Blue Comet Diner v. PHRC - Commonwealth Court - July 28, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/465CD05_7-28-06.pdf
In a 5-2 decision, the court held that a predetermination Settlement Agreement could not be enforced by the Pennsylvania Human Relations Commission without the PHRC having held a hearing and having made a finding that the employer had actually violated the PHRA, 43 P.S. 951 et seq.
The dissents argued that there was a valid regulatory procedure under 16 Pa. Code sec, 42.73 to cover this situation and that the majority's disposition would "adversely impact upon the Commission's ability to resolved discrimination complaints through conciliation and persuasion, " in addition to contravening the stated purposed of the statute. In addition, the dissents objected to the fact that the court had raised this issue sua sponte, arguing that it had been waived by the appellant, who had not raised it in proceedings below, and that the issue was not jurisdictional, citing Mechensky v. PHRC, 578 A.2d 589 (Pa. Cmwlth. 1990) and Reidel v. HRC of Reading, 739 A.2d 121 (Pa. 1999).
Reversed and remanded, http://www.aopc.org/OpPosting/Supreme/out/878mal2006.pdf - September 5, 2007, based on Reidel v. HRC of City of Reading, 739 A.2d 121 (Pa. 1999)
Monday, August 14, 2006
welfare - MH/MR- PFDS waiver
Gray v. DPW - Commonwealth Court - July 28, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/119CD06_7-28-06.pdf
The court upheld the denial of a mother's petition to pay her for her care of her 21-year-old moderately mentally retarded son under the Personal Family Direct Support (PFDS) Waiver Program.
The PFDS program was developed to enhance services to people with mental retardation living at home with their families or in their own homes, provided that, in the case of people over 18, there was no "qualified provider who is not a family member...available" to provide services or only at "an extraorginarily higher cost" than the fee negotiated with a family member.
The court held that there was substantial evidence to support DPW's finding that there were qualified non-family providers in the community capable to giving services to the son, at a reasonable cost.
Mother's claim that the regulation only applied to children under 18 was not considered, because it was only raised for the first time on appeal, and not during administrative proceedings.
http://www.courts.state.pa.us/OpPosting/CWealth/out/119CD06_7-28-06.pdf
The court upheld the denial of a mother's petition to pay her for her care of her 21-year-old moderately mentally retarded son under the Personal Family Direct Support (PFDS) Waiver Program.
The PFDS program was developed to enhance services to people with mental retardation living at home with their families or in their own homes, provided that, in the case of people over 18, there was no "qualified provider who is not a family member...available" to provide services or only at "an extraorginarily higher cost" than the fee negotiated with a family member.
The court held that there was substantial evidence to support DPW's finding that there were qualified non-family providers in the community capable to giving services to the son, at a reasonable cost.
Mother's claim that the regulation only applied to children under 18 was not considered, because it was only raised for the first time on appeal, and not during administrative proceedings.
custody - relocation - children's best interest
Fuehrer v. Fuehrer - Superior Court - August 2, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a19007_06.pdf
The Superior Court affirmed the grant of primary custody of the parents' two daughters, ages 6 and 9, to mother/appellee but reversed the trial court's allowance of mother's petition for relocation to the Netherlands.
Applying the Gruber factors set out in 583 A.2d 434 (Pa. Super. 1990), the court held that the proposed move to the Netherlands would only benefit the mother's potential love interest with a man she had met in an internet chat room. Although the trial court emphasized the mother's lack of good judgment, it did not consider whether the move would be in the children's best interest, ignoring the father's good relationship with the children and the fact that they were flourishing in their present environment. The court said that children who are very young need frequent contact with the non-custodial parent and that months without physical contact would disrupt the parent-child relationship.
The court contrasted the case of Goldfarb v. Goldfarb, 861 A2d 340, in which mother's petition to relocated to Israel was granted, since family had lived in Israel before, they would be returning to familiar culture, mother had extensive family support there, and 2 of 3 children had been born there.
http://www.courts.state.pa.us/OpPosting/Superior/out/a19007_06.pdf
The Superior Court affirmed the grant of primary custody of the parents' two daughters, ages 6 and 9, to mother/appellee but reversed the trial court's allowance of mother's petition for relocation to the Netherlands.
Applying the Gruber factors set out in 583 A.2d 434 (Pa. Super. 1990), the court held that the proposed move to the Netherlands would only benefit the mother's potential love interest with a man she had met in an internet chat room. Although the trial court emphasized the mother's lack of good judgment, it did not consider whether the move would be in the children's best interest, ignoring the father's good relationship with the children and the fact that they were flourishing in their present environment. The court said that children who are very young need frequent contact with the non-custodial parent and that months without physical contact would disrupt the parent-child relationship.
