to establish necessitous and compelling cause[,]" Pacini v. UCBR, 518 A.2d 606, 608 (Pa. Cmwlth. 1986), this Court in Ship Inn found that a 22% cut in salary was a necessitous and compelling cause for voluntary employment termination. Similarly, this Court in Morysville Body Works, Inc. v. UCBR, 430 A.2d 376 (Pa. Cmwlth. 1981) affirmed the UCBR’s award of benefits where the Claimant voluntarily terminated his employment due to a 25% wage reduction.
In the instant case, Claimant was offered a job at a wage rate of 42% less his final hourly wage. Clearly, this wage reduction is a substantial cut, thereby, establishing a necessitous and compelling cause for Claimant to voluntarily terminate his employment. Accordingly, the UCBR did not err in concluding the same.
_________________
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.
Administrative law - burden of proof
Victory Support Services v. DPW - Cmwlth. Court - June 27, 2012 - unpublished memorandum decision
http://www.pacourts.us/OpPosting/Cwealth/out/1849CD11_6-27-12.pdf
The burden of proof at an initial hearing on an agency’s order is on the agency to justify its action. See B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649 (Pa. Cmwlth. 2012); S. Hills Health Sys. v. Dep’t of Pub. Welfare, 510 A.2d 934 (Pa. Cmwlth. 1986) (the party asserting the existence of certain facts bears the burden of proving them).
________________
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.
http://www.pacourts.us/OpPosting/Cwealth/out/1849CD11_6-27-12.pdf
The burden of proof at an initial hearing on an agency’s order is on the agency to justify its action. See B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649 (Pa. Cmwlth. 2012); S. Hills Health Sys. v. Dep’t of Pub. Welfare, 510 A.2d 934 (Pa. Cmwlth. 1986) (the party asserting the existence of certain facts bears the burden of proving them).
________________
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.
Welfare - adultBasic - Tobacco Settlement Agreement - Pa. Constitution, etc.
Sears. v. Corbett - Cmwlth. Court - June 27, 2012 (en banc 5-2)
http://www.pacourts.us/OpPosting/Cwealth/out/121MD11_6-27-12.pdf
Suit to compel state to allocate monies, as per Tobacco Settlement Agreement, that would maintain adultBasic program.
On defendants' preliminary objections, the court held that
* sovereign immunity - Suits which seek to restrain state officials from performing affirmative acts are not within the rule of immunity - POs overruled
* unlawful redirection of Master Settlement Agreement funds - "If these monies had not been redirected, it appears that there would have been sufficient funding for adultBasic in 2011. Thus, Respondents’ preliminary objection in this regard must be overruled.
* Pa. Constitution, Article I, sec. 3 - single subject rule - The statute deals with "multiple diverse subjects" - possible violation of single subject rule - POs overruled
* legislative power vested in General Assembly - petitioners' claim under this section held to be justiciable
* standing - Preliminary objection that, to the extent that their second amended petition for review challenges any provisions of the Fiscal Code amendments unrelated to adultBasic, Petitioners lack standing upheld by court
* class action - court cannot rule on propriety of a class action until the close of the pleadings
http://www.pacourts.us/OpPosting/Cwealth/out/121MD11_6-27-12.pdf
Suit to compel state to allocate monies, as per Tobacco Settlement Agreement, that would maintain adultBasic program.
On defendants' preliminary objections, the court held that
* sovereign immunity - Suits which seek to restrain state officials from performing affirmative acts are not within the rule of immunity - POs overruled
* unlawful redirection of Master Settlement Agreement funds - "If these monies had not been redirected, it appears that there would have been sufficient funding for adultBasic in 2011. Thus, Respondents’ preliminary objection in this regard must be overruled.
* Pa. Constitution, Article I, sec. 3 - single subject rule - The statute deals with "multiple diverse subjects" - possible violation of single subject rule - POs overruled
* legislative power vested in General Assembly - petitioners' claim under this section held to be justiciable
* standing - Preliminary objection that, to the extent that their second amended petition for review challenges any provisions of the Fiscal Code amendments unrelated to adultBasic, Petitioners lack standing upheld by court
* class action - court cannot rule on propriety of a class action until the close of the pleadings
Thursday, June 21, 2012
UC - drug testing
unreported drug testing case - Cmwlth Court June 20, 2012
http://www.pacourts.us/OpPosting/Cwealth/out/2223CD11_6-20-12.pdf
Some language from the opinion
We rejected the argument that a medical review officer was necessary to admit drug testing results in Turner v. Unemployment Compensation Board of Review, 899 A.2d 381 (Pa. Cmwlth. 2006). In this case, this Court re-emphasized our earlier determinations that:
[I]t is not essential to produce either the person who made the entries or the custodian of the record at the time the entries were made or that the witness qualifying the business records even has personal knowledge of the facts reported in the business record. As long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness of the business records of a company, a sufficient basis is provided to offset the hearsay character of the evidence. Id., at 386 (quoting Business Records as Evidence Act, 42 Pa. C.S. §6108(b)).
http://www.pacourts.us/OpPosting/Cwealth/out/2223CD11_6-20-12.pdf
Some language from the opinion
We rejected the argument that a medical review officer was necessary to admit drug testing results in Turner v. Unemployment Compensation Board of Review, 899 A.2d 381 (Pa. Cmwlth. 2006). In this case, this Court re-emphasized our earlier determinations that:
[I]t is not essential to produce either the person who made the entries or the custodian of the record at the time the entries were made or that the witness qualifying the business records even has personal knowledge of the facts reported in the business record. As long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness of the business records of a company, a sufficient basis is provided to offset the hearsay character of the evidence. Id., at 386 (quoting Business Records as Evidence Act, 42 Pa. C.S. §6108(b)).
Welfare - MA - assets - special needs trust
Lewis v. Alexander - 3d Cir. - June 20, 2012
http://www.ca3.uscourts.gov/opinarch/113439p.pdf
The court concluded that Plaintiffs‟ case is justiciable and that they have a private right of action under both Section 1983 and the Supremacy Clause of the Constitution.
On the merits of Plaintiff's challenge, it decided that the District Court was correct in its determination that the 50% repayment provision of 62 P.S. 1414, "special needs" provision, expenditure provision, and age restriction are all preempted by federal law.
However, it decided that the enforcement provision of Section 1414 – when used to enforce provisions not otherwise preempted by federal law – is a reasonable exercise of the Commonwealth's retained authority to regulate trusts.
Affirmed in part and reversed in part.
http://www.ca3.uscourts.gov/opinarch/113439p.pdf
The court concluded that Plaintiffs‟ case is justiciable and that they have a private right of action under both Section 1983 and the Supremacy Clause of the Constitution.
On the merits of Plaintiff's challenge, it decided that the District Court was correct in its determination that the 50% repayment provision of 62 P.S. 1414, "special needs" provision, expenditure provision, and age restriction are all preempted by federal law.
However, it decided that the enforcement provision of Section 1414 – when used to enforce provisions not otherwise preempted by federal law – is a reasonable exercise of the Commonwealth's retained authority to regulate trusts.
Affirmed in part and reversed in part.
