consumer - motor vehicle salespersons - licensing - false statements about financing

Howard v. State Board of Vehicle Salespersons - Commonwealth Court - February 29, 2008 -- unreported

http://www.courts.state.pa.us/OpPosting/CWealth/out/1027CD07_2-29-08.pdf

The court upheld the revocation of the license of a motor vehicle salesperson, who had pleaded guilty to several crimes related to the sales of motor vehicles. The Board charged him with violating Section 19 of the Board of Vehicles Act, 63 P.S. sec. 818.19, which prohibits

a) making any substantial misrepresentation of material facts.
b) making any false promise of a character likely to influence, persuade or induce the sale of a vehicle.
c) having within five years prior to the application for or issuance of a license or while his current license is in force pleaded guilty . . . in a court of competent jurisdiction in this or any other state or Federal jurisdiction of forgery, embezzlement, obtaining money under false pretenses, extortion, conspiracy to defraud, bribery, odometer tampering or any other crime involving moral turpitude;
d) having failed or refused to account for moneys or other valuables belonging to others which have come into his possession arising out of the sale of vehicles. . . . .
e) having committed any act or engaged in conduct in connection with the sale of vehicles which clearly demonstrates unprofessional conduct or incompetency to operate as a licensee under this act.

In its decision, the Board said that it was especially concerned that the salesperson “knowingly misrepresented the financing portions of some vehicle transactions in order to take advantage of unsuspecting customers that placed their trust in him so as to allow [petitioner] to make personal financial gains. Specifically, [petitioner] made false promises regarding customers’ vehicle financing in order to obtain fraudulent bank loans in [his] name so that he could use those funds to purchase his own vehicle dealership."

The Board rejected petitioner's argument based on laches, since he had not raised it before the agency.

K&L Gates Electronic Discovery Case Database

Kirkpatrick & Lockhart Preston Gates Ellis LLP (K&L Gates) maintains and continually updates a database containing over 900 electronic discovery cases collected from state and federal jurisdictions around the United States.

This database is searchable by keyword, as well as by any combination of 28 different case attributes, e.g., on-site inspection, allegations of spoliation, motion for a preservation order, etc. Each search will produce a list of relevant cases, including a brief description of the nature and disposition of each case, the electronic evidence involved and a link to a more detailed case summary if available.

This database supplements the electronic discovery law blog maintained by the firm at ediscoverylaw.com. The blog is dedicated to legal issues, news and best practices relating to discovery of electronic stored information published by the e-Discovery Analysis and Technology Group at K&L Gates.

E-Discovery Case Database
electronic discovery law blog (ediscoverylaw.com)

Article: Where Do the Footprints of Metadata Lead?

The National Law Journal features an excellent article published on Law.com, that provides an overview of legal and ethical issues concerning metadata. In addition to explaining what metadata is, the article briefly examines how one finds it as well as the ethics of mining for it.

The article is at the link below.

Where Do the Footprints of Metadata Lead?

consumer protection - assignee liability

Colanzi v. Countrywide Homes Loans - ED Pa. - February 22, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0209P.pdf

The assignee of an allegedly improper mortgage loan is not liable for the alleged wrongful acts of the originator of the loan, where there is no allegation of any specific wrongful acts on the part of the assignee. "While the [consumer protection] statute 'provides that consumers may sue a seller of goods or services who commits an unfair trade practice, it does not impose liability on parties who have not themselves committed any wrongdoing. Williams v. Natl Sch. of Health Tech, 836 F.Supp. 273, 283 (E.D. Pa. 1993)." None of the alleged wrongful actions could be imputed to the defendant.

federal courts - pleading - Rules 8(a)(2) and 12(b)(6)

Phillips v. County of Allegheny - Third Circuit - February 5, 2008

http://www.ca3.uscourts.gov/opinarch/062869p.pdf

This case discusses the change in long-established pleading standards, resulting from the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955 (2007). Prior to Twombly, the courts had applied the "no set of facts" language and held that a "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-6 (1957).

The Third Circuit found "two new concepts in Twombly" involving a discussion of the language of Rule 8 http://www.law.cornell.edu/rules/frcp/Rule8.htm that a complaint has to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The Court said that this required a 'showing' rather than a blanket assertion of entitled to relief" and required the pleading of factual allegations that were "enough to raise a right to relief above the speculative level." A "formulaic recitation of the elements of a cause of action will not do."

Second, the Twombly Court "disavowed certain language that it had used many times before --the "no set of facts" language from Conley...It is clear that the 'no set of facts' language may no longer be used as part of the Rule 12(b)(6) [http://www.law.cornell.edu/rules/frcp/Rule12.htm] standard...'This phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be support by showing any set of facts consistent with the allegations in the complaint.'" The Third Circuit found that "these two aspects of the decision are intended to apply to the Rule 12(b)(6) standard in general."