The court contrasted the case of Goldfarb v. Goldfarb, 861 A2d 340, in which mother's petition to relocated to Israel was granted, since family had lived in Israel before, they would be returning to familiar culture, mother had extensive family support there, and 2 of 3 children had been born there.
contracts - forfeiture - subtantial performance
Atlantic LB, Inc. v. Vrbicek - Superior Court - August 4, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a21008_06.pdf
Given the terms of the lease in this case, the commercial tenant was held to be not in default and entitled to exercise an option to buy. The trial court "properly utilized the doctrine of substantal performance...to avoid an unacceptable forfeiture."
The lease had a "time is of the essense" clause, and the tenants were chronically late in paying rent over several extended periods. However, under terms of the lease, "nonpayment alone was insufficient...to constitute an automatic default." The lease had a specific term stating that continued failure to perform for 10 days after written notice of nonperformance was given was a default. In each of two instances, the tenants cured the rent defaults within the 10 days periods and no rent was owing at the time the landlord brought the case.
Although "Pennsylvania law permits forfeiture of a tenant's rights for non-payment of rent...[a] court should not enforce forfeiture 'when the contract has been carried out or its literal fulfillment has been prevented by oversight or uncontrollable circumstances." The "doctrine of substantial performance has been created as an instrument of justice intended to avoid forfeiture because of technical, inadvertent or unimportant questions....The doctrine is 'intended for the protection and relief of those who have faithfully and honestly endeavored to perform their contracts in all material and substantial particulars."
The court stressed that the doctrine was applicable in this case "because of the language of the agreement as written....[T]his decision is not intended to be used indiscriminately as authority in all commercial leases for nonpayment of sums due. To the contrary, we emphasise the importance of careful attention to how these agreements are drafted and to the terms of the agreements as drafted" -- noting again that in this case, default was defined as failure to cure within 10 days of notice of default.
http://www.courts.state.pa.us/OpPosting/Superior/out/a21008_06.pdf
Given the terms of the lease in this case, the commercial tenant was held to be not in default and entitled to exercise an option to buy. The trial court "properly utilized the doctrine of substantal performance...to avoid an unacceptable forfeiture."
The lease had a "time is of the essense" clause, and the tenants were chronically late in paying rent over several extended periods. However, under terms of the lease, "nonpayment alone was insufficient...to constitute an automatic default." The lease had a specific term stating that continued failure to perform for 10 days after written notice of nonperformance was given was a default. In each of two instances, the tenants cured the rent defaults within the 10 days periods and no rent was owing at the time the landlord brought the case.
Although "Pennsylvania law permits forfeiture of a tenant's rights for non-payment of rent...[a] court should not enforce forfeiture 'when the contract has been carried out or its literal fulfillment has been prevented by oversight or uncontrollable circumstances." The "doctrine of substantial performance has been created as an instrument of justice intended to avoid forfeiture because of technical, inadvertent or unimportant questions....The doctrine is 'intended for the protection and relief of those who have faithfully and honestly endeavored to perform their contracts in all material and substantial particulars."
The court stressed that the doctrine was applicable in this case "because of the language of the agreement as written....[T]his decision is not intended to be used indiscriminately as authority in all commercial leases for nonpayment of sums due. To the contrary, we emphasise the importance of careful attention to how these agreements are drafted and to the terms of the agreements as drafted" -- noting again that in this case, default was defined as failure to cure within 10 days of notice of default.
fictitious names - capacity to sue
Stash and Sons v. New Hollard Credit Company - Superior Court - August 2, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/s24042_06.pdf
"[T]hose who deal with an unregistered party and accept the benefits of business transactions, having full knowledge of the party's true identify notwithstanding the fictious name, are estopped to deny the party's capacity to sue...If such a person knows with who he is dealing and is not deceived, he cannot assert the lack of capacity to sue under the Fictitious Names Act (FNA)," 54 Pa. C.S. 331.
The FNA says that an entity which has failed to register its fictitious name "shall not be permitted to maintain any action in a tribunal" in Pennsylvania and that, before such an entity can institute a lawsuit, it must register the name and pay a fine. The court held that this provision was penal in nature and should not be extended beyond the purposes for which it was enacted -- a) to protect people giving credit in reliance on the fictitious name and b) to establish the identities of the people operating the business. In this case, it was clear that all of this information was known, thus estopping the appellant/defendant from claiming harm and contesting the appellee/plaintiff's capacity to sue.
http://www.courts.state.pa.us/OpPosting/Superior/out/s24042_06.pdf
"[T]hose who deal with an unregistered party and accept the benefits of business transactions, having full knowledge of the party's true identify notwithstanding the fictious name, are estopped to deny the party's capacity to sue...If such a person knows with who he is dealing and is not deceived, he cannot assert the lack of capacity to sue under the Fictitious Names Act (FNA)," 54 Pa. C.S. 331.
