Volk v. UCBR - Cmwlth. Court - July 26, 2012 (4-3)
http://www.pacourts.us/OpPosting/Cwealth/out/576CD11_7-26-12.pdf
A claimant who alleges that he did not get notice of the referee hearing must be afforded a hearing at which he has an opportunity to rebut the presumption of receipt of the notice.
The UCBR "may not rely solely upon the sufficiency of statements made in a petitioner’s appeal document or request to reopen the hearing, but must provide the petitioner against whom the presumption of receipt is being asserted the opportunity to submit evidence to rebut that presumption and to support the asserted reasons believed to be proper cause for not appearing at the hearing before the Board determines whether the petitioner had proper cause for not attending the hearing. Our holding is consistent with the Department’s regulation at 34 Pa. Code § 101.104, this Court’s decision in Coin Automatic Laundry, 447 A.2d 690, 691 (Pa. Cmwlth. 1982), and the principles of due process. To hold otherwise would effectively transform the presumption of receipt of mail into an irrebutable presumption. Therefore, we vacate the Board’s Order and remand for further proceedings consistent with this opinion.
Thursday, July 26, 2012
Monday, July 23, 2012
contracts - adhesion - exculpatory clause - recklessness - public policy
Tayar v. Camelback Ski Corp. - Pa. S.Ct. - July 18, 2012
Majority - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011mo.pdf (21 pp.) (Todd + 4)
Concur/dissent - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011codo1.pdf (2 pp.) (Eakin)
Concur/dissent - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011codo2.pdf (8 pp.) (Baer)
This is a case personal injury involving a ski resort. The plaintiff signed a contract containing a release from liability for the defendant.
The court held that it was against public policy for a defendant to be relieved of reckless conduct.
- Exculpatory clauses - contract of adhesion - Exculpatory provisions are generally disfavored. They are only enforceable where three conditions are met. First, the clause must not contravene public policy. Second, the contract must be between persons concerning their private affairs. Third, each party must be a free bargaining agent so the contract is not one of adhesion. Employers Liab. Assur. Corp. v. Greenville Business Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966).
- Public policy - Avoidance of contract terms on public policy grounds requires a showing of overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards. See Williams v. GEICO Gov’t Employees Ins. Co., __ Pa. __, 32 A.3d 1195 (2011). Public policy is more than a vague goal. It is be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term “public policy” is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy[.] . . . Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts . . . contrary to public policy. The courts must be content to await legislative action. Further, it is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring.
- A release for reckless conduct is against public policy - There is a spectrum of tortious conduct recklessness falls. At one end of that spectrum, exculpatory clauses that release a party from negligence generally are not against public policy, and are enforceable provided certain criteria are met. On the other end of the continuum are releases for intentional conduct. It is elementary and foundational to our system of criminal and tort law that parties are not permitted to intentionally harm one another. Accordingly, releases for intentional tortious conduct are likewise prohibited. Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence. This conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence, but aligns it more closely with intentional conduct. As a result, we are inclined to apply the same prohibition on releasing reckless conduct as we do for intentional conduct.
This view is supported by the conclusions of courts in other jurisdictions. The overwhelming majority of our sister states find releases for reckless conduct are against public policy, and federal courts purporting to apply Pennsylvania law have barred the enforcement of releases for reckless behavior.
Were we to sanction releases for reckless conduct, parties would escape liability for consciously disregarding substantial risks of harm to others; indeed, liability would be waivable for all conduct except where the actor specifically intended harm to occur. There is near unanimity across jurisdictions that such releases are unenforceable, as such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct. We therefore conclude that, even in this voluntarily recreational setting involving private parties, there is a dominant public policy against allowing exculpatory releases of reckless behavior, which encourages parties to adhere to minimal standards of care and safety.
Majority - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011mo.pdf (21 pp.) (Todd + 4)
Concur/dissent - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011codo1.pdf (2 pp.) (Eakin)
Concur/dissent - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011codo2.pdf (8 pp.) (Baer)
This is a case personal injury involving a ski resort. The plaintiff signed a contract containing a release from liability for the defendant.
The court held that it was against public policy for a defendant to be relieved of reckless conduct.
- Exculpatory clauses - contract of adhesion - Exculpatory provisions are generally disfavored. They are only enforceable where three conditions are met. First, the clause must not contravene public policy. Second, the contract must be between persons concerning their private affairs. Third, each party must be a free bargaining agent so the contract is not one of adhesion. Employers Liab. Assur. Corp. v. Greenville Business Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966).
- Public policy - Avoidance of contract terms on public policy grounds requires a showing of overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards. See Williams v. GEICO Gov’t Employees Ins. Co., __ Pa. __, 32 A.3d 1195 (2011). Public policy is more than a vague goal. It is be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term “public policy” is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy[.] . . . Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts . . . contrary to public policy. The courts must be content to await legislative action. Further, it is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring.
- A release for reckless conduct is against public policy - There is a spectrum of tortious conduct recklessness falls. At one end of that spectrum, exculpatory clauses that release a party from negligence generally are not against public policy, and are enforceable provided certain criteria are met. On the other end of the continuum are releases for intentional conduct. It is elementary and foundational to our system of criminal and tort law that parties are not permitted to intentionally harm one another. Accordingly, releases for intentional tortious conduct are likewise prohibited. Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence. This conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence, but aligns it more closely with intentional conduct. As a result, we are inclined to apply the same prohibition on releasing reckless conduct as we do for intentional conduct.
This view is supported by the conclusions of courts in other jurisdictions. The overwhelming majority of our sister states find releases for reckless conduct are against public policy, and federal courts purporting to apply Pennsylvania law have barred the enforcement of releases for reckless behavior.
Were we to sanction releases for reckless conduct, parties would escape liability for consciously disregarding substantial risks of harm to others; indeed, liability would be waivable for all conduct except where the actor specifically intended harm to occur. There is near unanimity across jurisdictions that such releases are unenforceable, as such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct. We therefore conclude that, even in this voluntarily recreational setting involving private parties, there is a dominant public policy against allowing exculpatory releases of reckless behavior, which encourages parties to adhere to minimal standards of care and safety.