The Third Circuit also noted that

- while the requirment of a "showing" is new, the Supreme Court also expressly reaffirmed that Rule 8 requires only a short and plain statement of the claim and its grounds. "Whether and to what extent that 'showing' requires allegations of act will depend on the particulars of the claim." Context will be all-important.

- the Twombly court was "careful to base its analysis on pre-existing principles...The Court emphasized throughout its opinion that it was neither demanding a heightened pleading of specifics nor imposing a probability requirement....Thus, under our reading, the notice pleading standard of Rule 8(a)(2) remains intact, and courts may generally state and apply the Rule 12(b)(6) standard, attentive to context and a showing that 'the pleader is entitled to relief, in order to give the defendant fair notice of what the...claim is and the grounds upon which it rests.'"

- like other courts, the Third Circuit found the Twombly decision "confusing" and said that it would "likely be a source of controversy for years to come."

- Twombly may involve a new "plausibility requirement" and require rejection of claims in the there a "mere metaphysical possibility" of a plaintiff proving some facts to support the claim

The court summarized by saying that "all of the foregoing discussion can be reduced to this proposition: Rule 8(a)(2) has it right....This rule requires not merely a short and plain statement, but instead mandates a statement 'showing that the pleader is entitled to relief.' That is to say, there must be some showing sufficient to justify moving the case 'beyond the pleadings to the next stage of litigation."

state appellate procedure - Rule 1925(b) - statement of errors complained of - waiver - quantity of issues

Eiser v. Brown & Williamson Tobacco Corp. - Pa. Supreme Court - December 28, 2007

plurality (3) http://www.courts.state.pa.us/OpPosting/Supreme/out/J-22-2007oajpdf
concurring (2) http://www.courts.state.pa.us/OpPosting/Supreme/out/J-22-2007co.pdf
dissent -Castille http://www.courts.state.pa.us/OpPosting/Supreme/out/J-22-2007do1pdf
dissent - Eakin http://www.courts.state.pa.us/OpPosting/Supreme/out/J-22-2007do2pdf

Pa. R.A. P. 1925(b) requires an appellant to file and serve on the trial judge a "concise statement of the errors complained of on appeal," where the judge "desires clarification of the errors complained of" and enters an order directing the appellant to prepare such a statement. http://www.pacode.com/secure/data/210/chapter19/s1925.html

As the plurality noted, this rule has been discussed in a "myriad [of] recent decisions...which reach varying conclusions.....[T]here is much consternation in the courts of this Commonwealth related to where lies the outer limit of the number of issues" an appellant may raise under this rule." The process under Rule 1925(b) "has turned into a maelstrom in recent years....."

This case does little to "clarify and quell the consternation," especially given the questionable precedential value of plurality opinions. Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454; 866 A.2d 270, 275 n. 2 (Pa. 2005).

In this case, the appellants filed a 15-page statement containing 24 separately-numbered issues, some of which contained sub-issues. The trial court wrote an 85-page opinion in the case, which had a "complicated and voluminous record" and in which four judges had issued rulings. The trial and Superior Courts held that appellants had waived their right to appellate review as to 6 of 8 issues they had raised and not voluntarily abandoned on appeal.

Plurality opinion - no per se rule - presumption of good faith
The plurality "instruct[ed] lower courts to address, on the merits, all issues raised in good faith....This standard provides, where necessary, a familiar tool to assess the basis for the issues raised." The plurality also stated that "the number of issues raised in the Rule 1925(b) statement cannot by itself provide a basis for finding waiver....In sum, the number of issues raised in a Rule 1925(b) statement does not, without more, provide a basis upon which to deny appellate review where an appeal otherwise complies with the mandates of appellate practice....There is a presumption that an attorney licensed to practice law in this Commonwealth, who acts as an officer of the court system, has acted in good faith upon signing a document filed with the court." The court "encourage[d] lower courts to recognize that on rare occasions a party may, in good faith, believe that a large number of issues are worthy of pursuing on appeal." (emphasis added)

Saylor, J., concurring - The justice noted his disagreement with a "strict waiver approach" and opposition to any expansion of that doctrine. He thought that the trial and intermediate appellate courts "had reasonable alternatives short of the drastic sanction of outright dismissal to address the apparent lack of conciseness in the statement."

Castille, J., dissenting - The dissenting justice noted that the trial and Superior Court orders were issue-specific and had held that 2 of the 8 matters complained of were "susceptible of meaningful review.....In short, appellants were afforded appellate review, but that review was restricted." The justice criticized the Court's finding of appellants' good faith, noting that it was "not a court of record with fact-finding capacity or function." He said that the lower court decisions were the "natural result of appellants' own Rule 1925(b) conduct," that "appellants took no action to protect their interests," and that the plurality overlooked appellants' lapses. He thought that the result of the plurality opinion would be "the filing of prolix statements as of right, without leave or explanation" and was a solution that would "reward...litigants who primarily have themselves to blame for their dilemmas."