The FNA says that an entity which has failed to register its fictitious name "shall not be permitted to maintain any action in a tribunal" in Pennsylvania and that, before such an entity can institute a lawsuit, it must register the name and pay a fine. The court held that this provision was penal in nature and should not be extended beyond the purposes for which it was enacted -- a) to protect people giving credit in reliance on the fictitious name and b) to establish the identities of the people operating the business. In this case, it was clear that all of this information was known, thus estopping the appellant/defendant from claiming harm and contesting the appellee/plaintiff's capacity to sue.
Friday, August 11, 2006
Pennsylvania Bulletin of August 12, 2006
The link http://www.pabulletin.com/secure/data/vol36/36-32/index.html
- courts- appellate rules - proposed - interlocutory appeals as of right - PRAP 311
http://www.pabulletin.com/secure/data/vol36/36-32/1532.html
- courts - civil rules - proposed - foreclosure - mortgages on both personal/real property - UCC 9604(a) - http://www.pabulletin.com/secure/data/vol36/36-32/1533.html
- courts - civil rules - proposed - videotape depositions - Rule 4017.1
http://www.pabulletin.com/secure/data/vol36/36-32/1534.html
- Indpt. Reg. Review Commn. - notice of comments - child care facilities
http://www.pabulletin.com/secure/data/vol36/36-32/1558.html
- courts- appellate rules - proposed - interlocutory appeals as of right - PRAP 311
http://www.pabulletin.com/secure/data/vol36/36-32/1532.html
- courts - civil rules - proposed - foreclosure - mortgages on both personal/real property - UCC 9604(a) - http://www.pabulletin.com/secure/data/vol36/36-32/1533.html
- courts - civil rules - proposed - videotape depositions - Rule 4017.1
http://www.pabulletin.com/secure/data/vol36/36-32/1534.html
- Indpt. Reg. Review Commn. - notice of comments - child care facilities
http://www.pabulletin.com/secure/data/vol36/36-32/1558.html
Pennsylvania Bulletin of August 5, 2006
The link http://www.pabulletin.com/secure/data/vol36/36-31/index.html
- court rules - local - Philadelphia - transcripts http://www.pabulletin.com/secure/data/vol36/36-31/1486.html
- education - child care curriculum grants
http://www.pabulletin.com/secure/data/vol36/36-31/1498.html
- health - children- safe sleep promotion - mini-grants http://www.pabulletin.com/secure/data/vol36/36-31/1508.html
- Governor - directives - Directives Management System http://www.pabulletin.com/secure/data/vol36/36-31/1496.html
- PUC- passenger services and property/household goods carriers http://www.pabulletin.com/secure/data/vol36/36-31/1493.html
- PUC- biennial report concerning Chapter 14 http://www.pabulletin.com/secure/data/vol36/36-31/1527.html
- court rules - local - Philadelphia - transcripts http://www.pabulletin.com/secure/data/vol36/36-31/1486.html
- education - child care curriculum grants
http://www.pabulletin.com/secure/data/vol36/36-31/1498.html
- health - children- safe sleep promotion - mini-grants http://www.pabulletin.com/secure/data/vol36/36-31/1508.html
- Governor - directives - Directives Management System http://www.pabulletin.com/secure/data/vol36/36-31/1496.html
- PUC- passenger services and property/household goods carriers http://www.pabulletin.com/secure/data/vol36/36-31/1493.html
- PUC- biennial report concerning Chapter 14 http://www.pabulletin.com/secure/data/vol36/36-31/1527.html
Monday, July 31, 2006
paternity by estoppel
Moyer v. Gresh - Superior Court - July 26, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a18031_06.pdf
Superior Court affirmed the trial court's dismissal of the natural father (NF) of a 16 year-old boy. MM, as a party in plaintiff/appellee's case asking for primary custody, on the grounds that plaintiff's paternity of MM was established by estoppel.
Plaintiff "was the only father that MM knew during the first nine years of his life" and continued to be actively involved (including carrying health insurance for the child) after Plaintiff and MM's natural mother separated and she married the child's biological father. MM refers to Plaintiff as his father when talking to friends and calls both father in the presence of each. MM said that he wants to live primarily with Plaintiff. The trial court resolved credibility issues in favor of Plaintiff.
