http://edocket.access.gpo.gov/2008/pdf/E8-10779.pdf
SUMMARY: The Department of Veterans Affairs (VA) is amending its regulations governing the representation of claimants for veterans benefits in order to implement provisions of the Veterans Benefits, Health Care, and Information Technology Act of 2006, and to reorganize and clarify existing regulations.
As amended, the regulations establish the procedures and rules necessary for VA to facilitate the paid representation of claimants by accredited agents and attorneys after a Notice of Disagreement has been filed with respect to a case.
The purpose of these regulations is to fulfill Congress’ direction that agents and attorneys may be paid for services rendered after a Notice of Disagreement is filed with respect to a decision by an agency of original jurisdiction while ensuring that claimants for veterans benefits have responsible, qualified representation.
DATES: Effective Date: The final rule is effective June 23, 2008.
Thursday, May 22, 2008
Tuesday, May 20, 2008
social security - Ticket to Work and Self-Sufficiency Program - amendments
http://edocket.access.gpo.gov/2008/pdf/E8-10879.pdf
SUMMARY: We are revising our regulations for the Ticket to Work and Self-Sufficiency Program (Ticket to Work program), which was authorized by the Ticket to Work and Work Incentives Improvement Act of 1999.
The Ticket to Work program provides Social Security Disability Insurance and disabled Supplemental Security Income beneficiaries expanded options for access to employment services, vocational rehabilitation services, and other support services.
We are revising our prior rules to improve the overall effectiveness of the program to maximize the economic self-sufficiency of beneficiaries through work opportunities.
We have based these revisions on our projections of the future direction of the Ticket to Work program, our experience using the prior rules, and recommendations made by commenters on the program.
DATES: These final rules are effective July 21, 2008.
SUMMARY: We are revising our regulations for the Ticket to Work and Self-Sufficiency Program (Ticket to Work program), which was authorized by the Ticket to Work and Work Incentives Improvement Act of 1999.
The Ticket to Work program provides Social Security Disability Insurance and disabled Supplemental Security Income beneficiaries expanded options for access to employment services, vocational rehabilitation services, and other support services.
We are revising our prior rules to improve the overall effectiveness of the program to maximize the economic self-sufficiency of beneficiaries through work opportunities.
We have based these revisions on our projections of the future direction of the Ticket to Work program, our experience using the prior rules, and recommendations made by commenters on the program.
DATES: These final rules are effective July 21, 2008.
Monday, May 19, 2008
education - free eduction - child support is not "compensation"
Velazquez v. East Stroudsburg School District - Commonwealth Court - May 19, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1530CD07_5-19-08.pdf
Under 24 P.S. 13-1302 and 22 Pa. Code 11.19, a child has a right to attend school without payment of tuition in the district in which his custodial grandmother lives, despite grandmother's receipt of court-ordered support from one of his parents.
The child had lived with his grandmother for most of his life. The child's father was incarcerated and the mother was living in North Carolina or Florida. The grandmother received public assistance and was required to seek support from the parents. That support was not "compensation" for maintaining the child. Despite the receipt of support, the grandmother was "supporting the child gratis as if it were [her] own."
The trial court "mischaracterized the child support payments received by [the grandmother] as compensation to reach its erroneous conclusion that she did not support the child gratis as if he were her own child. Parents are liable for support of their children who are unemancipated and 18 years of age or younger, 23 Pa. C.S. §4321(2), and parents must provide for reasonable expenses of raising their children....The order imposed against the child's mother was for payment of child support to fulfill her obligation to provide child care expenses for the child, not to compensate the grandmother for her services."
Furthermore, grandmother was required to seek child support from the parents under 55 Pa. Code §187.23(b)....Her receipt of public assistance is not deemed personal compensation or gain, see 22 Pa. Code §11.19(a), and it would be absurd to conclude that the child support payments represent personal compensation when she was required to seek the payments in order to receive public assistance.