Eakin, J., dissenting - The justice felt that the 1925(b) statement impeded rather than aided the trial judge in writing an opinion. "There comes a point when too much is simply too much."

disability - credibility - medical sources - findings and reasons

Echols v. Astrue - ED Pa. - January 31, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0141P.pdf

Case remanded because of improper determination about claimant's credibility and the other errors listed below.

The ALJ erred in crediting evidence from one source about claimant's credibility but rejecting evidence from the same source about claimant's RFC, without explaining this inherent contradiction. In making findings about credibility and other issues, findings, the ALJ must indicate in his decision which evidence he has rejected and which he is relying, as well as the reasons for choosing one over the other, so that the court can assess whether significant probative evidence was credited or ignored. Schaudeck v. Commr., 181 F.3d 429, 433 (3d Cir. 1999).

GAF - acceptable medical source - SSR 06-3p allows the opinion of an other-than "acceptable medical source" to outweigh that of an "acceptable medical source." Here a AMS set the GAF at 57 but an other than AMS (a masters level clinician and licensed clinician) found it to be 45. The ALJ did not explain his preference for the AMS's opinion. In addition, the defendant commissioner improperly gave a reason for the decision that was not included in the ALJ decision. Defendant may not substitute its reasons for that of the ALJ’s. See Fargnoli v. Halter, 247 F.3d 34, 44 n.7 (3d Cir. 2001) (quoting SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“[T]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based”)).

claimant's credibility - findings and reasons - The ALJ did not explain why/how he found some of claimant's statements credible and others not credible. Chenery Corp., 318 U.S. at 87; Fargnoli, 247 F.3d at 44 n.7. The ALJ’s failure to indicate clearly in his credibility finding which of Plaintiff’s statements he credited, which he found were not supported by the medical record, and why, leaves the court unable to assess properly whether significant probative evidence was credited or ignored. See Schaudeck, 181 F.3d at 433.

RFC formulation - In determining the RFC, the ALJ must consider all relevant evidence. Fargnoli, 247 F.3d at 41. “That evidence includes medical records, observations made during formal medical examinations, descriptions of limitations by the claimant and others, and observations of the claimant’s limitations by others.” Id. (citing 20 C.F.R. § 404.1545(a)). The ALJ’s RFC finding must provide a clear and satisfactory explanation of its basis but did not do so here.

VE opinion - The errors listed above also made the VE hypothetical improper. After correcting errors in the ALJ’s credibility and RFC determinations on remand, the ALJ must present a complete hypothetical to the VE and consider any VE opinion that encompasses all limitations found to exist.

consumer protection - title insurance - fraudulent OR deceptive conduct

Alberton, et al. v. Commonwealth Land Title Insurance Co. - ED Pa. - January 31, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0133P.pdf

The court certified a class of consumer who had purchased title insurance from defendant within 10 years of a prior purchase of title insurance. The court said that "[i]n doing so, it joins a growing list of courts around the country that have certified similar classes of insurance purchasers bringing similar cases against insurance sellers and arising from practices nearly identical to the sales practices challenged here."

Title insurance is regulated by the Pennsylvania Title Act, 40 P.S. 910-1 et seq., and the Title Insurance Rating Bureau Manual (Manual), which establishes a mandatory 3-tier pricing structure - basic, reissue, and refinance. The named plaintiff claimed that he was entitled to the lowest rate (refinance) but was charged the higher reissue rate, which cost him $234.08 more.

Plaintiff sued under various causes of action (contract, UTPCPL, fraudulent misrepresentation, etc. etc.) who elements differed "but each turns on the question of whether plaintiff was required to request a discounted rate and produced evidence showing his entitlement to that rate when he purchases title insurance from Commonwealth; or whether Commonwealth should have automatically offered plaintiff discounted rate upon learning, through the title search, that he had refinanced in the [recent] past," thus entitling him to a discount.

Of particular note was the court's discussion of the UTPCPL claim, in the context of Rule 23(b)'s requirement that common questions of law/fact predominate over individual questions. The court said that

A plaintiff seeking to recover under the UTPCPL once was required to prove all the elements of common law fraud; however, a 1996 amendment made the law “less restrictive.”9 Commonwealth v. Percudani, 825 A.2d 743, 747 (Pa. Cmwlth. 2003). Plaintiffs must now show conduct that is “deceptive to the ordinary consumer,” but need not prove all the elements of fraud.10 Id. at 746. Thus, individualized proof of justifiable reliance is no longer required to succeed on a claim under the UTPCPL. Instead, “[a] policy of not applying published insurance rates, if proven, would satisfy the requirement of a deceptive practice under the UTPCPL.” Cohen, 242 F.R.D. at 301. Because plaintiffs can succeed as a class by showing Commonwealth’s policy rather than individual reliance, common questions predominate on this claim.