The court applied the doctrine of paternity by estoppel (PBE) and upheld the dismissal NF as a party, even though DNA tests established NF as MM's natural father. Under the doctrine of PBE, DNA and blood tests "may be irrelevant." The doctrine is "designed to protect the best interests of minor children by allowing them to be secure in knowing who their parents are....It is grounded in a fairness principle that those who mislead a child as to the identity of his natural father cannot hen turn around and disprove their own fiction to the detriment of the child." The court found that this result was "also in accord with MM's best interests....MM considers Plaintiff to be his father and wishes to live primarily with him."
Here, appellant NF "voluntarily relinquished his parents rights and duties to Plaintiff during the first nine years of MM's life, and allowed Plaintiff to continue supporting MM when MM was living with" natural mother and NF, the appellants
http://www.courts.state.pa.us/OpPosting/Superior/out/a18031_06.pdf
Superior Court affirmed the trial court's dismissal of the natural father (NF) of a 16 year-old boy. MM, as a party in plaintiff/appellee's case asking for primary custody, on the grounds that plaintiff's paternity of MM was established by estoppel.
Plaintiff "was the only father that MM knew during the first nine years of his life" and continued to be actively involved (including carrying health insurance for the child) after Plaintiff and MM's natural mother separated and she married the child's biological father. MM refers to Plaintiff as his father when talking to friends and calls both father in the presence of each. MM said that he wants to live primarily with Plaintiff. The trial court resolved credibility issues in favor of Plaintiff.
The court applied the doctrine of paternity by estoppel (PBE) and upheld the dismissal NF as a party, even though DNA tests established NF as MM's natural father. Under the doctrine of PBE, DNA and blood tests "may be irrelevant." The doctrine is "designed to protect the best interests of minor children by allowing them to be secure in knowing who their parents are....It is grounded in a fairness principle that those who mislead a child as to the identity of his natural father cannot hen turn around and disprove their own fiction to the detriment of the child." The court found that this result was "also in accord with MM's best interests....MM considers Plaintiff to be his father and wishes to live primarily with him."
Here, appellant NF "voluntarily relinquished his parents rights and duties to Plaintiff during the first nine years of MM's life, and allowed Plaintiff to continue supporting MM when MM was living with" natural mother and NF, the appellants
Friday, July 28, 2006
Pennsylvania Bulletin of July 29, 2006
Link to index http://www.pabulletin.com/secure/data/vol36/36-30/index.html
- mortgages - mortgage loans - conduct of licensees - proposed rulemaking - public hearing Sept. 12 http://www.pabulletin.com/secure/data/vol36/36-30/1446.html
- Rules of Evidence - Rule 104 - prelim. questions - proposed revision of comment - comments due 9-6-06 - http://www.pabulletin.com/secure/data/vol36/36-30/1433.html
- Rules of Evidence - Rules 601- competency - proposed revision of comment - comments due 9-5-06 http://www.pabulletin.com/secure/data/vol36/36-30/1434.html
- welfare - MA - fee schedule revisions
http://www.pabulletin.com/secure/data/vol36/36-30/1461.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-30/1432.html
- MDJ rules - appeal - correction to note to Rule 1002 - LT cases - $ v. possession http://www.pabulletin.com/secure/data/vol36/36-30/1438.html
- MDJ rules - proposed amendments - comments due September 1, 2006
(1) IFP - (2) execution of $ judgments - (3) time, method of appeal (4) bond for appeal
(5) services of papers on appeal (6) striking appeal (7) procedure on appeal (8) supersedeas
http://www.pabulletin.com/secure/data/vol36/36-30/1437.html
- Rules of Civil Procedure - Rule 1910.1 - support - Act 43 of 2005http://www.pabulletin.com/secure/data/vol36/36-30/1436.html
- Rules of Civil Procedure - arbitration - consumer credit transactionshttp://www.pabulletin.com/secure/data/vol36/36-30/1435.html
- mortgages - mortgage loans - conduct of licensees - proposed rulemaking - public hearing Sept. 12 http://www.pabulletin.com/secure/data/vol36/36-30/1446.html
- Rules of Evidence - Rule 104 - prelim. questions - proposed revision of comment - comments due 9-6-06 - http://www.pabulletin.com/secure/data/vol36/36-30/1433.html
- Rules of Evidence - Rules 601- competency - proposed revision of comment - comments due 9-5-06 http://www.pabulletin.com/secure/data/vol36/36-30/1434.html
- welfare - MA - fee schedule revisions
http://www.pabulletin.com/secure/data/vol36/36-30/1461.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-30/1432.html
- MDJ rules - appeal - correction to note to Rule 1002 - LT cases - $ v. possession http://www.pabulletin.com/secure/data/vol36/36-30/1438.html
- MDJ rules - proposed amendments - comments due September 1, 2006
(1) IFP - (2) execution of $ judgments - (3) time, method of appeal (4) bond for appeal
(5) services of papers on appeal (6) striking appeal (7) procedure on appeal (8) supersedeas
http://www.pabulletin.com/secure/data/vol36/36-30/1437.html
- Rules of Civil Procedure - Rule 1910.1 - support - Act 43 of 2005http://www.pabulletin.com/secure/data/vol36/36-30/1436.html
- Rules of Civil Procedure - arbitration - consumer credit transactionshttp://www.pabulletin.com/secure/data/vol36/36-30/1435.html
Thursday, July 27, 2006
employment - health insurance - COBRA - adequate notice
Mershon v. Woodburne Family Practice - ED Pa - July 19, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0895P.pdf
Plaintiff had problems during her pregnancy. The employer decided that she had abandoned her job and sent her a COBRA notice, 29 USC sec. 1165, in early November saying that her coverage expired at the end of November.