Friday, June 15, 2012
abuse - expungement - late appeal - notice of right to appeal
K.G. v. DPW - Cmwlth. Court - June 15, 2012 - unreported memorandum decision (2-1, Levitt dissenting)
http://www.pacourts.us/OpPosting/Cwealth/out/1001CD11_6-15-12.pdf
Appeal of alleged perpetrator of abuse -- a nursing student -- was not permitted to be filed nunc pro tunc.
CYF denied K.G.’s request for appeal of a report of abuse, announced in a letter dated September 18, 2009, which advised K.G. that she had the right to a hearing before the Secretary of DPW. K.G. did not request a hearing until March 5, 2010, when she submitted her request by fax.
The court (2-1) rejected K.G.'s claims that(1) the September 18, 2009 decision provided insufficient notice of her appeal rights; (2) the time it took K.G. to obtain counsel; and (3) the confusion she claimed the Department’s January 26, 2006 letter (concerning a report of abuse against her husband) created by indicating that the report of child abuse identified in the husband's case was unfounded, after the alleged victim -- K.G.'s stepdaughter -- had recanted the claim of abuse by K.G.'s husband - the alleged victim's father.
Dissent - The dissent argued that the notice to K.G. was confusing, and that and "indicated report of child abuse implicates due process because this report can destroy the alleged perpetrator's ability to make a living in some lines of work. When so much is at stake, the government‟s notice to a lay citizen about how to pursue an appeal of such a report must be clear and unequivocal." The dissent said that language in the DPW letter telling K.G.
If it is your desire to have a hearing, please submit your request in writing within 45 days of the date of this letter to Child Abuse Appeals at the above address. Please include a telephone number where you can be contacted. [emphasis added]
K.G. apparently understood this letter to mean that the Department of Public Welfare was requesting, not demanding, a written appeal in 45 days that included her phone number. She did not understand the 45 days to be mandatory. Stated otherwise, she believed she could appeal by some other means or timetable, to be determined by when she conceived a "desire to have a hearing." "Please" is not a synonym for "must," as argued by Wayne County Children and Youth Services.
The dissent rejected the argument that DPW's politeness in adding the word "please" to the imperative "submit" should be encouraged. It agree that politeness is desirable, but not at the expense of clarity. Had the Department's notice also warned K.G. of the consequence of not finding it pleasing to submit a written request for a hearing in 45 days, its notice would have been satisfactory.
The dissent contains an lengthly discussing of the word "please" and stresses that K.G., will be denied the right to be a nurse by the rejection of her appeal.
----------------
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.
http://www.pacourts.us/OpPosting/Cwealth/out/1001CD11_6-15-12.pdf
Appeal of alleged perpetrator of abuse -- a nursing student -- was not permitted to be filed nunc pro tunc.
CYF denied K.G.’s request for appeal of a report of abuse, announced in a letter dated September 18, 2009, which advised K.G. that she had the right to a hearing before the Secretary of DPW. K.G. did not request a hearing until March 5, 2010, when she submitted her request by fax.
The court (2-1) rejected K.G.'s claims that(1) the September 18, 2009 decision provided insufficient notice of her appeal rights; (2) the time it took K.G. to obtain counsel; and (3) the confusion she claimed the Department’s January 26, 2006 letter (concerning a report of abuse against her husband) created by indicating that the report of child abuse identified in the husband's case was unfounded, after the alleged victim -- K.G.'s stepdaughter -- had recanted the claim of abuse by K.G.'s husband - the alleged victim's father.
Dissent - The dissent argued that the notice to K.G. was confusing, and that and "indicated report of child abuse implicates due process because this report can destroy the alleged perpetrator's ability to make a living in some lines of work. When so much is at stake, the government‟s notice to a lay citizen about how to pursue an appeal of such a report must be clear and unequivocal." The dissent said that language in the DPW letter telling K.G.
If it is your desire to have a hearing, please submit your request in writing within 45 days of the date of this letter to Child Abuse Appeals at the above address. Please include a telephone number where you can be contacted. [emphasis added]
K.G. apparently understood this letter to mean that the Department of Public Welfare was requesting, not demanding, a written appeal in 45 days that included her phone number. She did not understand the 45 days to be mandatory. Stated otherwise, she believed she could appeal by some other means or timetable, to be determined by when she conceived a "desire to have a hearing." "Please" is not a synonym for "must," as argued by Wayne County Children and Youth Services.
The dissent rejected the argument that DPW's politeness in adding the word "please" to the imperative "submit" should be encouraged. It agree that politeness is desirable, but not at the expense of clarity. Had the Department's notice also warned K.G. of the consequence of not finding it pleasing to submit a written request for a hearing in 45 days, its notice would have been satisfactory.
The dissent contains an lengthly discussing of the word "please" and stresses that K.G., will be denied the right to be a nurse by the rejection of her appeal.
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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.
Monday, June 11, 2012
open records - (im)proper addressee, (im)proper procedures not decisive
Pennsylvania Gaming Control Board v. Office of Open Records - Cmwlth. Court - June 11, 2012 (4-3)
http://www.pacourts.us/OpPosting/Cwealth/out/1134CD09_6-11-12.pdf
A written request for records sent to the wrong person in an agency must be forwarded to the agency's open-records officer.
If a written request does not comply with an agency’s policy for such requests, the open-records officer in the agency must so notify the requester of this fact so that the requester can resubmit the request.
http://www.pacourts.us/OpPosting/Cwealth/out/1134CD09_6-11-12.pdf
A written request for records sent to the wrong person in an agency must be forwarded to the agency's open-records officer.
If a written request does not comply with an agency’s policy for such requests, the open-records officer in the agency must so notify the requester of this fact so that the requester can resubmit the request.
Friday, June 08, 2012
debt collection - misleading - credit bureau v. debt collector
Durr v. Rochester Credit Center - ED Pa. - June 4, 2012
http://www.paed.uscourts.gov/documents/opinions/12D0564P.pdf
A collection letter that reads: "The CREDIT BUREAU Collection Division" and ends, at the bottom:: “**THIS IS AN ATTEMPT TO COLLECT A DEBT BY A DEBT COLLECTOR AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE” may violate the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Defendant's motion for summary judgment denied.
With respect to the general claim that the letter was deceptive because it suggested a credit reporting agency was involved in the collection effort, whether or not a collection letter creates a misleading impression is judged from the perspective of the “least sophisticated consumer.” Brown v. Card Services Ctr., 464 F.3d 450, 453 (3d Cir. 2006).
If a letter “can be reasonably read to have two or more meanings, one of which is inaccurate,” and misleading it is deceptive. Rosenau v. Unifund, 539 F.3d 218, 222 (3d Cir. 2008).
Here, the evidence viewed in the light most favorable to the non-moving party, is that the letter in question is equally susceptible to different interpretations, one of which is at odds with the other.
With respect to the more specific claim that the letter suggests that a consumer reporting agency is involved with the collection of the debt, a genuine issue of material fact exists.
http://www.paed.uscourts.gov/documents/opinions/12D0564P.pdf
A collection letter that reads: "The CREDIT BUREAU Collection Division" and ends, at the bottom:: “**THIS IS AN ATTEMPT TO COLLECT A DEBT BY A DEBT COLLECTOR AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE” may violate the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Defendant's motion for summary judgment denied.