9 Section 202-2(4)(xxi) now prohibits “engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 Pa. Cons. Stat. Ann. § 202-2(4)(xxi)..... Prior to 1996, the section addressed only “fraudulent,” not “deceptive,” conduct.....

10 Pennsylvania courts are divided as to the import of the 1996 amendment to the UTPCPL: the superior courts continue to require plaintiffs under the UTPCPL to prove all the elements of common law fraud whereas the Commonwealth court has abandoned that requirement. See Com. ex rel. Corbett v. Mason, 903 A.2d 69, 74 (Pa. Cmwlth. 2006) (recognizing split among Pennsylvania courts). The Commonwealth court reasons that “(1) the statute is to be liberally construed to effectuate the legislative goal of consumer protection; (2) the legislature’s addition of the words ‘or deceptive’ signals a less restrictive interpretation; and (3) maintaining the pre-1996 requirement would render the words ‘or deceptive conduct’ redundant and superfluous, contrary to the rules of statutory construction.” Id. Other federal courts that have considered the effect of the 1996 amendment have agreed with the Commonwealth court’s conclusion. See, e.g., Cohen, 242 F.R.D. 295; Flores v. Shapiro & Kreisman, 246 F. Supp. 2d 427, 432 (E.D. Pa. 2002) (holding that, to survive a motion to dismiss, plaintiff seeking relief under UTPCPL need allege only that conduct was deceptive; all six elements of common law fraud are not necessary); In re Patterson, 263 B.R. 82, 91-92 (Bankr. E.D. Pa. 2001). Persuaded by the reasoning of the Commonwealth court and these federal courts, this Court also concludes that the addition of “deceptive” conduct to the UTPCPL signals the legislature’s intent that plaintiffs proceeding under the UTPCPL no longer be required to establish the elements of common law fraud.

The Title Insurance statute is also discussed in the recent ED Pa. case of Markocki v. Old Republic National Title Insurance Company http://www.paed.uscourts.gov/documents/opinions/07D1382P.pdf

real property - judicial sale - petition to set aside - due process rights of owner

Fulton v. Bedford County Tax Claim Bureau - Commonwealth Court - January 31, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/1302CD07_1-31-08.pdf

A person who holds legal title to property which he purchased at a judicial sale is an indispensable party to and has a due process right to get notice of and take part in the prior owner's subsequent petition to set aside the judicial sale because of alleged lack of notice. The lower court erred in denying the purchaser's petition to intervene in the proceedings on the prior owner's petition.

The purchaser was more than just a successful bidder at a tax upset sale, but rather held title to the property as owner, after title passed first to the taxing bureau as trustee, which then conveyed its title to purchaser, who became the legal title holder. "As legal owner, Purchaser is entitled to due process before title to the Property may be transferred to another....To that end, appellate courts consistently hold property owners are indispensable parties to lawsuits affecting their property rights."

consumer protection - credit card - statute of limitations

Richburg v. Palisades Collection LLC and Wolpoff & Abramson LLP- ED Pa. - January 28, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0113P.pdf

Plaintiff sued defendants -- a collection agency and a law firm -- under various consumer statutes for bringing suit to collect a debt on which the statute of limitations had run. Defendants moved for summary judgment, claiming that the statute of limitations for such actions was 6 years and that their suit against plaintiff was filed within that period.

The court rejected this argument, holding that the statute of limitations on an alleged credit card debt is four (4) years under the standard contract provision in 42 Pa. C.S. 5525(a).

account stated - The court rejected the defendants' claim that they had sued plaintiff within the proper limitations period, which they said was six years, under 42 Pa. C.S. 5527(b), which covers cases which do not come under any other specified limit. The defendants claimed that the debt was on an "account stated." After a thorough review of the law of "account stated," the court said the it was "just a variety of contract" and came under the 4-year statute covering contracts.

letter from attorney was attempt to collect debt - The court also rejected the claim that the debt collector's attorneys were not themselves acting as debt collectors, noting a pre-suit letter to plaintiff stating that "this is an attempt by a debt collector to collect a debt," with no reference to an impending legal action or any suggestion that it was part of an attempt to prosecute a lawsuit. The court said that the letter created attorney liability under the state debt collection law, 73 Pa. C.S. 2270.1 et seq., which in turn established per se liability under the state consumer protection law, 73 P.S. 201-1 et seq.

bona fide error defense - The court refused summary judgment on defendants' claim under the bona fide error defense, 15 USC 1992k(c) and 72 P.S. 2270.5(d), holding that under the facts, there was a jury question as to whether defendant Palisades national survey of statutes of limitations was, as a matter of law, a measure that was reasonably adapted to avoid the error that occurred here.