Plaintiff sued for a) Pregnancy Discrimination, 42 USC 2000e et seq., b) discrimination under the state PHRA. 42 Pa. C.S. 951 et seq, and c) the COBRA statute.
The court granted the motion to dismiss the claims under the pregnancy and state PHRA laws, holding that Plaintiff had failed to allege that the employer treated pregnancy-related absences were treated any differently from other medical absences.
However, the court denied the motion to dismiss the COBRA claim. The statute requires that an employee have at least 60 days in which to make a COBRA decision to elect continued coverage, 29 USC sec. 1165. The 60 days had not expired when Plaintiff learned of her dismissal. The statute requires a continuation of coverage from the date of the qualifying event -- whether her failure return to work or her dismissal by the employer -- through the election period, 29 USC 1161. The employer's premature cancellation of coverage in this case -- more than a month before it should have done so -- resulted in uninsured medical expenses and costs to the state in the form of MA benefits. Branch v. G. Bernd Co, 955 F2d 1574 (1582 (5th Cir. 1992), holding the employer liable for the employee's medical expenses.
http://www.paed.uscourts.gov/documents/opinions/06D0895P.pdf
Plaintiff had problems during her pregnancy. The employer decided that she had abandoned her job and sent her a COBRA notice, 29 USC sec. 1165, in early November saying that her coverage expired at the end of November.
Plaintiff sued for a) Pregnancy Discrimination, 42 USC 2000e et seq., b) discrimination under the state PHRA. 42 Pa. C.S. 951 et seq, and c) the COBRA statute.
The court granted the motion to dismiss the claims under the pregnancy and state PHRA laws, holding that Plaintiff had failed to allege that the employer treated pregnancy-related absences were treated any differently from other medical absences.
However, the court denied the motion to dismiss the COBRA claim. The statute requires that an employee have at least 60 days in which to make a COBRA decision to elect continued coverage, 29 USC sec. 1165. The 60 days had not expired when Plaintiff learned of her dismissal. The statute requires a continuation of coverage from the date of the qualifying event -- whether her failure return to work or her dismissal by the employer -- through the election period, 29 USC 1161. The employer's premature cancellation of coverage in this case -- more than a month before it should have done so -- resulted in uninsured medical expenses and costs to the state in the form of MA benefits. Branch v. G. Bernd Co, 955 F2d 1574 (1582 (5th Cir. 1992), holding the employer liable for the employee's medical expenses.
Wednesday, July 26, 2006
adoption - standing of aunt/uncle - agency consent to standing
In re Adoption of J.E.F. - Pennsylvania Supreme Court - July 18, 2006
majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-5A-5C-2006mo.pdf
concurring - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-5A-5C-2006co.pdf
Aunt and uncle of three children in the legal custody of a child welfare agency have standing to petition for adoption, despite agency's preference for other adoptive parents (foster parents) and the agency's refusal to consent to aunt/uncle's participation. The Adoption Act does not give agencies any "gatekeeping authority" over adoption petitions. It is the court rather than an agency or other entity which has the ultimate responsibility to determine what will be in the best interests of the adoptees.
majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-5A-5C-2006mo.pdf
concurring - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-5A-5C-2006co.pdf
Aunt and uncle of three children in the legal custody of a child welfare agency have standing to petition for adoption, despite agency's preference for other adoptive parents (foster parents) and the agency's refusal to consent to aunt/uncle's participation. The Adoption Act does not give agencies any "gatekeeping authority" over adoption petitions. It is the court rather than an agency or other entity which has the ultimate responsibility to determine what will be in the best interests of the adoptees.