With respect to the general claim that the letter was deceptive because it suggested a credit reporting agency was involved in the collection effort, whether or not a collection letter creates a misleading impression is judged from the perspective of the “least sophisticated consumer.” Brown v. Card Services Ctr., 464 F.3d 450, 453 (3d Cir. 2006).
If a letter “can be reasonably read to have two or more meanings, one of which is inaccurate,” and misleading it is deceptive. Rosenau v. Unifund, 539 F.3d 218, 222 (3d Cir. 2008).
Here, the evidence viewed in the light most favorable to the non-moving party, is that the letter in question is equally susceptible to different interpretations, one of which is at odds with the other.
With respect to the more specific claim that the letter suggests that a consumer reporting agency is involved with the collection of the debt, a genuine issue of material fact exists.
MA - undocumented aliens - emergency medical condition - acute symptoms
Spring Creek Management v. DPW - Cmwlth. Court - June 8, 2012
http://www.pacourts.us/OpPosting/Cwealth/out/2162CD11_6-8-12.pdf
This case presents an issue of first impression for this Court: under what circumstances does an emergency medical condition continue, and when does the emergency end, such that an undocumented alien‟s treatment is no longer eligible for MA pursuant to federal and state law, 55 Pa. Code § 150.11 and Section 1396b(v) of title XIX of the Social Security Act (SSA), 42 U.S.C. § 1396b(v).
The patient in this case suffered a stroke in June 2010, for which she was hospitalized until September 2010. On September 16, 2010, she entered Spring Creek and, on September 29, 2010, Spring Creek submitted, on her behalf, an application for MA/LTC benefits to the CAO. The CAO requested proof of her ‟emergency medical condition" and Spring Creek sent the CAO additional documentation. By notice mailed April 13, 2011, the CAO denied the requested MA/LTC benefits because it determined that no emergency medical condition existed and, therefore, the patient was ineligible for assistance. Spring Creek timely appealed to the Bureau of Hearings and Appeals (BHA), and the ALJ held a hearing, after which he upheld the CAO decision.
After considering the arguments, the plain language of Section 150.11 of the Department‟s regulations and Section 1396b(v) of the SSA, and the existing case law interpreting Section 1396b(v), we, like the other courts that have addressed this issue, believe we must focus on the term "acute." The plain language of Section 1396b(v), which Section 150.11 mirrors, requires an emergency medical condition to manifest itself through acute symptoms, which is defined as "characterized by sharpness or severity . . . having a sudden onset, sharp rise, and short course . . . [as] opposed to chronic.‟
To meet the standard the emergency medical condition must manifest itself through acute symptoms, and the treatment for the emergency medical condition must be immediately necessary to prevent the three statutory outcomes. Here, the Clinical Director testified that the patient suffers from an "aggregate of very severe chronic conditions" and acknowledged that "treatment and care would be for an indefinite period of time. A review of the record reveals that there is no evidence to support the conclusion that the patient is manifesting acute symptoms thereby rendering her condition an emergency medical condition for which she would be eligible for MA/LTC benefits. The fact that, without the treatment she receives , the patient "might [suffer] one of the three adverse consequences listed [in] the statute," Scottsdale, 75 P.3d at 97, does not alter the fact that W.T. currently is not suffering from an emergency medical condition that, without immediate attention, would lead to one of the adverse consequences set forth in Section 150.11 and Section 1396b(v). The "focus must be on the patient‟s current condition and whether that condition satisfies the criteria" of emergency medical condition.
In addition, the court held that, the provisions for ongoing care set forth in the Operations Memo do not mandate that the patient be found eligible for MA/LTC benefits for ongoing treatment for the results of her stroke. The Operations Memo refers to eligibility requirements "if there is a need for emergency medical services involving ongoing treatment."
Before making this case-by-case determination, the following information must be advanced to a CAO: "the nature of the emergency medical condition"; "[t]hat the medical treatment was necessary because of the emergency condition"; and "[t]he approximate duration of the emergency (this includes a treatment plan)." All of these requirements are predicated on the existence of an emergency medical condition for which ongoing treatment is necessary. Here, as stated above, the provider failed to establish that the patient currently is suffering from an emergency medical condition and, therefore, the ongoing treatment provisions explained in the Operations Memo are not applicable.
http://www.pacourts.us/OpPosting/Cwealth/out/2162CD11_6-8-12.pdf
This case presents an issue of first impression for this Court: under what circumstances does an emergency medical condition continue, and when does the emergency end, such that an undocumented alien‟s treatment is no longer eligible for MA pursuant to federal and state law, 55 Pa. Code § 150.11 and Section 1396b(v) of title XIX of the Social Security Act (SSA), 42 U.S.C. § 1396b(v).
The patient in this case suffered a stroke in June 2010, for which she was hospitalized until September 2010. On September 16, 2010, she entered Spring Creek and, on September 29, 2010, Spring Creek submitted, on her behalf, an application for MA/LTC benefits to the CAO. The CAO requested proof of her ‟emergency medical condition" and Spring Creek sent the CAO additional documentation. By notice mailed April 13, 2011, the CAO denied the requested MA/LTC benefits because it determined that no emergency medical condition existed and, therefore, the patient was ineligible for assistance. Spring Creek timely appealed to the Bureau of Hearings and Appeals (BHA), and the ALJ held a hearing, after which he upheld the CAO decision.
After considering the arguments, the plain language of Section 150.11 of the Department‟s regulations and Section 1396b(v) of the SSA, and the existing case law interpreting Section 1396b(v), we, like the other courts that have addressed this issue, believe we must focus on the term "acute." The plain language of Section 1396b(v), which Section 150.11 mirrors, requires an emergency medical condition to manifest itself through acute symptoms, which is defined as "characterized by sharpness or severity . . . having a sudden onset, sharp rise, and short course . . . [as] opposed to chronic.‟
To meet the standard the emergency medical condition must manifest itself through acute symptoms, and the treatment for the emergency medical condition must be immediately necessary to prevent the three statutory outcomes. Here, the Clinical Director testified that the patient suffers from an "aggregate of very severe chronic conditions" and acknowledged that "treatment and care would be for an indefinite period of time. A review of the record reveals that there is no evidence to support the conclusion that the patient is manifesting acute symptoms thereby rendering her condition an emergency medical condition for which she would be eligible for MA/LTC benefits. The fact that, without the treatment she receives , the patient "might [suffer] one of the three adverse consequences listed [in] the statute," Scottsdale, 75 P.3d at 97, does not alter the fact that W.T. currently is not suffering from an emergency medical condition that, without immediate attention, would lead to one of the adverse consequences set forth in Section 150.11 and Section 1396b(v). The "focus must be on the patient‟s current condition and whether that condition satisfies the criteria" of emergency medical condition.
In addition, the court held that, the provisions for ongoing care set forth in the Operations Memo do not mandate that the patient be found eligible for MA/LTC benefits for ongoing treatment for the results of her stroke. The Operations Memo refers to eligibility requirements "if there is a need for emergency medical services involving ongoing treatment."