Monday, July 16, 2012
Housing - Sec. 8 - conviction for possession of drug paraphernalia not disqualifying
Romagna v. Housing Authority of Indiana Co. - Cmwlth. Court -July 13, 2012 - unreported memorandum decision
http://www.pacourts.us/OpPosting/Cwealth/out/1648CD11_7-13-12.pdf
Conviction for possession of "drug paraphernalia" did not disqualify applicant from sec. 8 housing assistance, since such activity is not the basis for disqualification under any statutes or regulations.
HUD regulations give a housing authority power to deny entry to an applicant who has engaged in "[d]rug-related criminal activity." 24 C.F.R. §982.553(a)(2)(ii)(A)(1). This regulation defines "drug-related criminal activity" as the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug. 24 C.F.R. §5.100. It defines "drug" as any "controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. §802)." 24 C.F.R. §5.100.
This regulation parrots Section 8(f)(5) of the Housing and Community Development Act of 1974, 42 U.S.C. §1437f(f)(5), which also defines "drug-related criminal activity" as "the illegal manufacture, sale, distribution, use, or possession with intent to manufacture, sell, distribute, or use, of a controlled substance (as defined in Section 802 of title 21)." Title 21 states that a controlled substance is a "drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter."
Title 21 incorporates the meaning of "drug" set forth in the Food, Drug, and Cosmetic Act, 21 U.S.C. §321(g)(1), which states as follows: The term "drug" means (A) articles recognized in the official United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (B) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (C) articles (other than food) intended to affect the structure or any function of the body of man or other animals; and (D) articles intended for use as a component of any article specified in clause (A), (B), or (C)…. 21 U.S.C. §321(g)(1).
Neither the definition of "drug" nor "controlled substance" includes drug paraphernalia. The Housing Authority does not offer any authority for its view that these terms do include drug paraphernalia. It merely argues that the trial court’s analysis ignores the reality that possession of drug paraphernalia is a crime because it goes hand-in-hand with drug usage.
Under the Housing Authority’s own regulation, a drug-related criminal activity requires the actual use or possession of a drug, and it does not include possession of paraphernalia. Applicant’s drug paraphernalia conviction was not relevant to her eligibility for housing.
________________
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/1648CD11_7-13-12.pdf
Conviction for possession of "drug paraphernalia" did not disqualify applicant from sec. 8 housing assistance, since such activity is not the basis for disqualification under any statutes or regulations.
HUD regulations give a housing authority power to deny entry to an applicant who has engaged in "[d]rug-related criminal activity." 24 C.F.R. §982.553(a)(2)(ii)(A)(1). This regulation defines "drug-related criminal activity" as the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug. 24 C.F.R. §5.100. It defines "drug" as any "controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. §802)." 24 C.F.R. §5.100.
This regulation parrots Section 8(f)(5) of the Housing and Community Development Act of 1974, 42 U.S.C. §1437f(f)(5), which also defines "drug-related criminal activity" as "the illegal manufacture, sale, distribution, use, or possession with intent to manufacture, sell, distribute, or use, of a controlled substance (as defined in Section 802 of title 21)." Title 21 states that a controlled substance is a "drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter."
Title 21 incorporates the meaning of "drug" set forth in the Food, Drug, and Cosmetic Act, 21 U.S.C. §321(g)(1), which states as follows: The term "drug" means (A) articles recognized in the official United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (B) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (C) articles (other than food) intended to affect the structure or any function of the body of man or other animals; and (D) articles intended for use as a component of any article specified in clause (A), (B), or (C)…. 21 U.S.C. §321(g)(1).
Neither the definition of "drug" nor "controlled substance" includes drug paraphernalia. The Housing Authority does not offer any authority for its view that these terms do include drug paraphernalia. It merely argues that the trial court’s analysis ignores the reality that possession of drug paraphernalia is a crime because it goes hand-in-hand with drug usage.
Under the Housing Authority’s own regulation, a drug-related criminal activity requires the actual use or possession of a drug, and it does not include possession of paraphernalia. Applicant’s drug paraphernalia conviction was not relevant to her eligibility for housing.
________________
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.
Friday, July 13, 2012
Child abuse - expungement - clear and convincing
TT v. DPW - July 13, 2012 - Commonwealth Court
http://www.pacourts.us/OpPosting/Cwealth/out/1890CD11_7-13-12.pdf
Following its recent opinion in G.V. v. DPW, the court said....
Historically, in expungement proceedings, the Department has had the burden to show that the indicated report was accurate by substantial evidence. Bucks County CYS v. DPW, 616 A.2d 170 (Pa. Cmwlth. 1992). However, in the recently argued G.V. v. Department of Public Welfare, we held that the use of this standard to maintain statutorily-designated information from an indicated report on the ChildLine Registry did not adequately protect the rights of the accused and adopted the clear and convincing evidence standard for those proceedings.
Clear and convincing evidence is the highest burden in our civil law and requires that the fact-finder be able to come to clear conviction, without hesitancy, of the truth of the precise fact in issue. Suber v. Pennsylvania Commission on Crime and Delinquency, 885 A.2d 678, 682 (Pa. Cmwlth. 2005). To meet that standard, it necessarily means that the witnesses must be found to be credible, that the facts to which they have testified are remembered distinctly, and that their testimony is so clear, direct, weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Id.
Here, an order maintaining the indicated child abuse report summary on the ChildLine Registry against T.T., a Pennsylvania public school teacher, results in a significant impact not only on his personal and professional reputation, but also on his ability to continue practicing his profession. Such an impact demonstrates the need to apply the stricter clear and convincing evidence standard in expungement proceedings.
http://www.pacourts.us/OpPosting/Cwealth/out/1890CD11_7-13-12.pdf
Following its recent opinion in G.V. v. DPW, the court said....