termination of parental rights - change in permanency plan
In re Adoption of S.E.G. - Pa. Supreme Court - July 18, 2006
majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2006mo.pdf
concurring- http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2006co.pdf
Child welfare agency brought petition to termination parental rights without having formally its permanency plan from reunification to adoption. Held, such a formal change in plan is not a condition precedent to an agency bring a petition to terminate parental rights.
majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2006mo.pdf
concurring- http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2006co.pdf
Child welfare agency brought petition to termination parental rights without having formally its permanency plan from reunification to adoption. Held, such a formal change in plan is not a condition precedent to an agency bring a petition to terminate parental rights.
contracts - unjust enrichment
Cooper v. East Penn School District - Commonwealth Court - July 26, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/2430CD05_7-26-06.pdf
"Unjust enrichment is an equitable doctrine implying that a contract exists when a party is found to have unfairly benefited by another's actions....However, unjust enrichment is inapplicable where the parties' relaltionship is founded upon a written agreement, regardless of how 'harsh the provisions of such contracfts may seem in light of the subsequent happenings.'"
http://www.courts.state.pa.us/OpPosting/CWealth/out/2430CD05_7-26-06.pdf
"Unjust enrichment is an equitable doctrine implying that a contract exists when a party is found to have unfairly benefited by another's actions....However, unjust enrichment is inapplicable where the parties' relaltionship is founded upon a written agreement, regardless of how 'harsh the provisions of such contracfts may seem in light of the subsequent happenings.'"
Monday, July 24, 2006
FLSA - overtime pay - executive employees
Davis v. Mountaire Farms - 3d Circuit - July 20, 2006
http://www.ca3.uscourts.gov/opinarch/053982p.pdf
Summary judgment for the employer reversed. The lower court had held that plaintiff-employees were exempt employees under sec. 213(a)(1) of the Fair Labor Standards Act, 29 USC sec. 213(a)(1), and thus not entitled to overtime pay under the FLSA., 29 USC sec. 201 et seq.
Plaintiffs were "crew leaders" who supervised other employees known as "chicken catchers." They had some supervisory responsibilities but these did not include hiring and firing or making ultimate decisions or actions about things like vacations, holidays, or discipline. Plaintiffs often worked more than 40 hours a week, but the employer refused to pay the overtime, claiming they were exempt executive employees. The crew leaders were hourly employees until 2002, at which time they became salaried, but there was no change in their duties or responsbilities.
The court held that FLSA exemptions are construed against the employer, which has the burden of proof to establish that its employees come within the scope of an overtime exemption.
The employer has to satify all four factors under 29 CFR sec. 541.100(a), the most important one in this case concerned the "authority to hire or fire other employees."
Noting that "the case law on this is is very fact specific and not consistent," and that there were "genuine issues of material fact," the court said that it did "not believe that Mountaire had established its case as a matter of law" and remanded the matter.
http://www.ca3.uscourts.gov/opinarch/053982p.pdf
Summary judgment for the employer reversed. The lower court had held that plaintiff-employees were exempt employees under sec. 213(a)(1) of the Fair Labor Standards Act, 29 USC sec. 213(a)(1), and thus not entitled to overtime pay under the FLSA., 29 USC sec. 201 et seq.
Plaintiffs were "crew leaders" who supervised other employees known as "chicken catchers." They had some supervisory responsibilities but these did not include hiring and firing or making ultimate decisions or actions about things like vacations, holidays, or discipline. Plaintiffs often worked more than 40 hours a week, but the employer refused to pay the overtime, claiming they were exempt executive employees. The crew leaders were hourly employees until 2002, at which time they became salaried, but there was no change in their duties or responsbilities.
The court held that FLSA exemptions are construed against the employer, which has the burden of proof to establish that its employees come within the scope of an overtime exemption.
The employer has to satify all four factors under 29 CFR sec. 541.100(a), the most important one in this case concerned the "authority to hire or fire other employees."
Noting that "the case law on this is is very fact specific and not consistent," and that there were "genuine issues of material fact," the court said that it did "not believe that Mountaire had established its case as a matter of law" and remanded the matter.
disability - remand - limited remand order
Scandone v. Barhhart - ED Pa. - July 18, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0880P.pdf
Plaintiff appealed an order finding her disabled as of April 1, 2004. The defendant lost hearing tape and asked for a remand. The Court granted Plaintiff's request to prohibit a de novo adjudication finding Plaintiff not disabled or disabled any later than April 1, 2004.