Before making this case-by-case determination, the following information must be advanced to a CAO: "the nature of the emergency medical condition"; "[t]hat the medical treatment was necessary because of the emergency condition"; and "[t]he approximate duration of the emergency (this includes a treatment plan)." All of these requirements are predicated on the existence of an emergency medical condition for which ongoing treatment is necessary. Here, as stated above, the provider failed to establish that the patient currently is suffering from an emergency medical condition and, therefore, the ongoing treatment provisions explained in the Operations Memo are not applicable.
Tuesday, June 05, 2012
Equal Protection - U.S. Supreme Court decision - rational basis
Armour v. City of Indianapolis - US Supreme Court - June 4, 2012
http://wwwsupremecourt.gov/opinions/11pdf/11-161.pdf (24 pp.)
SUPREME COURT OF THE UNITED STATES
ARMOUR ET AL. v. CITY OF INDIANAPOLIS, INDIANA, ET AL.
CERTIORARI TO THE SUPREME COURT OF INDIANA
No. 11–161. Argued February 29, 2012—Decided June 4, 2012
For decades, Indianapolis (City) funded sewer projects using Indiana’s Barrett Law, which permitted cities to apportion a public improvement project’s costs equally among all abutting lots. Under that system, a city would create an initial assessment, dividing the total estimated cost by the number of lots and making any necessary adjustments. Upon a project’s completion, the city would issue a final lot-by-lot assessment. Lot owners could elect to pay the assessment in a lump sum or over time in installments. After the City completed the Brisbane/Manning Sanitary Sewers Project, it sent affected homeowners formal notice of their payment obligations. Of the 180 affected homeowners, 38 elected to pay the lump sum. The following year, the City abandoned Barrett Law financing and adopted the Septic Tank Elimination Program (STEP),which financed projects in part through bonds, thereby lowering individual owner’s sewer-connection costs. In implementing STEP, the City’s Board of Public Works enacted a resolution forgiving all assessment amounts still owed pursuant to Barrett Law financing. Homeowners who had paid the Brisbane/Manning Project lump sum received no refund, while homeowners who had elected to pay in installments were under no obligation to make further payments. The 38 homeowners who paid the lump sum asked the City for a refund, but the City denied the request. Thirty-one of these homeowners brought suit in Indiana state court claiming, in relevant part, that the City’s refusal violated the Federal Equal Protection Clause.The trial court granted summary judgment to the homeowners, and the State Court of Appeals affirmed. The Indiana Supreme Court reversed, holding that the City’s distinction between those who had already paid and those who had not was rationally related to its legitimate interests in reducing administrative costs, providing financial hardship relief to homeowners, transitioning from the Barrett Law system to STEP, and preserving its limited resources.
Held: The City had a rational basis for its distinction and thus did not violate the Equal Protection Clause. Pp. 6–14.
(a) The City’s classification does not involve a fundamental right or suspect classification. See Heller v. Doe, 509 U. S. 312, 319–320. Its subject matter is local, economic, social, and commercial. See United States v. Carolene Products Co., 304 U. S. 144, 152. It is a tax classification. See Regan v. Taxation With Representation of Wash., 461
U. S. 540, 547. And no one claims that the City has discriminated against out-of-state commerce or new residents. Cf. Hooper v. Bernalillo County Assessor, 472 U. S. 612. Hence, the City’s distinction does not violate the Equal Protection Clause as long as "there is any reasonably conceivable state of facts that could provide a rational basis for the classification," FCC v. Beach Communications, Inc., 508 U. S. 307, 313, and the " ‘burden is on the one attacking the [classification] to negative every conceivable basis which might support it,’ " Heller, supra, at 320. Pp. 6–7.
(b) Administrative concerns can ordinarily justify a tax-related distinction, see, e.g., Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 511–512, and the City’s decision to stop collecting outstanding Barrett Law debts finds rational support in the City’s administrative concerns. After the City switched to the STEP system, any decision to continue Barrett Law debt collection could have proved complex and expensive. It would have meant maintaining an administrative system for years to come to collect debts arising out of 20-plus different construction projects built over the course of a decade, involving monthly payments as low as $25 per household, with the possible need to maintain credibility by tracking down defaulting debtors and bringing legal action. The rationality of the City’s distinction draws further support from the nature of the line-drawing choices that confronted it. To have added refunds to forgiveness would have meant adding further administrative costs, namely the cost of processing refunds. And limiting refunds only to Brisbane/Manning homeowners would have led to complaints of unfairness, while expanding refunds to the apparently thousands of other Barrett Law project homeowners would have involved an even greater administrative burden. Finally, the rationality of the distinction draws support from the fact that the line that the City drew—distinguishing past payments from future obligations—is well known to the law. See, e.g., 26 U. S. C. §108(a)(1)(E). Pp. 7–10.
(c) Petitioners’ contrary arguments are unpersuasive. Whether financial hardship is a factor supporting rationality need not be considered here, since the City’s administrative concerns are sufficient to show a rational basis for its distinction. Petitioners propose other forgiveness systems that they argue are superior to the City’s system,but the Constitution only requires that the line actually drawn by the City be rational. Petitioners further argue that administrative considerations alone should not justify a tax distinction lest a city justify an unfair system through insubstantial administrative considerations. Here it was rational for the City to draw a line that avoided the administrative burden of both collecting and paying out small sums for years to come. Petitioners have not shown that the administrative concerns are too insubstantial to justify the classification. Finally, petitioners argue that precedent makes it more difficult for the City to show a rational basis, but the cases to which they refer involve discrimination based on residence or length of residence. The one exception, Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336, is distinguishable. Pp. 10–14.
946 N. E. 2d 553, affirmed.
BREYER, J., delivered the opinion of the Court, in which KENNEDY,
THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA and ALITO, JJ., joined.
Thursday, May 31, 2012
UC - late appeal - two contrary determinations in the same envelope
Martilla v. UCBR - Cmwlth. Court - May 31, 2012 - unpublished memorandum decision
http://www.pacourts.us/OpPosting/Cwealth/out/2185CD11_5-31-12.pdf
Claimant's late appeal could not be considered nunc pro tunc, since there was no breakdown in the administrative system under the fact of the case.
Claimant filed an application for benefits. The UC Service Center issued two Notices of Determination, both of which were in the same envelope: the first indicated that Claimant was eligible for benefits under Section 402(e) because he was not discharged for willful misconduct, but the second indicated that he was ineligible under Section 402(h) due to engaging in self-employment.
Claimant, however, only saw the determination finding him eligible under 402(e) and did not take out the other documents in the envelope until several weeks later, when he noticed that he was not getting UC benefits, at which time he filed an appeal.
The court said
_______________________
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.
http://www.pacourts.us/OpPosting/Cwealth/out/2185CD11_5-31-12.pdf
Claimant's late appeal could not be considered nunc pro tunc, since there was no breakdown in the administrative system under the fact of the case.
Claimant filed an application for benefits. The UC Service Center issued two Notices of Determination, both of which were in the same envelope: the first indicated that Claimant was eligible for benefits under Section 402(e) because he was not discharged for willful misconduct, but the second indicated that he was ineligible under Section 402(h) due to engaging in self-employment.