Historically, in expungement proceedings, the Department has had the burden to show that the indicated report was accurate by substantial evidence. Bucks County CYS v. DPW, 616 A.2d 170 (Pa. Cmwlth. 1992). However, in the recently argued G.V. v. Department of Public Welfare, we held that the use of this standard to maintain statutorily-designated information from an indicated report on the ChildLine Registry did not adequately protect the rights of the accused and adopted the clear and convincing evidence standard for those proceedings.
Clear and convincing evidence is the highest burden in our civil law and requires that the fact-finder be able to come to clear conviction, without hesitancy, of the truth of the precise fact in issue. Suber v. Pennsylvania Commission on Crime and Delinquency, 885 A.2d 678, 682 (Pa. Cmwlth. 2005). To meet that standard, it necessarily means that the witnesses must be found to be credible, that the facts to which they have testified are remembered distinctly, and that their testimony is so clear, direct, weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Id.
Here, an order maintaining the indicated child abuse report summary on the ChildLine Registry against T.T., a Pennsylvania public school teacher, results in a significant impact not only on his personal and professional reputation, but also on his ability to continue practicing his profession. Such an impact demonstrates the need to apply the stricter clear and convincing evidence standard in expungement proceedings.
EAJA - disability - closely approaching advanced age - HALLEX v. binding case law
Jones v. Astrue - ED Pa - July 10, 2012
http://www.paed.uscourts.gov/documents/opinions/12D0666P.pdf
It is undisputed that if the ALJ had placed claimant -- 2 weeks from his 55th birthday -- in the higher category of “person of advanced age,” the grids would have directed a finding of disabled. However, despite Jones’s proximity to age fifty-five, the ALJ’s decision neither referred to a “borderline situation” nor cited 20 CFR §§ 404.1563(b) or 416.963(b). The decision did not consider which age category best described Jones’s ability to adjust to new work, but stated only that he was “a person closely approaching advanced age” based on his chronological age, contrary to the Third Circuit’s holding in Kane v. Heckler, where the Third Circuit held that the regulations require the ALJ to explicitly acknowledge a borderline situation and to determine which age category best describes the claimant’s ability to adjust to new work. 776 F.2d at 1132-34.
Following Kane, Jones’s proximity to age fifty-five at the time of the ALJ’s decision presented a borderline situation. Sections §§ 404.1563(b) and 416.963(b) require the Commissioner to consider the use of the higher age category in such situations. The ALJ was at least required to address the application of §§ 404.1563(b) and 416.963(b) to Jones’s case and explain why he used the lower age category.
The court rejected the Commissioner’s argument that the ALJ adequately considered Jones’s ability to adapt to new work by soliciting testimony from the VE. It noted that the ALJ never addressed the existence of a borderline situation during his colloquy with the VE, but instead asked the VE to assume at all times that Jones was categorized as a person closely approaching advanced age. The court also also held that HALLEX did not relieve the ALJ from explicitly recognizing the borderline situation as required by Kane because HALLEX is not legally binding.
http://www.paed.uscourts.gov/documents/opinions/12D0666P.pdf
It is undisputed that if the ALJ had placed claimant -- 2 weeks from his 55th birthday -- in the higher category of “person of advanced age,” the grids would have directed a finding of disabled. However, despite Jones’s proximity to age fifty-five, the ALJ’s decision neither referred to a “borderline situation” nor cited 20 CFR §§ 404.1563(b) or 416.963(b). The decision did not consider which age category best described Jones’s ability to adjust to new work, but stated only that he was “a person closely approaching advanced age” based on his chronological age, contrary to the Third Circuit’s holding in Kane v. Heckler, where the Third Circuit held that the regulations require the ALJ to explicitly acknowledge a borderline situation and to determine which age category best describes the claimant’s ability to adjust to new work. 776 F.2d at 1132-34.
Following Kane, Jones’s proximity to age fifty-five at the time of the ALJ’s decision presented a borderline situation. Sections §§ 404.1563(b) and 416.963(b) require the Commissioner to consider the use of the higher age category in such situations. The ALJ was at least required to address the application of §§ 404.1563(b) and 416.963(b) to Jones’s case and explain why he used the lower age category.
The court rejected the Commissioner’s argument that the ALJ adequately considered Jones’s ability to adapt to new work by soliciting testimony from the VE. It noted that the ALJ never addressed the existence of a borderline situation during his colloquy with the VE, but instead asked the VE to assume at all times that Jones was categorized as a person closely approaching advanced age. The court also also held that HALLEX did not relieve the ALJ from explicitly recognizing the borderline situation as required by Kane because HALLEX is not legally binding.
Thursday, July 12, 2012
child abuse - expungement - standard of proof - clear and convincing
G.V. v. DPW - Cmwlth. Court - July 12, 2012 (5-2)
http://www.pacourts.us/OpPosting/Cwealth/out/125CD11_7-12-12.pdf
The "clear and convincing" standard must apply to child abuse registry cases, since basing an indicated report on substantial evidence, as was done by the ALJ and as set forth in the Law, "does not adequately protect the rights of the accused perpetrator given the nature of the proceedings and the adverse consequences which flow from a finding of abuse and registration in the statewide Child[Line] Registry." J.S. v. Department of Public Welfare, 528 Pa. 243, 596 A.2d 1114 (1991). The standard of proof in expungement proceedings must be one of clear and convincing evidence.
Article I, Section 1 of the Pennsylvania Constitution provides: "All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting . . . reputation . . . ." Pa. Const. art. I, § 1. Because reputation is a protected fundamental interest under Article I, Section 1 of the Pennsylvania Constitution, the loss of reputation, the stigma associated with being named a child abuser, and the effect of such a determination on one's ability to gain employment all demand a higher standard of proof in order to satisfy due process.
The court applied a balancing test under R. v. Department of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994) and Mathews v. Eldridge, 424 U.S. 319, 335 (1976), using the following factors to be considered: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‟s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements will entail.