The case sub judice is clearly distinguishable from Brenner ex rel. Johnson v. West Shore School District, 780 A.2d 726 (Pa. Cmwlth. 2001). Unlike the parents in Brenner, the child's parents are not involved in any of the child's daily needs, and his mother provides only minimal child support. The father is incarcerated, and his mother resides out of state. The grandmother is the child's sole caregiver and provides all of his daily needs. She continuously supports him throughout the year, not merely during the school term, and she assumes all responsibilities for meeting school requirements and for making education-related decisions in the absence of his parents....The Brenner holding, therefore, does not support the School District's position.
The purpose of Section 1302 of the School Code is to prevent district 11 shopping....The evidence fails to establish, and the School District does not suggest, that grandmother was engaged in district shopping when she sought to re-enroll Jher grandson in the School District. Because grandmother established the child's entitlement to receive free school privileges in the School District, the Court concludes that the trial court committed an error of law and accordingly reverses its order.
This case was litigated by the Education Law Center in Philadelphia http://www.elc-pa.org/
http://www.courts.state.pa.us/OpPosting/CWealth/out/1530CD07_5-19-08.pdf
Under 24 P.S. 13-1302 and 22 Pa. Code 11.19, a child has a right to attend school without payment of tuition in the district in which his custodial grandmother lives, despite grandmother's receipt of court-ordered support from one of his parents.
The child had lived with his grandmother for most of his life. The child's father was incarcerated and the mother was living in North Carolina or Florida. The grandmother received public assistance and was required to seek support from the parents. That support was not "compensation" for maintaining the child. Despite the receipt of support, the grandmother was "supporting the child gratis as if it were [her] own."
The trial court "mischaracterized the child support payments received by [the grandmother] as compensation to reach its erroneous conclusion that she did not support the child gratis as if he were her own child. Parents are liable for support of their children who are unemancipated and 18 years of age or younger, 23 Pa. C.S. §4321(2), and parents must provide for reasonable expenses of raising their children....The order imposed against the child's mother was for payment of child support to fulfill her obligation to provide child care expenses for the child, not to compensate the grandmother for her services."
Furthermore, grandmother was required to seek child support from the parents under 55 Pa. Code §187.23(b)....Her receipt of public assistance is not deemed personal compensation or gain, see 22 Pa. Code §11.19(a), and it would be absurd to conclude that the child support payments represent personal compensation when she was required to seek the payments in order to receive public assistance.
The case sub judice is clearly distinguishable from Brenner ex rel. Johnson v. West Shore School District, 780 A.2d 726 (Pa. Cmwlth. 2001). Unlike the parents in Brenner, the child's parents are not involved in any of the child's daily needs, and his mother provides only minimal child support. The father is incarcerated, and his mother resides out of state. The grandmother is the child's sole caregiver and provides all of his daily needs. She continuously supports him throughout the year, not merely during the school term, and she assumes all responsibilities for meeting school requirements and for making education-related decisions in the absence of his parents....The Brenner holding, therefore, does not support the School District's position.
The purpose of Section 1302 of the School Code is to prevent district 11 shopping....The evidence fails to establish, and the School District does not suggest, that grandmother was engaged in district shopping when she sought to re-enroll Jher grandson in the School District. Because grandmother established the child's entitlement to receive free school privileges in the School District, the Court concludes that the trial court committed an error of law and accordingly reverses its order.
This case was litigated by the Education Law Center in Philadelphia http://www.elc-pa.org/
admin. law - impartial tribunal - right of expression - state constitution
Day v. Civil Service Commission - Commonwealth Court - May 19, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/550CD05_5-19-08.pdf
Police officer was dismissed after publicly criticizing fellow officers, contrary toi departmental regulations. The court upheld the civil service decision to dismiss the officer.
due process - impartial tribunal - state constitution
While rejecting his claim on the facts, the court recognized that under Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), due process is violated where prosecutorial and adjudicatory functions are commingled, and that "the due process rights of Pennsylvania citizens are broader than those afforded by the U.S. Constitution."