Claimant, however, only saw the determination finding him eligible under 402(e) and did not take out the other documents in the envelope until several weeks later, when he noticed that he was not getting UC benefits, at which time he filed an appeal.
The court said
Claimant does not demonstrate how receiving two notices in the same envelope – one which found him eligible for benefits and one which found him ineligible – amounts to an administrative breakdown. Because he admits that he received the determination finding him ineligible for benefits under Section 402(h) of the Law, Claimant was not misled by the Service Center, but only by his own failure to read all documents sent to him. Additionally, as the Referee pointed out, while Claimant received confirmation notices after he submitted his bi-weekly claims, these notices were nothing more than a confirmation that the claim had been received, not a notification that Claimant would be paid. Claimant’s subjective belief, coupled with his failure to monitor whether he was actually receiving the money, does not amount to an administrative breakdown.
Claimant also argues that he should be allowed to file his claim late because he did not act negligently in failing to timely file his appeal. However, the Board properly determined that Claimant was negligent in failing to read all documents in the envelope from the Service Center and in failing to monitor his bank account for several months. Claimant’s appeal was, therefore, properly dismissed as untimely.
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.
Wednesday, May 30, 2012
non-conviction arrest record - expungement - detailed disposition record - right to hearing
Commonwealth v. Wallace - Superior Court - May 25, 2012
http://www.pacourts.us/OpPosting/Superior/out/s39010_11.pdf
There is a long-standing right in this Commonwealth to petition for expungement of a criminal arrest record, a right that is adjunct of due process. Carlacci v. Mazaleski, [798 A.2d 186, 188 (Pa. 2002). . . . Judicial analysis and evaluation of a petition to expunge depend upon the manner of disposition of the charges against the petitioner.
When an individual has been convicted of the offenses charged, then expungement of criminal history records may be granted only under very limited circumstances that are set forth by statute. 18 Pa.C.S. § 9122; Hunt v. Pennsylvania State Police, 604 Pa. 156, 983 A.2d 627, 633 (2009).
When a petitioner has been tried and acquitted of the offenses charged, we have held that the petitioner is “automatically entitled to the expungement of his arrest record.” Commonwealth v. D.M., 548 Pa. 131, 695 A.2d 770, 772-73 (1997).
When a prosecution has been terminated without conviction or acquittal, for reasons such as nolle prosse of the charges or the defendant’s successful completion of an accelerated rehabilitative disposition program (“ARD”), then the trial court must “balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records.” Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa.1981)
To aid courts in applying the balancing test for expungement, the Wexler Court adopted the following nonexhaustive list of factors that the court should consider: These factors include [1] the strength of the Commonwealth’s case against the petitioner, [2] the reasons the Commonwealth gives for wishing to retain the records, [3] the petitioner’s age, criminal record, and employment history, [4] the length of time that has elapsed between the arrest and the petition to expunge, and [5] the specific adverse consequences the petitioner may endure should expunction be denied. Wexler, supra at 879 (citation omitted).
In applying the balancing test and considering the above factors, the court must analyze the particular, specific facts of the case before it. Id. at 880-81. The mere assertion by the Commonwealth of a general interest in maintaining accurate records of those accused of a crime does not outweigh an individual’s specific, substantial interest in clearing his or her record. Id. at 881-82. Commonwealth v. Moto, ___ Pa. ___, ___, 23 A.3d 989, 993-994 (2011).
Here, the official record in this matter consists of six incomplete, disorganized parts and appears to cover 19 arrests, 37 criminal action numbers, and approximately 228 charges as of May 10, 2010. As of that date, we estimate that the charges had terminated in four guilty pleas, four convictions, sixteen acquittals, five sustained demurrers, fourteen withdrawals, fifty-three dismissals, forty-four nolle prosequi, three transfers to family court, thirty transfers to juvenile division, and fifty-five held for court. The record does not indicate whether the nolle prossed and
withdrawn charges were based upon a lack of evidentiary support or whether the charges were dropped in exchange for a plea. Moreover, the record does not indicate why some charges were dismissed. Yet, the Commonwealth argues generally - and the trial court agrees - that none of the records should be expunged in light of Appellant’s extensive criminal record and the possibility that he might reoffend.
Substantively, and depending on the circumstances surrounding their termination, some of Appellant’s non-conviction arrest records may be eligible for expungement under the laws of Pennsylvania. However, we cannot make that determination based on the record at hand. Therefore, we remand to the trial court for “a clarification of the record as much as a clarification of the reasons for the trial court decision.” Roland, 871 A.2d at 222. Toward that purpose, “we cannot suggest strongly enough that all parties provide a comprehensive list of each criminal action number in question with the disposition of each charge contained therein.” Id. The trial court should then apply the Wexler factors, balancing Appellant’s right to be free from the harm attendant to maintenance of the arrest records against the Commonwealth’s interest in preserving such records, to determine in each particular case whether justice requires expungement. Waughtel, 999 A.2d at 625; A.M.R., 887 A.2d at 1268.
Individuals have the right, as an adjunct to due process, to seek expungement of their criminal records which can be effectuated through a hearing.[…] Punishment of the innocent is the clearest denial of life, liberty and property without due process of law. To remedy such a situation, an individual must be afforded a hearing to present his claim that he is entitled to an expungement - that is, because an innocent individual has a right to be free from unwarranted punishment, a court has the authority to remedy the denial of that right by ordering expungement of the arrest record. Maxwell, 737 A.2d at 1245 (citation omitted); accord Roland, 871 A.2d at 221
Having determined that the record at hand requires supplementation and clarification with regard to the circumstances surrounding Appellant’s non-conviction arrest records, we conclude that a hearing for this purpose is necessary. Accordingly, while making no determination as to whether expungement is warranted, we vacate the orders denying the motions for expungement and remand for a hearing on which non-conviction arrests records, if any, are eligible for application of the Wexler factors, and, based on application of the Wexler factors, which non-conviction arrests records, if any, should be expunged.
http://www.pacourts.us/OpPosting/Superior/out/s39010_11.pdf
There is a long-standing right in this Commonwealth to petition for expungement of a criminal arrest record, a right that is adjunct of due process. Carlacci v. Mazaleski, [798 A.2d 186, 188 (Pa. 2002). . . . Judicial analysis and evaluation of a petition to expunge depend upon the manner of disposition of the charges against the petitioner.
When an individual has been convicted of the offenses charged, then expungement of criminal history records may be granted only under very limited circumstances that are set forth by statute. 18 Pa.C.S. § 9122; Hunt v. Pennsylvania State Police, 604 Pa. 156, 983 A.2d 627, 633 (2009).
When a petitioner has been tried and acquitted of the offenses charged, we have held that the petitioner is “automatically entitled to the expungement of his arrest record.” Commonwealth v. D.M., 548 Pa. 131, 695 A.2d 770, 772-73 (1997).