After weighing these factors, the Court held that "substantial evidence must support a determination of whether child abuse has occurred, but there must be clear and convincing evidence of child abuse to maintain statutorily-designated information from an indicated report on the ChildLine Registry."
http://www.pacourts.us/OpPosting/Cwealth/out/125CD11_7-12-12.pdf
The "clear and convincing" standard must apply to child abuse registry cases, since basing an indicated report on substantial evidence, as was done by the ALJ and as set forth in the Law, "does not adequately protect the rights of the accused perpetrator given the nature of the proceedings and the adverse consequences which flow from a finding of abuse and registration in the statewide Child[Line] Registry." J.S. v. Department of Public Welfare, 528 Pa. 243, 596 A.2d 1114 (1991). The standard of proof in expungement proceedings must be one of clear and convincing evidence.
Article I, Section 1 of the Pennsylvania Constitution provides: "All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting . . . reputation . . . ." Pa. Const. art. I, § 1. Because reputation is a protected fundamental interest under Article I, Section 1 of the Pennsylvania Constitution, the loss of reputation, the stigma associated with being named a child abuser, and the effect of such a determination on one's ability to gain employment all demand a higher standard of proof in order to satisfy due process.
The court applied a balancing test under R. v. Department of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994) and Mathews v. Eldridge, 424 U.S. 319, 335 (1976), using the following factors to be considered: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‟s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements will entail.
After weighing these factors, the Court held that "substantial evidence must support a determination of whether child abuse has occurred, but there must be clear and convincing evidence of child abuse to maintain statutorily-designated information from an indicated report on the ChildLine Registry."
convictions - expungement - underage drinking, simple assault
Commonwealth v. Furrer - Superior Court - July 11, 2012
http://www.pacourts.us/OpPosting/Superior/out/s39012_12.pdf
Appellate court affirmed refusal to expunge simple assault conviction, but reversed and ordered expungment of conviction for underage drinking.
Expungement of criminal records is governed by statute. See Hunt v. Pennsylvania State Police, 603 Pa. 156, 166, 983 A.2d 627, 633 (2009) (citing 18 Pa.C.S.A. § 9122). “The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth.
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,
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). Commonwealth v. Wallace, ___ A.3d ___, 2012 WL 1893526 at *2 (Pa. Super. filed May 25, 2012) (citing Commonwealth v. Moto, ___ Pa. ___, ___, 23 A.3d 989, 993-994 (2011)).
Here, the record establishes the following undisputed facts: (1) Appellant was convicted of a violation of section 6308 in the Court of Common Pleas of Westmoreland County; (2) at age 22, he petitioned the Court of Common Pleas of Westmoreland County, seeking expungement of, inter alia, the section 6308 conviction; and (3) he satisfied all terms and conditions of the sentence imposed for the section 6308 violation. Therefore, pursuant to the plain, mandatory language of 18 Pa.C.S.A. § 9122(a)(3) the trial court was required to expunge all criminal history record information related to the section 6308 conviction. In not doing so, the trial court abused its discretion.
Expungment of a simple assault conviction is not mandatory under sec. 9122 and does not fit the discretionary criteria under sec. 9122(b), since the appellant here is not over age 70, is still alive, and simple assault is not a summary offense.
http://www.pacourts.us/OpPosting/Superior/out/s39012_12.pdf
Appellate court affirmed refusal to expunge simple assault conviction, but reversed and ordered expungment of conviction for underage drinking.
Expungement of criminal records is governed by statute. See Hunt v. Pennsylvania State Police, 603 Pa. 156, 166, 983 A.2d 627, 633 (2009) (citing 18 Pa.C.S.A. § 9122). “The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth.
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,
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). Commonwealth v. Wallace, ___ A.3d ___, 2012 WL 1893526 at *2 (Pa. Super. filed May 25, 2012) (citing Commonwealth v. Moto, ___ Pa. ___, ___, 23 A.3d 989, 993-994 (2011)).
Here, the record establishes the following undisputed facts: (1) Appellant was convicted of a violation of section 6308 in the Court of Common Pleas of Westmoreland County; (2) at age 22, he petitioned the Court of Common Pleas of Westmoreland County, seeking expungement of, inter alia, the section 6308 conviction; and (3) he satisfied all terms and conditions of the sentence imposed for the section 6308 violation. Therefore, pursuant to the plain, mandatory language of 18 Pa.C.S.A. § 9122(a)(3) the trial court was required to expunge all criminal history record information related to the section 6308 conviction. In not doing so, the trial court abused its discretion.
Expungment of a simple assault conviction is not mandatory under sec. 9122 and does not fit the discretionary criteria under sec. 9122(b), since the appellant here is not over age 70, is still alive, and simple assault is not a summary offense.
Proof of service - mailbox rule
Szymanski v. Dotey and Jenkins - Superior Court - July 11, 2012
http://www.pacourts.us/OpPosting/Superior/out/a08017_12.pdf
The mailbox rule provides that “depositing in the post office a properly addressed, prepaid letter raises a natural presumption, founded in common experience, that it reached its destination by due course of mail.” Jenson v. McCorkell, 154 Pa. 323, 325, 26 A. 366, 367 (Pa. 1893). As the Pennsylvania Supreme Court noted: “The overwhelming weight of statistics clearly indicates that letters properly mailed and deposited in the post office are received by the addressees.” Meierdierck v. Miller, 394 Pa. 484, 487, 147 A.2d 406, 408 (Pa. 1959). Thus, “[e]vidence that a letter has been mailed will ordinarily be sufficient to permit a jury to find that the letter was in fact received by the party to whom it was addressed.” Shafer v. A.I.T.S., Inc., 428 A.2d 152, 156 (Pa. Super. 1981).
However, “evidence of actual mailing is not required.” Commonwealth Dep’t of Transp. v. Brayman Constr. Corp., 513 A.2d 562, 566 (Pa. Commw. 1986). The Superior Court has held that “when a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Christie v. Open Pantry Food Marts Inc. of Delaware Valley, 352 A.2d 165, 166-67 (Pa. Super. 1975).