The bona fide error defense involves three prongs: 1) a (subjective) determination of whether the violation was unintentional; and objective determinations of 2) whether the error leading to FDCPA violation was bona fide, and 3) whether defendants maintained reasonable procedures to avoid such an error. When the error involves an alleged mistake of law, these last two elements "merge with one inquiry driving the other." Noting a split of authority on the issue, the court said that it was siding with a "'growing minority of courts' that finding mistakes of law can satisfy the FDCPA's bona fide error defense."

The court noted that there is a difference between a debt collector relying on the interpretation of a disinterested third party, such as a regulator, e.g. Kort v. Diversified Collection Services, 394 F.3d 530, 533-4 (7th Cir. 2005), from one relying on "their own expansive statutory interpretations that theoretically would have the effect of insulating them from liability under the FDCPA, e.g., Johnson v. Riddle, 443 F.3d 7213, 727-8 (10th Cir. 2006).

disability - treating physician opinion - duty of ALJ to develop record

Nguyen v. Astrue - ED Pa. - January 23, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0094P.pdf

Case remanded for proper consideration of the opinion of the treating psychiatrist.

The ALJ errors included

- improperly relying on claimant's failure to allege any symptoms in his Social Security paperwork failing to tell the treating psychiatrist about experiencing emotional problems as of a certain date. The court held that these “facts” are entitled to “no weight . . . because neither are based on ‘contrary medical evidence.’

- improperly considering claimant's failure to discuss his emotional problems with his family physician. That cannot negate the opinion of his treating psychiatrist, the specialist claimant consulted for his specific problem.”

- the fact that Mr. Nguyen told his doctor that he was "doing okay on the medication and was less depressed” does does not expressly contradict treating physician's opinion and substitutes the ALJ’s clinical judgment for that of the treating psychiatrist. The notes do not expressly contradict the physician's opinion. In so finding, the ALJ’s substituted his clinical judgment for that of the treating psychiatrist. The ALJ did not identify a contradiction between the doctor's notes and her opinion, but instead “set [the ALJ’s] own expertise against that of a physician who presents competent evidence.” Ferguson v. Schweiker, 765 F.2d 31, 37 (1985).

- The ALJ's statement that the treating physician's report was completely unsubstantiated by any contemporaneous clinical notes or testing. . . .is belied by the record"

- duty to develop the record - The ALJ, in considering the submissions of a claimant’s treating psychiatrist, has a limited duty to develop the record if he finds those submissions, in certain respects, inadequate to support the conclusions the psychiatrist makes. See Ferguson, 765 F.2d at 36 (“[I]f the ALJ believed [a claimant’s medical] evidence was inconclusive or unclear, it was incumbent upon him to secure whatever evidence he needed to make a sound determination.”). Pursuant to 20 C.F.R. § 404.1512(e)(1), the ALJ must “seek additional evidence or clarification from [a claimant’s] medical source when the report from [the] medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.” This specific regulation is an instance of the ALJ’s broader “duty to develop a full and fair record in social security cases.” Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995).

This duty is “heightened” when plaintiff is without counsel, Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979), but still exists when plaintiff is represented. See Ventura, 55 F.3d at 902 (concluding, in a case where the claimant was represented by counsel but the ALJ was biased, that the ALJ’s duty to develop the record stems from the non-adversarial nature of social security hearings and the “beneficent purposes” of the Social Security Act).

Thus, while claimant bears the burden of providing evidence that the Commissioner “can use to reach conclusions about [the claimant’s] medical impairment(s),” 20 C.F.R. § 416.912(a), circumstances may arise where the ALJ, when presented with such evidence, may be compelled to develop the record in order to corroborate or discredit the claimant’s submissions. An “essential inquiry” for determining when this duty arises “is whether the incomplete record reveals evidentiary gaps which result in prejudice to the claimant.” Gauthney v. Shalala, 890 F. Supp. 401, 410 (E.D. Pa. 1995). Schwartz v. Halter, 134 F. Supp. 2d 640, 656 (E.D. Pa. 2001) (holding that the ALJ’s duty to develop the record “exists even when the claimant is represented by counsel because an administrative hearing is not an adversarial proceeding . . . ”); Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994) (holding that “the duty to develop the record fully and fairly” exists “‘even if . . . the claimant is represented by counsel’” (quoting Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir.1992) (internal quotation omitted)).

PA Bar Association Issues Ethics Opinion on Mining Metadata

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility has recently issued Formal Opinion, 2007-500, on the subject or mining metadata received in materials furnished by opposing counsel.