When a prosecution has been terminated without conviction or acquittal, for reasons such as nolle prosse of the charges or the defendant’s successful completion of an accelerated rehabilitative disposition program (“ARD”), then the trial court must “balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records.” Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa.1981)
To aid courts in applying the balancing test for expungement, the Wexler Court adopted the following nonexhaustive list of factors that the court should consider: These factors include [1] the strength of the Commonwealth’s case against the petitioner, [2] the reasons the Commonwealth gives for wishing to retain the records, [3] the petitioner’s age, criminal record, and employment history, [4] the length of time that has elapsed between the arrest and the petition to expunge, and [5] the specific adverse consequences the petitioner may endure should expunction be denied. Wexler, supra at 879 (citation omitted).
In applying the balancing test and considering the above factors, the court must analyze the particular, specific facts of the case before it. Id. at 880-81. The mere assertion by the Commonwealth of a general interest in maintaining accurate records of those accused of a crime does not outweigh an individual’s specific, substantial interest in clearing his or her record. Id. at 881-82. Commonwealth v. Moto, ___ Pa. ___, ___, 23 A.3d 989, 993-994 (2011).
Here, the official record in this matter consists of six incomplete, disorganized parts and appears to cover 19 arrests, 37 criminal action numbers, and approximately 228 charges as of May 10, 2010. As of that date, we estimate that the charges had terminated in four guilty pleas, four convictions, sixteen acquittals, five sustained demurrers, fourteen withdrawals, fifty-three dismissals, forty-four nolle prosequi, three transfers to family court, thirty transfers to juvenile division, and fifty-five held for court. The record does not indicate whether the nolle prossed and
withdrawn charges were based upon a lack of evidentiary support or whether the charges were dropped in exchange for a plea. Moreover, the record does not indicate why some charges were dismissed. Yet, the Commonwealth argues generally - and the trial court agrees - that none of the records should be expunged in light of Appellant’s extensive criminal record and the possibility that he might reoffend.
Substantively, and depending on the circumstances surrounding their termination, some of Appellant’s non-conviction arrest records may be eligible for expungement under the laws of Pennsylvania. However, we cannot make that determination based on the record at hand. Therefore, we remand to the trial court for “a clarification of the record as much as a clarification of the reasons for the trial court decision.” Roland, 871 A.2d at 222. Toward that purpose, “we cannot suggest strongly enough that all parties provide a comprehensive list of each criminal action number in question with the disposition of each charge contained therein.” Id. The trial court should then apply the Wexler factors, balancing Appellant’s right to be free from the harm attendant to maintenance of the arrest records against the Commonwealth’s interest in preserving such records, to determine in each particular case whether justice requires expungement. Waughtel, 999 A.2d at 625; A.M.R., 887 A.2d at 1268.
Individuals have the right, as an adjunct to due process, to seek expungement of their criminal records which can be effectuated through a hearing.[…] Punishment of the innocent is the clearest denial of life, liberty and property without due process of law. To remedy such a situation, an individual must be afforded a hearing to present his claim that he is entitled to an expungement - that is, because an innocent individual has a right to be free from unwarranted punishment, a court has the authority to remedy the denial of that right by ordering expungement of the arrest record. Maxwell, 737 A.2d at 1245 (citation omitted); accord Roland, 871 A.2d at 221
Having determined that the record at hand requires supplementation and clarification with regard to the circumstances surrounding Appellant’s non-conviction arrest records, we conclude that a hearing for this purpose is necessary. Accordingly, while making no determination as to whether expungement is warranted, we vacate the orders denying the motions for expungement and remand for a hearing on which non-conviction arrests records, if any, are eligible for application of the Wexler factors, and, based on application of the Wexler factors, which non-conviction arrests records, if any, should be expunged.
Wednesday, May 23, 2012
UC - voluntary quit - follow-the-spouse - newly-married couple
Pa. Gaming Control Board v. UCBR - Cmwlth. Court - May 23, 2012 (2-1 decision)
http://www.pacourts.us/OpPosting/Cwealth/out/927CD11_5-23-12.pdf
Facts - Claimant was last employed in August 2010, as a full-time administrative assistant for the Pennsylvania Gaming Control Board. She began dating her future spouse in May of 2008. In August of 2008, her future spouse enlisted in the United States Coast Guard, which sent him to Louisiana, where he was stationed and purchased a residence. In May, 2010, the claimant was married to her spouse. In August 2010, the claimant voluntarily resigned her employment to relocate to Louisiana to be with her spouse. The claimant and her spouse had an insurmountable commuting distance. The claimant and her spouse could not afford to maintain two residences.
The court rejected the Employer's argument that the follow-the-spouse rule does not apply at all, because Claimant’s husband relocated to Louisiana before the couple married. Employer’s argument ignored the fact that under Schechter v. UCBR, 491 A.2d 938 (Pa. Cmwlth. 1985), the "follow-the-spouse" doctrine is applicable to a situation where a claimant begins a marriage living apart from a spouse and later moves to be with the spouse, provided that necessitous and compelling reasons otherwise exist for the move. In such an instance, whether a spouse relocated prior to the marriage is irrelevant to the analysis. Here, it is similarly irrelevant that Claimant’s spouse relocated at a time prior to the couple’s marriage.
The Court also held that claimant showed a nececessitous and compelling reason to locate, under the Schlecter analysis. She showed an economic hardship, an insurmountable commuting distance, and that the move was for reasons beyond mere personal choice. Thus, although Claimant was not required to establish that her spouse’s relocation was beyond her control, she, nevertheless, still was required to and did establish that her own relocation to Louisiana following her marriage was for necessitous and compelling reasons and not merely due to personal preference.
The Board specifically found that an "insurmountable commuting distance" existed, the couple "could not afford to maintain two residences" (as Claimant was not maintaining a residence while she lived in Pennsylvania with her parents), and that Claimant’s spouse "was relocated by the United States Coast Guard to Louisiana where he was currently stationed and purchased a residence." Although Claimant’s testimony reveals that her decision to relocate to where her husband was currently stationed involved some personal preference, Claimant’s testimony revealed that the other factors identified above (i.e., economic hardship and insurmountable commuting distance) also played a role in her decision. Based upon those factors, it is apparent that Claimant acted reasonably and with good faith in making her decision to relocate. The Board, therefore, did not err in concluding that cause of a necessitous and compelling nature existed for Claimant to voluntarily terminate her employment.
http://www.pacourts.us/OpPosting/Cwealth/out/927CD11_5-23-12.pdf
Facts - Claimant was last employed in August 2010, as a full-time administrative assistant for the Pennsylvania Gaming Control Board. She began dating her future spouse in May of 2008. In August of 2008, her future spouse enlisted in the United States Coast Guard, which sent him to Louisiana, where he was stationed and purchased a residence. In May, 2010, the claimant was married to her spouse. In August 2010, the claimant voluntarily resigned her employment to relocate to Louisiana to be with her spouse. The claimant and her spouse had an insurmountable commuting distance. The claimant and her spouse could not afford to maintain two residences.
The court rejected the Employer's argument that the follow-the-spouse rule does not apply at all, because Claimant’s husband relocated to Louisiana before the couple married. Employer’s argument ignored the fact that under Schechter v. UCBR, 491 A.2d 938 (Pa. Cmwlth. 1985), the "follow-the-spouse" doctrine is applicable to a situation where a claimant begins a marriage living apart from a spouse and later moves to be with the spouse, provided that necessitous and compelling reasons otherwise exist for the move. In such an instance, whether a spouse relocated prior to the marriage is irrelevant to the analysis. Here, it is similarly irrelevant that Claimant’s spouse relocated at a time prior to the couple’s marriage.