To trigger the presumption of receipt, “the party who is seeking the benefit of the presumption must adduce evidentiary proof that the letter was signed in the usual course of business and placed in the regular place of mailing.” Geise v. Nationwide Life & Annuity Co. of America, 939 A.2d 409, 423 (Pa. Super. 2007); Shafer, 428 A.2d at 156. “A presumption that a letter was received cannot be based on a presumption that the letter was mailed. A presumption cannot be based on a presumption.” Geise, 939 A.2d at 423. Documentary evidence of mailing or testimony from the author that a document was mailed may establish the presumption of receipt. See Grasse, 606 A.2d at 546 (holding appellees met burden of proof of mailing by producing certified driving record which included document showing notice was mailed); cf. Meierdierck, 394 Pa. at 487, 147 A.2d at 408 (holding that “[w]here the use of the mails as a means of acceptance is authorized or implied from the surrounding circumstances, the acceptance is complete by posting the letter in normal mail channels, without more.”).
In this case, the evidence did not establish that the relevant notice (setting a trial date) was mailed, or that it was prepared in the ordinary course of business and placed in the regular place of mailing. See Christie, 352 A.2d at 166- 67. The evidence was only that the court administrator was the author of the notice. But she did not testify that she placed the notice in her office’s usual place for outgoing mail, nor did she testify that she or any other employee mailed it via any method of mailing. Pursuant to Brayman and Christie, the testimony did not constitute competent evidence of mailing because she offered no testimony or evidence that she had placed the notice in the office’s regular place of mailing or on the custom as to the mailing of such notices. See Brayman, 513 A.2d at 566; Christie, 352 A.2d at 166-67.
The testimony also failed to conform to the rule set forth in Meierdierck, that introducing testimony that the notice was mailed suffices to establish the mailbox rule’s presumption of receipt. See Meierdierck, 394 Pa. at 487, 147 A.2d at 408. Although the witness testified that she was the author of the notice, she did not testify that the notice was mailed. Commonwealth v. Thomas, 814 A.2d 754 (Pa. Super. 2002).
http://www.pacourts.us/OpPosting/Superior/out/a08017_12.pdf
The mailbox rule provides that “depositing in the post office a properly addressed, prepaid letter raises a natural presumption, founded in common experience, that it reached its destination by due course of mail.” Jenson v. McCorkell, 154 Pa. 323, 325, 26 A. 366, 367 (Pa. 1893). As the Pennsylvania Supreme Court noted: “The overwhelming weight of statistics clearly indicates that letters properly mailed and deposited in the post office are received by the addressees.” Meierdierck v. Miller, 394 Pa. 484, 487, 147 A.2d 406, 408 (Pa. 1959). Thus, “[e]vidence that a letter has been mailed will ordinarily be sufficient to permit a jury to find that the letter was in fact received by the party to whom it was addressed.” Shafer v. A.I.T.S., Inc., 428 A.2d 152, 156 (Pa. Super. 1981).
However, “evidence of actual mailing is not required.” Commonwealth Dep’t of Transp. v. Brayman Constr. Corp., 513 A.2d 562, 566 (Pa. Commw. 1986). The Superior Court has held that “when a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Christie v. Open Pantry Food Marts Inc. of Delaware Valley, 352 A.2d 165, 166-67 (Pa. Super. 1975).
To trigger the presumption of receipt, “the party who is seeking the benefit of the presumption must adduce evidentiary proof that the letter was signed in the usual course of business and placed in the regular place of mailing.” Geise v. Nationwide Life & Annuity Co. of America, 939 A.2d 409, 423 (Pa. Super. 2007); Shafer, 428 A.2d at 156. “A presumption that a letter was received cannot be based on a presumption that the letter was mailed. A presumption cannot be based on a presumption.” Geise, 939 A.2d at 423. Documentary evidence of mailing or testimony from the author that a document was mailed may establish the presumption of receipt. See Grasse, 606 A.2d at 546 (holding appellees met burden of proof of mailing by producing certified driving record which included document showing notice was mailed); cf. Meierdierck, 394 Pa. at 487, 147 A.2d at 408 (holding that “[w]here the use of the mails as a means of acceptance is authorized or implied from the surrounding circumstances, the acceptance is complete by posting the letter in normal mail channels, without more.”).
In this case, the evidence did not establish that the relevant notice (setting a trial date) was mailed, or that it was prepared in the ordinary course of business and placed in the regular place of mailing. See Christie, 352 A.2d at 166- 67. The evidence was only that the court administrator was the author of the notice. But she did not testify that she placed the notice in her office’s usual place for outgoing mail, nor did she testify that she or any other employee mailed it via any method of mailing. Pursuant to Brayman and Christie, the testimony did not constitute competent evidence of mailing because she offered no testimony or evidence that she had placed the notice in the office’s regular place of mailing or on the custom as to the mailing of such notices. See Brayman, 513 A.2d at 566; Christie, 352 A.2d at 166-67.
The testimony also failed to conform to the rule set forth in Meierdierck, that introducing testimony that the notice was mailed suffices to establish the mailbox rule’s presumption of receipt. See Meierdierck, 394 Pa. at 487, 147 A.2d at 408. Although the witness testified that she was the author of the notice, she did not testify that the notice was mailed. Commonwealth v. Thomas, 814 A.2d 754 (Pa. Super. 2002).
Wednesday, July 11, 2012
UC - willful misconduct - rule violation - awareness/proof of rule
Doswell v. UCGBR - July 11, 2012 - unreported memorandum opinion
http://www.pacourts.us/OpPosting/Cwealth/out/1691CD11_7-11-12.pdf
Claimant found eligible for benefits in case where ER claimed a rule violation. The ER's only evidence of the rule was a written handbook, which was vague. There was no evidence that the Claimant was aware of the unwritten rule she was accused of having violated.
Where the employee is discharged for violation of a work rule, the employer must show not only that the employee violated the rule but also that the employee was aware of the rule and that her actions in violating the rule were intentional or deliberate. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965 (Pa. Cmwlth. 2010). An employee cannot be found to have intentionally or deliberately violated a work rule for purposes of establishing willful misconduct absent evidence that she was aware of the rule in question. Tongel v. Unemployment Compensation Board of Review, 501 A.2d 716 (Pa. Cmwlth. 1985).
http://www.pacourts.us/OpPosting/Cwealth/out/1691CD11_7-11-12.pdf
Claimant found eligible for benefits in case where ER claimed a rule violation. The ER's only evidence of the rule was a written handbook, which was vague. There was no evidence that the Claimant was aware of the unwritten rule she was accused of having violated.