This was clarified in Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 538 Pa. 276, 648 A.2d 304 (1994), where the court said that: [T]he form of impermissible “appearance” of bias and partiality proscribed in Lyness must clearly be one that arises from an actual environment of commingled functions. Given the nature and constraints of our various governmental bodies, the question of due process reasonably involves an inquiry into the nature of the process actually provided. Id., 538 Pa. at 281-282, 648 A.2d at 307." However, the court found "no evidence whatsoever of a commingling of functions" in the case, "not even an appearance of impropriety."
right of expression - state constitution
A person's free speech rights under Article 1, Section 7 of Pennsylvania Constitution are "broader free expression rights than does the federal constitution. Pap’s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591 (2002). Notwithstanding this broader penumbra, Pennsylvania law allows an employer to implement a chain of command policy to regulate the time, manner, and place of expression....We must remember that speech can also constitute conduct, and an employee’s conduct, in the workplace, may be regulated by the employer. Fuller v. Borough of Waynesburg, 503 A.2d 1031 (Pa. Cmwlth. 1986)...."
In this case, the "department’s regulation, which prohibited criticism of the department made to the public rather than to the appropriate supervisory personnel, was not constitutionally overbroad. Id., at 1033, n.4. The chain of command policy regulating procedures to follow when making complaints of improper conduct by fellow officers and superiors is necessary for the orderly and efficient operation of paramilitary organizations, such as a police department."
http://www.courts.state.pa.us/OpPosting/CWealth/out/550CD05_5-19-08.pdf
Police officer was dismissed after publicly criticizing fellow officers, contrary toi departmental regulations. The court upheld the civil service decision to dismiss the officer.
due process - impartial tribunal - state constitution
While rejecting his claim on the facts, the court recognized that under Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), due process is violated where prosecutorial and adjudicatory functions are commingled, and that "the due process rights of Pennsylvania citizens are broader than those afforded by the U.S. Constitution."
This was clarified in Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 538 Pa. 276, 648 A.2d 304 (1994), where the court said that: [T]he form of impermissible “appearance” of bias and partiality proscribed in Lyness must clearly be one that arises from an actual environment of commingled functions. Given the nature and constraints of our various governmental bodies, the question of due process reasonably involves an inquiry into the nature of the process actually provided. Id., 538 Pa. at 281-282, 648 A.2d at 307." However, the court found "no evidence whatsoever of a commingling of functions" in the case, "not even an appearance of impropriety."
right of expression - state constitution
A person's free speech rights under Article 1, Section 7 of Pennsylvania Constitution are "broader free expression rights than does the federal constitution. Pap’s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591 (2002). Notwithstanding this broader penumbra, Pennsylvania law allows an employer to implement a chain of command policy to regulate the time, manner, and place of expression....We must remember that speech can also constitute conduct, and an employee’s conduct, in the workplace, may be regulated by the employer. Fuller v. Borough of Waynesburg, 503 A.2d 1031 (Pa. Cmwlth. 1986)...."
In this case, the "department’s regulation, which prohibited criticism of the department made to the public rather than to the appropriate supervisory personnel, was not constitutionally overbroad. Id., at 1033, n.4. The chain of command policy regulating procedures to follow when making complaints of improper conduct by fellow officers and superiors is necessary for the orderly and efficient operation of paramilitary organizations, such as a police department."
consumer - credit cards - bank overdrafts - proposed rules
http://edocket.access.gpo.gov/2008/pdf/E8-10247.pdf
SUMMARY: The Federal Reserve Board, Office of Thrift Savings, and National Credit Union Administration (collectively, the Agencies) are proposing to exercise their authority under section 5(a) of the Federal Trade Commission Act to prohibit unfair or deceptive acts or practices.
The proposed rule would prohibit institutions from engaging in certain acts or practices in connection with consumer credit cards accounts and overdraft services for deposit accounts.
This proposal evolved from the Board’s June 2007 Notice of Proposed Rule under the Truth in Lending Act and OTS’s August 2007 Advance Notice of Proposed Rulemaking under the Federal Trade Commission Act.
The proposed rule relates to other Board proposals under the Truth in Lending Act and the Truth in Savings Act, which are published elsewhere in today’s Federal Register.