Metadata is information embeded within electronic documents that may not be viewed in a printed version of the document. It may include information about the creation of the document including information about the author, date, time or location where it was created. Metadata may also contain information deleted from earlier versions of the document, or information contained in comments made by reviewers during the document's creation.

The Committee concluded that, under the Pennsylvania Rules of Professional Conduct, each attorney must determine for himself or herself whether to utilize the metadata contained in documents and other electronic files based upon the lawyer’s judgment and the particular factual situation.

This determination should be based upon the nature of the information received, how and from whom the information was received, attorney-client privilege and work product rules, and common sense, reciprocity and professional courtesy.

Although the waiver of the attorney-client privilege with respect to privileged and confidential materials is a matter for judicial determination, the Committee believed that the inadvertent transmissions of such materials should not constitute a waiver of the privilege, except in the case of extreme carelessness or indifference.

The Committee noted that there is no specific Pennsylvania Rule of Professional Conduct determining the ethical obligations of a lawyer receiving inadvertently transmitted metadata from another lawyer, his client or other third person; and, there is no specific Pennsylvania Rule of Professional Conduct requiring the receiving lawyer to assess whether the opposing lawyer has violated any ethical obligation to the lawyer's client.

In reaching its conclusion, the Committee reviewed decisions from other jurisdictions in light of the existing rules in Pennsylvania.

The Opinion is available to Pennsylvania Bar Association members on the PA Bar Association website at the link below.

PA Bar Association Ethics Opinions

consumer - warranty - UCC- UTPCPL - Magnuson-Moss

Woolums v. National RV - MD Pa. - January 17, 2008

http://www.pamd.uscourts.gov/opinions/Conner/06v0787.pdf

Plaintiff sued under the UCC,13 Pa. C.S 2313-2316; the Consumer Protection Law, 73 P.S. 201-1 et seq.; and the Magnuson-Moss Warranty-FTC Improvement Act, 15 USC 2301-2312. The case was originally brought in state court, but removed to federal court on defendant's motion.

Defendant moved for summary judgment on all claims. The court granted the motion only as to breach of the implied warranties of merchantability and fitness for a particular purpose, holding that they had been properly disclaimed -- it was in writing, was conspicuous, and used appropriate and understandable language. Defendant's motion for summary judgment was denied as to all other claims, based on applicable law and because there were genuine issues as to material facts.

Defendant issued a one-year limited warranty covering the costs of repairing or replacing parts and labor to correct Covered Defects, which are limited to the any manufacture or assembly process performed by National. Problems with other parts were outside of this warranty. There was no representation that the covered parts or workmanship conformed to any standard of quality or performance. Plaintiff had numerous problems with the RV and took it in for repairs on many occasions.

seller's promise to repair or replace is an express warranty under UCC 2313(a)(1)
Noting a split of authority on the issue, which it said Pennsylvania courts have not squarely addressed, the court held that the "repair-or-replace covenant constitutes an express warranty actionable under the UCC, 13 Pa. C.S 2313(a)(1). The court noted the "breadth of statutory language [that] provides that "any affirmation of fact or promises...creates an express warranty that the good shall conform to the affirmation or promise...[T]he word 'any' suggests that all express promises that pertain to the goods become warranties, even if they do not specifically address the goods' quality or nature...The UCC official comments confirm that sec. 2313 is to be given a wide berth." National itself used the term "express warranty." Under those circumstances, the court said the "it would be fundamentally unfair to permit National to invoke an illusory construction of its contractual language, leaving merely a remedial promise to repair" instead of the express promise to repair or replace.

The court noted that the "express warranty at issue, like many contracts between commercial sellers and consumer, is one of adhesion....Adhesion contracts are not per se invalid, but courts strictly construe them against the drafting party, who holds a position of superior bargaining power and can dictate the agreement's terms."

failure of limited remedy to accomplish its essential purpose
The court held that the parties' positions differed significantly on the issue of whether defendant's attempt to limit plaintiff's remedies caused them to "fail of its essential purpose" under UCC sec. 2719(b), thus raising a jury question and precluding summary judgment, given the buyer's proffered evidence that he was unable to use the motor home for about eight months because of repairs that were covered by the warranty. An exclusive repair--as opposed to repair-replace-- remedy is acceptable, "so long as the buyer has the use of substantially defect-free goods. But when the seller is either unwilling or unable to conform the good to the contract, the remedy does not suffice" and fails of its essential purpose.