The Court said that it would be "unfair to Plaintiff to permit the Commissioner to misplace the hearing tape and then 'reconstruct the record' by holding a new hearing before the ALJ, potentially reversing Plaintiff's prior favorable decision...The case will be remanded...for further administrative proceedings, but the determination that Plaintiff has been disabled since April 1, 2004, will not be subject to de novo adjudication."
http://www.paed.uscourts.gov/documents/opinions/06D0880P.pdf
Plaintiff appealed an order finding her disabled as of April 1, 2004. The defendant lost hearing tape and asked for a remand. The Court granted Plaintiff's request to prohibit a de novo adjudication finding Plaintiff not disabled or disabled any later than April 1, 2004.
The Court said that it would be "unfair to Plaintiff to permit the Commissioner to misplace the hearing tape and then 'reconstruct the record' by holding a new hearing before the ALJ, potentially reversing Plaintiff's prior favorable decision...The case will be remanded...for further administrative proceedings, but the determination that Plaintiff has been disabled since April 1, 2004, will not be subject to de novo adjudication."
admin. law - exhaustion of remedies - class action in equity
Kowenhover v. Board of Assessment of Allegheny County - Supreme Court - July 18, 2006
majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-87A-2005mo.pdf
concurring/dissenting http://www.courts.state.pa.us/OpPosting/Supreme/out/J-87A-2005codo.pdf
The Court held that plaintiffs could bring a class-action complaint in equity, seeking declaratory and injunctive relief, challenging constitutionality of practices and hearing procedures in tax assessment appeals, which were alleged to involve consideration of post-hearing evidence obtained after and outside of the record before the hearing officer.
The lower courts had held that such challenges had to be brought in individual cases pursuant to the appeal route provided by statute. The Supreme Court said that its decision allowed equity to assume jurisdiction in cases where "requiring adherence to the statutory avenue would be of little benefit" -- e.g., where the legal remedy would inadequate, incomplete and inefficient and would involve a "multiplicity of duplicative lawsuits" in matters beyond agency expertise -- and where "an action in equity would provide a tidy global resolution...."
majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-87A-2005mo.pdf
concurring/dissenting http://www.courts.state.pa.us/OpPosting/Supreme/out/J-87A-2005codo.pdf
The Court held that plaintiffs could bring a class-action complaint in equity, seeking declaratory and injunctive relief, challenging constitutionality of practices and hearing procedures in tax assessment appeals, which were alleged to involve consideration of post-hearing evidence obtained after and outside of the record before the hearing officer.
The lower courts had held that such challenges had to be brought in individual cases pursuant to the appeal route provided by statute. The Supreme Court said that its decision allowed equity to assume jurisdiction in cases where "requiring adherence to the statutory avenue would be of little benefit" -- e.g., where the legal remedy would inadequate, incomplete and inefficient and would involve a "multiplicity of duplicative lawsuits" in matters beyond agency expertise -- and where "an action in equity would provide a tidy global resolution...."
tax sale - redemption - residential v. commercial purpose
Lamm v. Fisher - Superior Court - July 19, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/s31032_06.pdf
The court rejected the petition for redemption, under the Municipal Claims and Tax Liens Law, 53 P.S. 7293, of a person whose property was sold at a sheriff's sale, because the property was used for a commercial rather than residential purpose. The act "is unambiguous and limits redeption to a non-vacant property occupied as a residence."
http://www.courts.state.pa.us/OpPosting/Superior/out/s31032_06.pdf
The court rejected the petition for redemption, under the Municipal Claims and Tax Liens Law, 53 P.S. 7293, of a person whose property was sold at a sheriff's sale, because the property was used for a commercial rather than residential purpose. The act "is unambiguous and limits redeption to a non-vacant property occupied as a residence."