DATES: Comments must be received on or before August 4, 2008.
SUMMARY: The Federal Reserve Board, Office of Thrift Savings, and National Credit Union Administration (collectively, the Agencies) are proposing to exercise their authority under section 5(a) of the Federal Trade Commission Act to prohibit unfair or deceptive acts or practices.
The proposed rule would prohibit institutions from engaging in certain acts or practices in connection with consumer credit cards accounts and overdraft services for deposit accounts.
This proposal evolved from the Board’s June 2007 Notice of Proposed Rule under the Truth in Lending Act and OTS’s August 2007 Advance Notice of Proposed Rulemaking under the Federal Trade Commission Act.
The proposed rule relates to other Board proposals under the Truth in Lending Act and the Truth in Savings Act, which are published elsewhere in today’s Federal Register.
DATES: Comments must be received on or before August 4, 2008.
Truth in Savings Act- overdrafts - proposed rule
http://edocket.access.gpo.gov/2008/pdf/E8-10243.pdf
SUMMARY: The Federal Reserve Board (Board) proposes to amend Regulation DD, which implements the Truth in Savings Act, and the staff commentary to the regulation, to provide additional disclosures about account terms and costs associated with overdrafts.
The proposed amendments would set forth content and timing requirements for a notice to consumers about any right to opt out of an institution’s overdraft service.
Requirements for disclosing overdraft fees on periodic statements would be expanded to apply to all institutions and not solely to institutions that promote the payment of overdrafts.
The proposed amendments also address balance disclosures provided in response to balance inquiries from consumers.
DATES: Comments must be received on or before July 18, 2008.
SUMMARY: The Federal Reserve Board (Board) proposes to amend Regulation DD, which implements the Truth in Savings Act, and the staff commentary to the regulation, to provide additional disclosures about account terms and costs associated with overdrafts.
The proposed amendments would set forth content and timing requirements for a notice to consumers about any right to opt out of an institution’s overdraft service.
Requirements for disclosing overdraft fees on periodic statements would be expanded to apply to all institutions and not solely to institutions that promote the payment of overdrafts.
The proposed amendments also address balance disclosures provided in response to balance inquiries from consumers.
DATES: Comments must be received on or before July 18, 2008.
FTC - FCRA - risk-based pricing - proposed rule
http://edocket.access.gpo.gov/2008/pdf/E8-10640.pdf
SUMMARY: The Board and the Commission are publishing for comment proposed rules to implement the risk-based pricing provisions in section 311 of the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), which amends the Fair Credit Reporting Act (FCRA).
The proposed rules generally require a creditor to provide a risk-based pricing notice to a consumer when the creditor uses a consumer report to grant or extend credit to the consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that creditor.
The proposed rules also provide for two alternative means by which creditors can determine when they are offering credit on material terms that are materially less favorable.
The proposed rules also include certain exceptions to the general rule, including exceptions for creditors that provide a consumer with a disclosure of the consumer’s credit score in conjunction with additional information that provides context for the credit score disclosure.
DATES: Comments must be received on or before August 18, 2008.
SUMMARY: The Board and the Commission are publishing for comment proposed rules to implement the risk-based pricing provisions in section 311 of the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), which amends the Fair Credit Reporting Act (FCRA).
The proposed rules generally require a creditor to provide a risk-based pricing notice to a consumer when the creditor uses a consumer report to grant or extend credit to the consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that creditor.
The proposed rules also provide for two alternative means by which creditors can determine when they are offering credit on material terms that are materially less favorable.
The proposed rules also include certain exceptions to the general rule, including exceptions for creditors that provide a consumer with a disclosure of the consumer’s credit score in conjunction with additional information that provides context for the credit score disclosure.
DATES: Comments must be received on or before August 18, 2008.
Truth in Lending - credit cards - proposed rule
http://edocket.access.gpo.gov/2008/pdf/E8-10242.pdf
SUMMARY: On June 14, 2007, the Board published proposed amendments to Regulation Z, which implements the Truth in Lending Act (TILA), and to the staff commentary to the regulation, following a comprehensive review of TILA’s rules for open-end (revolving) credit that is not home-secured.