Where the employee is discharged for violation of a work rule, the employer must show not only that the employee violated the rule but also that the employee was aware of the rule and that her actions in violating the rule were intentional or deliberate. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965 (Pa. Cmwlth. 2010). An employee cannot be found to have intentionally or deliberately violated a work rule for purposes of establishing willful misconduct absent evidence that she was aware of the rule in question. Tongel v. Unemployment Compensation Board of Review, 501 A.2d 716 (Pa. Cmwlth. 1985).
UC - willful misconduct - poor attitude
Anderson v. UCBR - July 11, 2012 - unreported memorandum decision
http://www.pacourts.us/OpPosting/Cwealth/out/2379CD11_7-11-12.pdf
A vague finding that an employee was discharged for her poor attitude, without more, does not support a finding of willful misconduct. Unemployment Compensation Board of Review v. Dravage, 353 A.2d 88, 89 (Pa. Cmwlth. 1976). "An employee‟s poor attitude must be coupled with some specific conduct adverse to his employer‟s interest, or result in some identifiable detriment to the employer before a conclusion of willful misconduct is justified." Luketic v. UCBR, 386 A.2d 1045, 1047 (Pa. Cmwlth. 1978); see also UCBR v. Kullen, 346 A.2d 926, 927 (Pa. Cmwlth. 1975).
http://www.pacourts.us/OpPosting/Cwealth/out/2379CD11_7-11-12.pdf
A vague finding that an employee was discharged for her poor attitude, without more, does not support a finding of willful misconduct. Unemployment Compensation Board of Review v. Dravage, 353 A.2d 88, 89 (Pa. Cmwlth. 1976). "An employee‟s poor attitude must be coupled with some specific conduct adverse to his employer‟s interest, or result in some identifiable detriment to the employer before a conclusion of willful misconduct is justified." Luketic v. UCBR, 386 A.2d 1045, 1047 (Pa. Cmwlth. 1978); see also UCBR v. Kullen, 346 A.2d 926, 927 (Pa. Cmwlth. 1975).
UC - vol. quit - sexual harassment
JJ Stanley Inc. v. UCBR - July 11, 2012 - unreported memorandum decision
http://www.pacourts.us/OpPosting/Cwealth/out/2166CD11_7-11-12.pdf
"[C]onduct such as unwanted sexual comments and requests for sexual favors … go beyond what must be tolerated in the workplace." Mutual Pharmaceutical Co. v. Unemployment Compensation Board of Review, 654 A.2d 37, 40 (Pa. Cmwlth. 1994). It is therefore well established that sexual harassment can constitute a necessitous and compelling reason to leave employment. Collier Stone Co., 876 A.2d at 484; Borough of Coaldale, 745 A.2d at 731; Comitalo, 737 A.2d at 344.
Claimant gave Employer sufficient notice of the sexual harassment. A claimant is not obligated to file a written or formal complaint of harassment or report every incident of harassment. Comitalo, 737 A.2d at 344; Mutual Pharmaceutical Co., 654 A.2d at 40; Homan v. UCBR, 527 A.2d 1109, 1111 (Pa. Cmwlth. 1987). "The law does not require a claimant to complain of each and every incident of sexual harassment nor does it require a formal complaint be filed." Homan, 527 A.2d at 1111. Moreover, Claimant fully complied with Employer’s sexual harassment policy. Employer’s sexual harassment policy required only that Claimant notify her supervisor of the harassment; it did not require her to submit a written report or statement. Claimant reported the harassment to her supervisor, who was the person at Employer who was responsible for addressing sexual harassment complaints.
Claimant also did not refuse any reasonable accommodation which could have permitted her to continue her employment. Claimant’s unwillingness to continue to work in contact with her harasser was reasonable and does not show any lack of good faith effort to preserve employment. Gavlick Personnel Services, Inc. v. UCBR, 706 A.2d 406, 408 (Pa. Cmwlth. 1998)
"[T]here is a certain level of conduct that an employee will not be required to tolerate and … the Court will not place all responsibility upon an employee to resolve his or her work dilemma. Ultimately the employer bears the responsibility for eliminating harassment against employees in the workplace." Comitalo, 737 A.2d at 345.
__._,_.___
http://www.pacourts.us/OpPosting/Cwealth/out/2166CD11_7-11-12.pdf
"[C]onduct such as unwanted sexual comments and requests for sexual favors … go beyond what must be tolerated in the workplace." Mutual Pharmaceutical Co. v. Unemployment Compensation Board of Review, 654 A.2d 37, 40 (Pa. Cmwlth. 1994). It is therefore well established that sexual harassment can constitute a necessitous and compelling reason to leave employment. Collier Stone Co., 876 A.2d at 484; Borough of Coaldale, 745 A.2d at 731; Comitalo, 737 A.2d at 344.
Claimant gave Employer sufficient notice of the sexual harassment. A claimant is not obligated to file a written or formal complaint of harassment or report every incident of harassment. Comitalo, 737 A.2d at 344; Mutual Pharmaceutical Co., 654 A.2d at 40; Homan v. UCBR, 527 A.2d 1109, 1111 (Pa. Cmwlth. 1987). "The law does not require a claimant to complain of each and every incident of sexual harassment nor does it require a formal complaint be filed." Homan, 527 A.2d at 1111. Moreover, Claimant fully complied with Employer’s sexual harassment policy. Employer’s sexual harassment policy required only that Claimant notify her supervisor of the harassment; it did not require her to submit a written report or statement. Claimant reported the harassment to her supervisor, who was the person at Employer who was responsible for addressing sexual harassment complaints.