The Court also held that claimant showed a nececessitous and compelling reason to locate, under the Schlecter analysis. She showed an economic hardship, an insurmountable commuting distance, and that the move was for reasons beyond mere personal choice. Thus, although Claimant was not required to establish that her spouse’s relocation was beyond her control, she, nevertheless, still was required to and did establish that her own relocation to Louisiana following her marriage was for necessitous and compelling reasons and not merely due to personal preference.
The Board specifically found that an "insurmountable commuting distance" existed, the couple "could not afford to maintain two residences" (as Claimant was not maintaining a residence while she lived in Pennsylvania with her parents), and that Claimant’s spouse "was relocated by the United States Coast Guard to Louisiana where he was currently stationed and purchased a residence." Although Claimant’s testimony reveals that her decision to relocate to where her husband was currently stationed involved some personal preference, Claimant’s testimony revealed that the other factors identified above (i.e., economic hardship and insurmountable commuting distance) also played a role in her decision. Based upon those factors, it is apparent that Claimant acted reasonably and with good faith in making her decision to relocate. The Board, therefore, did not err in concluding that cause of a necessitous and compelling nature existed for Claimant to voluntarily terminate her employment.
consumer - UDAP - deceptive or misleading conduct v. fraud - pleading
Bennett v. A.P. Masterpiece Homes - Superior Court - March 6, 2012
http://www.pacourts.us/OpPosting/Superior/out/a03006_12.pdf
Held: Plaintiff in a consumer protection case alleging misleading or deceptive conduct need not plead or prove elements of common law fraud, reversing a line of contrary Superior Court decisions.
The UTPCPL provides a private right of action for anyone who “suffers any ascertainable loss of money or property” as a result of an unlawful method, act or practice. 73 P.S. § 201-9.2(a).
Section 201-2(4) lists twenty enumerated practices which constitute actionable “unfair methods of competition” or “unfair or deceptive acts or practices.” 73 P.S. § 201-2(4)(i)-(xx). The UTPCPL also contains a catchall provision at 73 P.S. § 201-2(4)(xxi).
The pre-1996 catchall provision prohibited “fraudulent conduct” that created a likelihood of confusion or misunderstanding. 73 P.S. § 201-2(4)(xvii). In 1996, the General Assembly amended the UTPCPL and revised Section 201-2(4)(xxi) to add “deceptive conduct” as a prohibited practice. Act of Dec. 4, 1996, P.L. 906, No. 146, § 1 (effective Feb. 2, 1997). The current catchall provision proscribes “fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi) (emphasis added).
Under this "catchall" provision, a plaintiff does not need to allege or prove common law fraud. The court rejected its own decisions which continued to apply pre-amendment law that required pleading and proving the element of fraud, such as. Ross v. Foremost Ins. Co., 998 A.2d 648 (Pa.Super. 2010) (stating catchall section requires proof of common law fraud); Colaizzi v. Beck, 895 A.2d 36 (Pa.Super. 2006) (stating same); Booze v. Allstate Ins. Co., 750 A.2d 877 (Pa.Super. 2000), appeal denied, 564 Pa. 722, 766 A.2d 1242 (2000) (stating same); Skurnowicz v. Lucci, 798 A.2d 788 (Pa.Super. 2002) . Despite the addition of language regarding deceptive conduct, these post-amendment cases do not discuss the 1996 amendment in any detail, or consider what effect it might have on the catchall provision.
Commonwealth Court decisions - The Superior Court adopted the holding in the contrary line of case from Commonwealth Court. See, e.g., Commonwealth v. Percudani, 825 A.2d 743, 746-47 (Pa.Cmwlth. 2003) (holding 1996 Amendment to Section 201-2(4)(xxi) provides liability for deceptive conduct). These cases view the 1996 addition of “deceptive conduct” as substantively altering the catchall provision and allowing for liability based on the less restrictive standard of “deceptive conduct.” Com. ex rel. Corbett v. Manson, 903 A.2d 69, 74 (Pa.Cmwlth. 2006) (permitting catchall liability for deceptive conduct and rejecting Superior Court’s continued interpretation of Section 201-2(4)(xxi) as requiring proof of common law fraud). See also Com. v. TAP Pharmaceutical Products, Inc., ___ A.3d ___, 2011 WL 4056170 (Pa.Cmwlth. 2011) (stating Commonwealth Court has adopted “deceptive” standard under post-amendment catchall section of UTPCPL because language of 1996 amendment signaled approval of less restrictive pleading requirements); Pennsylvania Dept. of Banking v. NCAS of Delaware, LLC, 995 A.2d 422, 433 n.28 (Pa.Cmwlth. 2010) (applying “deceptive” standard for catchall provision and outlining split in interpretations of statute by Commonwealth and Superior Courts). In rejecting this Court’s postamendment interpretation of the catchall provision, the Commonwealth Court found Skurnowicz inapplicable to post-amendment cases because Skurnowicz did not acknowledge the 1996 amendment and relied on preamendment case law to hold the catchall section required proof of common law fraud.
Federal court decisions - Most Pennsylvania federal courts similarly concluded the 1996 amendment lessened the degree of proof required under the UTPCPL catchall provision. See Schnell v. Bank of New York Mellon, ___ F.Supp.2d ___, 2011 WL 5865966 (E.D.Pa. Nov. 22, 2011) (stating deceptive conduct is sufficient to satisfy catchall provision); Vassalotti v. Wells Fargo Bank, N.A., 732 F.Supp.2d 503, 510 n.7 (E.D.Pa. 2010) ; Wilson v. Parisi, 549 F.Supp.2d 637 (M.D.Pa. 2008); Chiles v. Ameriquest Mortg. Co., 551 F.Supp.2d 393, 398-99 (E.D.Pa. 2008). Like the Commonwealth Court, the federal courts examining this issue were persuaded by the revised statutory language of the catchall provision and our Supreme Court’s directive to read the UTPCPL broadly. Seldon v. Home Loan Services, Inc., 647 F.Supp.2d 451, 469 (E.D.Pa. 2009). Accord Genter v. Allstate Property and Cas. Ins. Co., 2011 WL 2533075 (W.D.Pa. June 24, 2011); Haines v. State Auto Property and Cas. Ins. Co., 2009 WL 1767534 (E.D.Pa. June 22, 2009); Flores v. Shapiro & Kreisman, 246 F.Supp.2d 427 (E.D.Pa. 2002); In re Patterson, 263 B.R. 82 (Bankr.E.D.Pa. 2001). Federal court generally declined to follow the Superior Court’s post-Amendment precedent because the Superior Court cases relied on pre-amendment interpretations of the catchall section without acknowledging the 1996 amendment. Seldon, supra at 469; Cohen v. Chicago Title Ins. Co., 242 F.R.D. 295 (E.D.Pa. 2007) (rejecting post-amendment cases from Superior Court because they rely on authority that interpreted preamendment catchall provision).
http://www.pacourts.us/OpPosting/Superior/out/a03006_12.pdf
Held: Plaintiff in a consumer protection case alleging misleading or deceptive conduct need not plead or prove elements of common law fraud, reversing a line of contrary Superior Court decisions.