The proposed revisions addressed disclosures provided with credit card applications and solicitations, at account-opening, on periodic statements, when terms are changed on an account, and in advertisements.
The Board is seeking comment on a limited number of additional revisions to the regulation and commentary. New proposed amendments address creditors’ responsibilities to establish reasonable instructions for receiving timely payments and when a due date falls on a weekend or holiday.
Creditors’ responsibilities when investigating a claim of unauthorized transactions or an allegation of a billing error are also addressed.
Advertisements for deferred interest plans would be required to provide additional information about how interest could be imposed.
Comments submitted to the Board in response to the June 2007 proposed revisions remain under consideration by the Board and need not be submitted a second time.
DATES: Comments must be received on or before July 18, 2008.
SUMMARY: On June 14, 2007, the Board published proposed amendments to Regulation Z, which implements the Truth in Lending Act (TILA), and to the staff commentary to the regulation, following a comprehensive review of TILA’s rules for open-end (revolving) credit that is not home-secured.
The proposed revisions addressed disclosures provided with credit card applications and solicitations, at account-opening, on periodic statements, when terms are changed on an account, and in advertisements.
The Board is seeking comment on a limited number of additional revisions to the regulation and commentary. New proposed amendments address creditors’ responsibilities to establish reasonable instructions for receiving timely payments and when a due date falls on a weekend or holiday.
Creditors’ responsibilities when investigating a claim of unauthorized transactions or an allegation of a billing error are also addressed.
Advertisements for deferred interest plans would be required to provide additional information about how interest could be imposed.
Comments submitted to the Board in response to the June 2007 proposed revisions remain under consideration by the Board and need not be submitted a second time.
DATES: Comments must be received on or before July 18, 2008.
Friday, May 16, 2008
support - paternity - estoppel - right to hearing
Lebanon County CYW v. Wagner - Superior Court - May 14, 2008
http://www.phfa.org/consumers/homeowners/real.aspx
“[I]n any child support matter in which paternity is denied on the grounds of estoppel, the trial court must conduct a hearing on the issue of estoppel and determine whether the mother is estopped from pursuing her claim against the alleged father.” Freedman v. McCandless, 654 A.2d 529, 533 (Pa. 1995) (emphasis added).
“Only when the doctrine of estoppel does not apply will the mother be permitted to proceed with a paternity claim against a putative father with the aid of a blood test.” Jones v. Trojak, 634 A.2d 201, 206 (Pa. 1993) (citation omitted). Thus, it was improper for the trial court to order genetic tests without providing Appellant a hearing on the issue of estoppel.
The fact that the child was in the custod of the county CYS is of no moment. The agency stands in the shoes of the parent and is bound by the parent's conduct concerning paternity.
http://www.phfa.org/consumers/homeowners/real.aspx
“[I]n any child support matter in which paternity is denied on the grounds of estoppel, the trial court must conduct a hearing on the issue of estoppel and determine whether the mother is estopped from pursuing her claim against the alleged father.” Freedman v. McCandless, 654 A.2d 529, 533 (Pa. 1995) (emphasis added).
“Only when the doctrine of estoppel does not apply will the mother be permitted to proceed with a paternity claim against a putative father with the aid of a blood test.” Jones v. Trojak, 634 A.2d 201, 206 (Pa. 1993) (citation omitted). Thus, it was improper for the trial court to order genetic tests without providing Appellant a hearing on the issue of estoppel.
The fact that the child was in the custod of the county CYS is of no moment. The agency stands in the shoes of the parent and is bound by the parent's conduct concerning paternity.
Medicare - proposed revisions to Medicare Advantage and prescription drug benefit program
http://edocket.access.gpo.gov/2008/pdf/08-1244.pdf
SUMMARY: This proposed rule would make revisions to the Medicare Advantage (MA) program (Part C) and prescription drug benefit program (Part D).