Claimant also did not refuse any reasonable accommodation which could have permitted her to continue her employment. Claimant’s unwillingness to continue to work in contact with her harasser was reasonable and does not show any lack of good faith effort to preserve employment. Gavlick Personnel Services, Inc. v. UCBR, 706 A.2d 406, 408 (Pa. Cmwlth. 1998)
"[T]here is a certain level of conduct that an employee will not be required to tolerate and … the Court will not place all responsibility upon an employee to resolve his or her work dilemma. Ultimately the employer bears the responsibility for eliminating harassment against employees in the workplace." Comitalo, 737 A.2d at 345.
__._,_.___
FDCPA - damages - money paid as result of lawsuit barred by SOL
Hamid v. Stock & Grimes, LLP - ED Pa. July 9, 2012
http://www.paed.uscourts.gov/documents/opinions/12D0655P.pdf
Money paid by plaintiff/consumer after defendant/collector filed lawsuit barred by applicable statute of limitations is properly recoverable under the Fair Debt Collection Practices Act.
It is clear from its underlying purpose that debtors may recover for violations of the FDCPA even if they have defaulted on a debt. It follows that debtors may recover the amount paid to settle a debt, if the debt collector violated the FDCPA in making the collection, as occurred here. Hamid paid some or all of the money she owed to Discover Bank only as a result of the untimely lawsuit filed by S&G on behalf of the Bank. If her payment was not a proper element of actual damages under the FDCPA, a debt collector could harass a debtor in violation of the FDCPA, as a result of that harassment collect the debt, and thereafter retain what it collected. We do not believe that Congress intended this result.
Other good language
[T]here is universal agreement among scholars, law enforcement officials, and even debt collectors that the number of persons who willfully refuse to pay debts is minuscule.'" Id. at 165-66 (quoting S. Rep. No. 93-382, at 2 (1977), reprinted in 1977 U.S.C.C.A.N. at 1696)). The court further stated that "Congress recognized that 'the vast majority of consumers who obtain credit fully intend to repay their debts. When default occurs, it is nearly always due to an unforeseen event such as unemployment, overextension, serious illness or marital difficulties or divorce.'" Id.
http://www.paed.uscourts.gov/documents/opinions/12D0655P.pdf
Money paid by plaintiff/consumer after defendant/collector filed lawsuit barred by applicable statute of limitations is properly recoverable under the Fair Debt Collection Practices Act.
It is clear from its underlying purpose that debtors may recover for violations of the FDCPA even if they have defaulted on a debt. It follows that debtors may recover the amount paid to settle a debt, if the debt collector violated the FDCPA in making the collection, as occurred here. Hamid paid some or all of the money she owed to Discover Bank only as a result of the untimely lawsuit filed by S&G on behalf of the Bank. If her payment was not a proper element of actual damages under the FDCPA, a debt collector could harass a debtor in violation of the FDCPA, as a result of that harassment collect the debt, and thereafter retain what it collected. We do not believe that Congress intended this result.
Other good language
[T]here is universal agreement among scholars, law enforcement officials, and even debt collectors that the number of persons who willfully refuse to pay debts is minuscule.'" Id. at 165-66 (quoting S. Rep. No. 93-382, at 2 (1977), reprinted in 1977 U.S.C.C.A.N. at 1696)). The court further stated that "Congress recognized that 'the vast majority of consumers who obtain credit fully intend to repay their debts. When default occurs, it is nearly always due to an unforeseen event such as unemployment, overextension, serious illness or marital difficulties or divorce.'" Id.
Sunday, July 08, 2012
UDAP - common law fraud not necessary - WD Pa.
Proof Of Common Law Fraud Not Needed To Maintain Suit Under "Catch-All" Section Of PA State Consumer Protection Law In Loan Servicer Jerk-Around Case
In a purported class action lawsuit filed in a U.S. District Court in Pittsburgh, Pennsylvania filed by two homeowners against a pair of mortgage servicers and a law firm/debt collector alleging conduct that is apparently now the standard for the servicing industry (jerk-arounds, conflicting communications, allegedly erroneous charges, etc.), a district judge recently granted the defendants' motion to dismiss several counts made against them, but allowed other counts to survive, thereby allowing the lawsuit to proceed.
Among the counts allowed to survive (specifically, count VII in the lawsuit) was one involving claims for violations under Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL").
The following excerpt is District Judge Mark R. Hornak's analysis of the applicable law and his assessment of the allegations in determining the the lawsuit should continue with regard to this count:
- The Unfair Trade Practices and Consumer Protection Law ("UTPCPL") is Pennsylvania's consumer protection law. Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 151 (Pa. Super. Ct. 2012). Its purpose is to prevent "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce," as defined by the act. Id.; 73 Pa. Cons. Stat. Ann. § 201-3 (West 2008). The Pennsylvania Supreme Court has stated that the UTPCPL should be liberally construed in order to effect its legislative goal of consumer protection. Bennett, 40 A.3d at 151 (citing Pennsylvania ex rel. Creamer v. Monumental Properties, Inc., 329 A.2d 812, 814 (Pa. 1974),
Homeowners rely upon two specific definitional provisions of the UTPCPL for their claims that PHS. Citi, and Seterus engaged in "unfair or deceptive acts or practices." § 201-2(4).
The first, Section 201-2(4)(v), is inapplicable to the facts as alleged by Homeowners. This section labels as "unfair or deceptive" the act of "[representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have." In other words, section 201-2(4)(v) applies to cases where a defendant misrepresents the characteristics of a product, such as suits involving false advertising. See, e.g., Haggart v. Endogastric Solutions, Inc., No. 10-0346, 2011 WL 466684, at *6 (W.D. Pa. Feb. 4, 2011) (noting that Pennsylvania law requires a plaintiff to allege, among other things, that the challenged advertisement is false for liability under section 201-2(4)(v) to attach); Glover, 2010 WL 5829248, at *9 (W.D. Pa Oct. 21, 2010) (dismissing claim against a mortgage servicer, because the servicer did not make any deceptive representations regarding the "characteristics, uses, or benefits" of a loan modification agreement); Meyer v. Cmty. Coll. of Beaver Cnty., 2 A.3d 499, 549 (Pa. 2010) (noting that sections 201-2(4)(v) through (vii) relate to claims of nonconforming goods or services). Homeowners' allegations that they paid improper reinstatement fees when in default does not equate to an allegation that PHS, Citi, or Seterus misrepresented the actual characteristics or benefits of the note and mortgage themselves. Glover, 2010 WL 5829248, at *9. Accordingly, to the extent that Homeowners bring claims against Defendants under section 201-2(4)(v) of the UTPCPL, that claim is dismissed with prejudice.