Friday, July 21, 2006
Pennsylvania Bulletin of July 22, 2006
The link http://www.pabulletin.com/secure/data/vol36/36-29/index.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-29/1261.html
- Rules of Civil Procedure - Rule 204.1 - Pleadings and Other Papers - Format
http://www.pabulletin.com/secure/data/vol36/36-29/1264.html
- Minor Court Rules - PFAs - Older Adult Protective Services Act
http://www.pabulletin.com/secure/data/vol36/36-29/1266.html
- "manufactured homes" - installation pgm - training curric. - bldg. code officials
http://www.pabulletin.com/secure/data/vol36/36-29/1282.html
- sign language interpreters and transliterators - registration - Labor & Industry - Office of Deaf & Hard of Hearing
http://www.pabulletin.com/secure/data/vol36/36-29/1274.html
- DPW - department reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1274.html
- Labor and Industry - department reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1277.html
- Dept. of Health - reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1276.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-29/1261.html
- Rules of Civil Procedure - Rule 204.1 - Pleadings and Other Papers - Format
http://www.pabulletin.com/secure/data/vol36/36-29/1264.html
- Minor Court Rules - PFAs - Older Adult Protective Services Act
http://www.pabulletin.com/secure/data/vol36/36-29/1266.html
- "manufactured homes" - installation pgm - training curric. - bldg. code officials
http://www.pabulletin.com/secure/data/vol36/36-29/1282.html
- sign language interpreters and transliterators - registration - Labor & Industry - Office of Deaf & Hard of Hearing
http://www.pabulletin.com/secure/data/vol36/36-29/1274.html
- DPW - department reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1274.html
- Labor and Industry - department reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1277.html
- Dept. of Health - reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1276.html
Friday, July 14, 2006
consumer protection - liability of corporate officer
Commonwealth v. Manson - Commonwealth Court - July 10, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/1710CD05_7-10-06.pdf
The CEO/lead investor of a company was individually liable for consumer protection law (CPL) violations where the evidence with the he had participated, taken part, and cooperated in conduct which was fraudulent or deceptive and likely to create confusion or misunderstanding, under sec. 2(4)(xxi) of the CPL, 73 P.S. sec. 201-2(4)(xxi).
"Pennsylvania law recognizes the participation theory as a basis for liability" in such a situation. "Liability under this theory attaches only where the corporate officer is an actor who participates in the wrongful actions; thus, corporate officers may be held liable for misfeasance...[but not] for mere nonfeasance."
Concerning deceptive conduct, the court said that the question was not whether the wrongful conduct was intended to deceive the consumer but rather whether person "engaged in conduct that might be 'deceptive to the ordinary consumer'" -- a lesser wrong that fraudulent conduct.
The company in question was Unclaimed Freight Company, LLC. The wrongful conduct was in taking orders for merchandise and receiving payments from consumers, when the company and its CEO "knew or should have known that the merchandise would not be delivered to those consumers...Unclaimed Freight provide neither furniture nor refunds...."
http://www.courts.state.pa.us/OpPosting/CWealth/out/1710CD05_7-10-06.pdf
The CEO/lead investor of a company was individually liable for consumer protection law (CPL) violations where the evidence with the he had participated, taken part, and cooperated in conduct which was fraudulent or deceptive and likely to create confusion or misunderstanding, under sec. 2(4)(xxi) of the CPL, 73 P.S. sec. 201-2(4)(xxi).
"Pennsylvania law recognizes the participation theory as a basis for liability" in such a situation. "Liability under this theory attaches only where the corporate officer is an actor who participates in the wrongful actions; thus, corporate officers may be held liable for misfeasance...[but not] for mere nonfeasance."
Concerning deceptive conduct, the court said that the question was not whether the wrongful conduct was intended to deceive the consumer but rather whether person "engaged in conduct that might be 'deceptive to the ordinary consumer'" -- a lesser wrong that fraudulent conduct.
The company in question was Unclaimed Freight Company, LLC. The wrongful conduct was in taking orders for merchandise and receiving payments from consumers, when the company and its CEO "knew or should have known that the merchandise would not be delivered to those consumers...Unclaimed Freight provide neither furniture nor refunds...."
Pennsylvania Bulletin of July 15, 2006
The link http://www.pabulletin.com/secure/data/vol36/36-28/index.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-28/1307.html
http://www.pabulletin.com/secure/data/vol36/36-28/1308.html
- Commonwealth Court - internal operating procedures - citing unreported decisions
http://www.pabulletin.com/secure/data/vol36/36-28/1310.html
- welfare - "designated exceptional durable medical equipment"
http://www.pabulletin.com/secure/data/vol36/36-28/1352.html
- insurance - credit life and credit accident/health insurance - amended regs
http://www.pabulletin.com/secure/data/vol36/36-28/1321.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-28/1307.html
http://www.pabulletin.com/secure/data/vol36/36-28/1308.html
- Commonwealth Court - internal operating procedures - citing unreported decisions
http://www.pabulletin.com/secure/data/vol36/36-28/1310.html
- welfare - "designated exceptional durable medical equipment"
http://www.pabulletin.com/secure/data/vol36/36-28/1352.html
- insurance - credit life and credit accident/health insurance - amended regs
http://www.pabulletin.com/secure/data/vol36/36-28/1321.html
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