Magnuson-Moss warranty claim - 15 USC 2301 et seq.
This act "provides relief for consumers 'damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under [the Act] or under a written warranty, implied warranty, or service contract.' 15 USC 2301(d)(1)..."Written warranties under the act include those which guarantee that the seller will 'repair, replace, or take other remedial action with respect to a defective product in the event that such product fails to meet the specifications set forth in the undertaking...A violation of the act allows the consumer to seek recovery of the purchase price of the product plus attorney's fees and costs. The court denied defendant's motion for summary judgment on this claim, finding that "a reasonable jury could find that defendant failed to abide by the term of the warranty," in violation of the statute.

state consumer protection claim 73 P.S. 201-1 et seq.
A failure to comply with the terms of any written guarantee or warranty is actionable under the CPL, sec. 201-2(4)(xiv). Summary judgment for defendant denied because of genuine issue of material fact.

bankruptcy - appeals - final order

In re Truong - 3rd Circuit - January 16, 23008

http://www.ca3.uscourts.gov/opinarch/063980p.pdf

An order which "merely denied [a] request for a hearing concerning an alleged conflict of interest on the part of the trustee" is not final and appealable under 28 USC 158(a). It was a "purely interlocutory order" and did not "end the litigation on the merits" or "dispose of any discrete claim or cause of action." .

The court reached this decision, even though there are finality considerations unique to bankruptcy appeals, in which the courts "traditionally impose a 'relaxed standard of finality.' " A "general antipathy toward appeals still prevails in individual adversary actions...[E]ven in bankruptcy appeals the concept of finality is not open-ended."

employment - wages - FLSA - donning and doffing

Lugo v. Farmer's Pride, Inc. - ED Pa. - January 14, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0061P.pdf

The court denied defendant's 12(b)(6) motion to dismiss plaintiffs' claims for wages for time donning and doffing work clothing, holding that it would be premature to rule on such mixed questions of law and fact without further development of the record.

The issue is whether the donning and doffing is "integral and indispensable " to employee's work and thus compensable under the Fair Labor Standards Act, 29 USC sec. 201 et seq., the Portal-to-Portal Act, 29 USC 254(a), and IBP, Inc. v. Alvarez, 546 U.S. 21 (2005) and its progeny.

Commonwealth Court - unreported opinions - indefinite posting

As of January 15, 2008 (and at the request of the Commonwealth Court), the following changes have been made to the webpage where its opinions are posted
http://www.courts.state.pa.us/OpPosting/index/CWealthOpindex.asp

Unreported opinions - indefinite posting
Unreported opinions will be posted indefinitely. Previously, they were removed after 90 days. All unreported opinions less than 90 days old, posted prior to January 15 are available through a link on the unreported opinions webpage titled ‘Unreported Opinions Prior to Jan. 15, 2008.’

Order of posting - most recent to oldest
The default sort order for both reported and unreported postings is now from the most recent to the oldest, as requested by many users. This posting order is also being followed on Superior http://www.courts.state.pa.us/OpPosting/index/SuperiorOpindex.asp and Supreme Court http://www.courts.state.pa.us/OpPosting/index/SupremeOpindex.asp opinion sites

bankruptcy - credit counseling prior to filing

In re Hoshan - ED Pa. - January 7, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0029P.pdf

This Chapter 13 case was held to have been properly dismissed, because the debtor/appellant did not get or certify that she got credit counseling before filing the bankruptcy, as required by 11 USC sec. 109(h)(1).

The debtor filed her petition on March 30th, lacking a number of documents, including either a certificate that she had already received credit counseling or a request for an extension or exemption from that requirement, due to exigent circumstances. She didn't actually get credit counseling until April 3rd, and filed a certificate to that effect on April 30th.

Bankruptcy Rule 9006(b)(1) allows the court discretion to excuse late filing due to "exigent circumstances" and the debtor made a "persuasive case" for that. But the court said that the "real issue....is not the late filing [but] that the appellant did not receive credit counseling before she filed her bankruptcy."

Although the court recognized that the counseling requirement is not jurisdictional, it noted that "[m]osts courts have concluded that dismissal is mandated when the debtor has not complied with the credit counseling requirement."

Noting that "[s]ome courts have waived the credit counseling requirements to avoid manifest injustice," the court said that the debtor did not meet that test, even thought it was "sympathetic to the challenges the appellant faces as the mother of seven children and the primary caretaker for her injured husband....Her family situation, while difficult, does not rise to the level of those cases in which courts avoid manifest injustice by waiving the credit counseling requirement."

The court cited In re Manalad, 360 B.R. 288, 296 (Bankr. C.D. Cal. 2007) (debtor’s counsel mistakenly advised him that his non-consumer debts were not subject to the requirements); In re Vollmer, 2007 WL 541747 Bankr. E.D. Va. 2007) (debtor was incarcerated at the time he filed his petition and had no access to a credit counselor); In re Petit-Louis, 344 B.R. 696 (Bankr. S.D. Fla. 2006) (debtor spoke only Creole and no Creole-speaking credit counselor was available); In re Bricksin, 346 B.R. 497 (Bankr. N.D. Cal. 2006) (debtors had set up a payment plan with a credit counseling agency and had been making payments but failed to file the certificate with their bankruptcy petition).