The second UTPCPL provision upon which Homeowners rely is the "catchall provision" of section 201-2(4)(xxi).
This section is expansive in that it encompasses a wide range of circumstances because a defendant need only engage in "any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding" for liability to attach. Id.
PHS argues that a heightened level of pleading akin to an allegation of common law fraud is required to bring an action pursuant to the "catch-all" provision, and Homeowners fail to meet this heightened threshold. See, e.g., Ross v. Foremost Ins. Co., 998 A.2d 648, 654 (Pa. Super. Ct. 2010) ("In order to establish a violation of the [UTPCPL's] catchall provision, a plaintiff must prove all of the elements of common-law fraud." (internal quotations omitted)). Similarly, Citi and Seterus argue, among other things, that Homeowners do not show that they relied upon any statements from either company. Justifiable reliance on a misrepresentation is an element of common law fraud, along with scienter, intention by the defendant to induce action, and damages to the plaintiff. Id.
Recent developments in Pennsylvania law convince this Court that meeting a heightened "fraud pleading" standard is not required to maintain a cause of action under the "catch-all" section of the UTPCPL.
In Bennett v. A. T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145 (Pa. Super. Ct. 2012), the Pennsylvania Superior Court analyzed two conflicting lines of cases on this issue of the appropriate pleading standard. One line of cases relied upon the pre-1996 language of section 201-2(4)(xxi) to conclude that litigants must allege enough facts to satisfy the elevated pleading standard necessary for common law fraud. Id. at 152.
However, the Bennett court noted that these cases had not considered the change to the "catch-all" provision's language in 1996, when the Pennsylvania legislature amended section 201-2(4)(xxi) to include the term "deceptive" in addition to the term "fraudulent." Id.
In order to give effect to all words in the statute as required by the Pennsylvania rules of statutory construction, the Bennett court adopted the reasoning of an opposing line of cases, which held that the inclusion of the word "deceptive" in section 201-2(4)(xxi) "lessened the degree of proof needed to maintain an action under the "catch-all" provision. Id. at 153-55.
The Superior Court concluded its reasoning by stating "we hold deceptive conduct which creates a likelihood of confusion or misunderstanding can constitute a cognizable claim under Section 201-2(4)(xxi)." Id. at 154-55.
Accordingly, conduct that is capable of being interpreted as "misleading" falls within the reach of the UTPCPL. See id. at 156 (holding that the lower court correctly instructed the jury when it stated that "misleading conduct" was actionable under the UTPCPL's catch-all provision). Having reviewed the Bennett court's analysis and the cases underpinning its decision, this Court is satisfied that section 201-2(4)(xxi) does not require a litigant to plead the elements of common law fraud.
Regarding the alleged deceptive conduct here, Homeowners have asserted sufficient facts at this stage in the proceedings to show that confusion or misunderstanding could reasonably arise from PHS's, Citi's, and Seterus's actions and that Homeowners were indeed misled by those actions.
Homeowners allege that Citi referred Homeowners' mortgage to foreclosure while, at the same time, the company was representing to Homeowners that there was the possibility of an alternate payment arrangement. The purpose of this arrangement was to allow Homeowners to avoid the very foreclosure proceedings Citi initiated. PHS and Seterus then sent Homeowners multiple conflicting reinstatement letters, which Homeowners allege contain misrepresentations as to the amount of their debt. Homeowners further claim that they were damaged when they remitted a payment that included intentionally mislabeled fees. These allegations allow Homeowners to maintain a cause of action against all three Defendants under the UTPCPL's "catch-all" section.
Citi and Seterus also advance another argument in support of their Motions to Dismiss regarding the UTPCPL. They claim that Homeowners lack standing to sue them under the UTPCPL, because neither Citi nor Seterus were original signatories to the note and mortgage, meaning that Homeowners cannot allege that they purchased any goods or services from either Citi or Seterus.
However, the UTPCPL's reach is expansive, and, to that end, the Third Circuit in In re Smith, 866 F.2d 576 (3d Cir. 1989) emphasized that a district court should not limit the UTPCPL's application to only those circumstances where the unfair or deceptive conduct induced the consumer to make the initial purchase. Id. at 583.
Such a reading of the statute "would insulate all kinds of practices from the [UTPCPL], such as debt collection, which occur after entering an agreement and which were not a basis for the original agreement." Id. (emphasis added). Similarly, liability can be imposed upon a mortgage assignee under the UTPCPL providing the plaintiff advances specific allegations of wrongdoing against the assignee, not simply against the original lender. See Murphy v. F.D.I.C., 408 Fed. App'x. 609, 611 (3d Cir. 2010) (emphasizing the UTPCPL does not impose liability on a loan assignee absent claims of an assignee's wrongdoing). Homeowners assert such allegations directly against both Citi and Seterus here. Therefore, the fact that Citi and Seterus were not parties to the original mortgage is not dispositive.
For the foregoing reasons, all Defendants' Motions to Dismiss as they apply to Homeowners' claims under the UTPCPL are denied.
For Judge Hornak's ruling, see Trunzo v. Citi Mortgage, No. 2:11-cv-01124 (W.D. Pa. June 25, 2012).
Editor's Note: Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL") is that state's consumer protection law that generally prohibits unfair and deceptive practices ("UDAP") in trade and commerce within the state. For similar UDAP statutes in other states, see Consumer Protection In The States: A 50-State Report on Unfair and Deceptive Acts and Practices Statutes.
Friday, June 29, 2012
FLSA - joint employer
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. . . .
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. . . .
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.
----------------
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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