The UTPCPL provides a private right of action for anyone who “suffers any ascertainable loss of money or property” as a result of an unlawful method, act or practice. 73 P.S. § 201-9.2(a).
Section 201-2(4) lists twenty enumerated practices which constitute actionable “unfair methods of competition” or “unfair or deceptive acts or practices.” 73 P.S. § 201-2(4)(i)-(xx). The UTPCPL also contains a catchall provision at 73 P.S. § 201-2(4)(xxi).
The pre-1996 catchall provision prohibited “fraudulent conduct” that created a likelihood of confusion or misunderstanding. 73 P.S. § 201-2(4)(xvii). In 1996, the General Assembly amended the UTPCPL and revised Section 201-2(4)(xxi) to add “deceptive conduct” as a prohibited practice. Act of Dec. 4, 1996, P.L. 906, No. 146, § 1 (effective Feb. 2, 1997). The current catchall provision proscribes “fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi) (emphasis added).
Under this "catchall" provision, a plaintiff does not need to allege or prove common law fraud. The court rejected its own decisions which continued to apply pre-amendment law that required pleading and proving the element of fraud, such as. Ross v. Foremost Ins. Co., 998 A.2d 648 (Pa.Super. 2010) (stating catchall section requires proof of common law fraud); Colaizzi v. Beck, 895 A.2d 36 (Pa.Super. 2006) (stating same); Booze v. Allstate Ins. Co., 750 A.2d 877 (Pa.Super. 2000), appeal denied, 564 Pa. 722, 766 A.2d 1242 (2000) (stating same); Skurnowicz v. Lucci, 798 A.2d 788 (Pa.Super. 2002) . Despite the addition of language regarding deceptive conduct, these post-amendment cases do not discuss the 1996 amendment in any detail, or consider what effect it might have on the catchall provision.
Commonwealth Court decisions - The Superior Court adopted the holding in the contrary line of case from Commonwealth Court. See, e.g., Commonwealth v. Percudani, 825 A.2d 743, 746-47 (Pa.Cmwlth. 2003) (holding 1996 Amendment to Section 201-2(4)(xxi) provides liability for deceptive conduct). These cases view the 1996 addition of “deceptive conduct” as substantively altering the catchall provision and allowing for liability based on the less restrictive standard of “deceptive conduct.” Com. ex rel. Corbett v. Manson, 903 A.2d 69, 74 (Pa.Cmwlth. 2006) (permitting catchall liability for deceptive conduct and rejecting Superior Court’s continued interpretation of Section 201-2(4)(xxi) as requiring proof of common law fraud). See also Com. v. TAP Pharmaceutical Products, Inc., ___ A.3d ___, 2011 WL 4056170 (Pa.Cmwlth. 2011) (stating Commonwealth Court has adopted “deceptive” standard under post-amendment catchall section of UTPCPL because language of 1996 amendment signaled approval of less restrictive pleading requirements); Pennsylvania Dept. of Banking v. NCAS of Delaware, LLC, 995 A.2d 422, 433 n.28 (Pa.Cmwlth. 2010) (applying “deceptive” standard for catchall provision and outlining split in interpretations of statute by Commonwealth and Superior Courts). In rejecting this Court’s postamendment interpretation of the catchall provision, the Commonwealth Court found Skurnowicz inapplicable to post-amendment cases because Skurnowicz did not acknowledge the 1996 amendment and relied on preamendment case law to hold the catchall section required proof of common law fraud.
Federal court decisions - Most Pennsylvania federal courts similarly concluded the 1996 amendment lessened the degree of proof required under the UTPCPL catchall provision. See Schnell v. Bank of New York Mellon, ___ F.Supp.2d ___, 2011 WL 5865966 (E.D.Pa. Nov. 22, 2011) (stating deceptive conduct is sufficient to satisfy catchall provision); Vassalotti v. Wells Fargo Bank, N.A., 732 F.Supp.2d 503, 510 n.7 (E.D.Pa. 2010) ; Wilson v. Parisi, 549 F.Supp.2d 637 (M.D.Pa. 2008); Chiles v. Ameriquest Mortg. Co., 551 F.Supp.2d 393, 398-99 (E.D.Pa. 2008). Like the Commonwealth Court, the federal courts examining this issue were persuaded by the revised statutory language of the catchall provision and our Supreme Court’s directive to read the UTPCPL broadly. Seldon v. Home Loan Services, Inc., 647 F.Supp.2d 451, 469 (E.D.Pa. 2009). Accord Genter v. Allstate Property and Cas. Ins. Co., 2011 WL 2533075 (W.D.Pa. June 24, 2011); Haines v. State Auto Property and Cas. Ins. Co., 2009 WL 1767534 (E.D.Pa. June 22, 2009); Flores v. Shapiro & Kreisman, 246 F.Supp.2d 427 (E.D.Pa. 2002); In re Patterson, 263 B.R. 82 (Bankr.E.D.Pa. 2001). Federal court generally declined to follow the Superior Court’s post-Amendment precedent because the Superior Court cases relied on pre-amendment interpretations of the catchall section without acknowledging the 1996 amendment. Seldon, supra at 469; Cohen v. Chicago Title Ins. Co., 242 F.R.D. 295 (E.D.Pa. 2007) (rejecting post-amendment cases from Superior Court because they rely on authority that interpreted preamendment catchall provision).
Monday, May 21, 2012
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.
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.
Friday, May 18, 2012
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).
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).
Thursday, May 03, 2012
Megan's Law - registration - homelessness
Commonwealth v. Demmitt - Pa. Super. May 2, 2012
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.
Monday, April 30, 2012
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).
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).
Wednesday, April 18, 2012
sec. 1983 - qualified immunity - private entity doing public function
http://www.supremecourt.gov/opinions/11pdf/10-1018.pdf
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.
(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.
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.
(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.
Monday, April 16, 2012
UC - willful misconduct - rule violation - proof of rule - threats to co-worker
Lewis v. UCBR - Cmwlth. Court - April 16, 2012
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.
Friday, April 13, 2012
UC - vol. quit, childcare; overpayment - non-fault
Favero v. UCBR - Cmwlth. Court - unpublished memorandum opinion
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
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.
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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.
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Thursday, April 12, 2012
UC - vol. quit - transportation problems - seeking help from employer
Baker v. UCBR - April 12, 2012 - Cmwlth. Court - unreported memorandum decision
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.
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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.
Thursday, April 05, 2012
federal courts - pleading - Iqbal, et al.
McClaren v. AIG - ED Pa. - March 2012
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.
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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.
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Wednesday, March 28, 2012
custody - relocation
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).
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).
Tuesday, March 27, 2012
Social Security Disability - Acquiescence Rulings - Index
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.
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
Monday, March 26, 2012
foreclosure - HAMP - no pre-emption of state law claims - 7th Cir.
Wigod v. Wells Fargo Ban - 7th Cir. - March 7, 2012
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.
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