Free Public Access to all Pennsylvania Statutes - PS and Pa. C.S.

The complete unannotated version of Purdon's Pennsylvania Statutes is now available for free on the Internet. The Unofficial Purdon's Pennsylvania Statutes from West are now available directly from the link below or from the website of the Pennsylvania General Assembly.

Previously, no official statutes were available online. Then in July 2007 the General Assembly posted the official consolidated statutes for Pennsylvania on the Internet. Now the unofficial Purdon's Pennsylvania Statutes from West has replaced the official consolidated version.

Although Purdon’s is not an official publication of the Commonwealth of Pennsylvania, it is still probably the best resource to use when researching the laws of Pennsylvania by subject.West’s Purdon’s Pennsylvania Statutes, hosted by Westlaw, is easy to browse and can be searched using natural language or by typing a statute citation in quotations. This free version is not annotated and does not include court rules.

Court rules and state agency regulations are available on the Pennsylvania Code website http://www.pacode.com/, which is free and searchable.

Proposed regulations and court rules, as well as official notices, etc., are available in the Pennsylvania Bulletin http://www.pabulletin.com/, which is also free and searchable.

Unofficial Purdon's Pennsylvania Statutes from West

predatory mortgages

Parker v. Long Beach Mortgage Company - ED Pa. - January 3, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0015P.pdf

Although the court rejected the consumer claims of the plaintiffs, "relatively sophisticated borrowers" one of whom had a real estate license, there is some potentially useful language in the opinion.

The court noted that the dispute involved a "broker and four lending institutions [and] embodies many of the factors identified with predatory, subprime mortgage loans:[ n.1] an aggressive mortgage broker, no document loans, interest climbing to double-digit rates, escalating payments, balloon payments, prepayment penalties, and negative amortization. As distasteful as the practices may be, [n. 2] that odor of opportunism is not enough to save [the plaintiffs] from themselves."

n.1 - HUD-Treasury Joint Report http://www.hud.gov/library/bookshelf12/pressrel/treasrpt.pdf

n. 2 - The power to curb predatory practices lies either in consumer education or with Congress; as a court of limited jurisdiction, I may only enforce the laws as written, not as I would wish they were written.

evidence - immature witnesses

Commonwealth v. Davis - Superior Court - December 17, 2007

http://www.aopc.org/OpPosting/Superior/out/a29031_07.pdf

The determination of a witness's competency rests within the sound discretion of the trial court. The decision of the trial court will not be disturbed absent a clear abuse of that discretion. The "standard of review of rulings on the competency of witnesses is very limited indeed. "

In Pennsylvania, the general rule is that every witness is presumed to be competent to be a witness. However, young children must be examined for competency pursuant to the following test:

(1) The witness must be capable of expressing intelligent answers to questions;
(2) The witness must have been capable of observing the event to be testified about and have the ability to remember it; and,
(3) An awareness of the duty to tell the truth.

If there is an allegation of taint, the inquiry centers on the second element. The “appropriate venue” for investigation into such a claim is a competency hearing , centered on the inquiry into the minimal capacity of the witness to communicate, to observe an event and accurately recall that observation, and to understand the necessity to speak the truth.

Pennsylvania courts have recognized that an immature witness’s testimony can be tainted by the inquiries of adults. In that instance, the core belief underlying the theory of taint is that a child's memory is peculiarly susceptible to suggestibility so that when called to testify a child may have difficulty distinguishing fact from fantasy. Taint is the implantation of false memories or the distortion of real memories caused by interview techniques of law enforcement, social service personnel, and other interested adults, that are so unduly suggestive and coercive as to infect the memory of the child, rendering that child incompetent to testify.

The capacity of young children to testify has always been a concern, since immaturity can impact a child's ability to meet the minimal legal requirements of competency. Common experience informs us that children are, by their very essence, fanciful creatures who have difficulty distinguishing fantasy from reality; who when asked a question want to give the “right” answer, the answer that pleases the interrogator; who are subject to repeat ideas placed in their heads by others; and who have limited capacity for accurate memory.

In order to trigger an investigation of competency on the issue of taint, the moving party must show some evidence of taint. Once some evidence of taint is presented, the competency hearing must be expanded to explore this specific question. During the hearing the party alleging taint bears the burden of production of evidence of taint and the burden of persuasion to show taint by clear and convincing evidence. Pennsylvania has always maintained that since competency is the presumption, the moving party must carry the burden of overcoming that presumption .