The regulation contains new regulatory provisions regarding special needs plans, medical savings accounts (MSA) plans, and cost-sharing for dual eligible enrollees in the MA program, the prescription drug payment and novation processes in the Part D program, and the enrollment, appeals, and marketing processes for both programs.
We are proposing these changes based on lessons learned since 2006, the initial year of the prescription drug program and the revised MA program.
DATES: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on July 15, 2008.
SUMMARY: This proposed rule would make revisions to the Medicare Advantage (MA) program (Part C) and prescription drug benefit program (Part D).
The regulation contains new regulatory provisions regarding special needs plans, medical savings accounts (MSA) plans, and cost-sharing for dual eligible enrollees in the MA program, the prescription drug payment and novation processes in the Part D program, and the enrollment, appeals, and marketing processes for both programs.
We are proposing these changes based on lessons learned since 2006, the initial year of the prescription drug program and the revised MA program.
DATES: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on July 15, 2008.
Thursday, May 15, 2008
consumer - Fair Credit Reporting Act - degree of accuracy - causation of damages
Krajewski v. American Honda Finance Corp. and Trans Union, LLC - ED Pa. - May 2008
http://www.paed.uscourts.gov/documents/opinions/08D0495P.pdf
Plaintiff and her ex-husband bought a car, which got repossessed by AHFC after their adult son was arrested and the car, in the son's possession at the time, was seized by the police under the Controlled Substances law. AHFC then reported this to Trans Union, a credit reporting agency (CRA), which in turn marked plaintiff's consumer report as "RPO" meaning repossession.
Plaintiff disputed the characterization of "repossession," alleging that she had never missed any payments and that her credit report should not reflect a repo. Plaintiff tried to get a loan to pay the debt and redeem the car and alleges that she could not because of the "repossession" notation on the credit report. She filed two notices of dispute with the CRA.
Plaintiff sued AHFC and Trans Union on multiple causes of action. AHFC's motion for summary judgment was declined on most claims, because of disputed factual and legal issues, included whether plaintiff "exposed" the car to seizure, as prohibited in the contract.
Plaintiff's claims agains Trans Union included the following issues.
Fair Credit Reporting Act - 15 USC 1681 et seq. - technical accuracy v. maximum possible accuracy
Under sec. 1681e(b) of the FCRA, "[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”
To prevail on a claim of negligent failure to comply with § 1681e(b), a plaintiff must show the following four elements: (1) that “inaccurate information was included in a consumer’s credit report,” (2) that “the inaccuracy was due to defendant’s failure to follow reasonable procedures to assure maximum possible accuracy,” (3) that “the consumer suffered injury,” and (4) that “the consumer’s injury was caused by the inclusion of the inaccurate entry”....Trans Union argues that it is entitled to summary judgment because the information was accurate, meaning that plaintiff cannot show the first element.
A plaintiff cannot sustain a claim to enforce § 1681e(b) without showing an inaccuracy in her credit report. Whether the accuracy requirement of § 1681e(b) merely requires technical accuracy or requires something more has not been clarified by either the United States Supreme Court or the Third Circuit. Plaintiff urges this court to follow the D.C. Circuit’s reasoning in Koropoulos v. The Credit Bureau, Inc., 734 F.2d 37 (D.C. Cir. 1984), which rejected the technical accuracy defense in the context of a consumer reporting agency defendant. The court denied summary judgment for the consumer reporting agency where “there is a genuine issue of fact as to whether the report was sufficiently misleading so as to raise the issue of whether [the defendant’s] procedures for assuring ‘maximum possible accuracy’ were reasonable.” Id. at 42.
In rejecting the technical accuracy defense as applied to consumer reporting agencies, the D.C. Circuit based its conclusion on the FCRA’s requirement that consumer reporting agencies employ reasonable procedures to assure more than mere accuracy....The FCRA provides: “Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b) (emphasis added). District courts in the Eastern District of Pennsylvania have applied Koropoulos....I, too, will follow Koropoulos and deny summary judgment if “there is a genuine issue of material fact as to whether the report was . . . misleading.” 734 F.2d at 42.
Whether the credit report in the instant case is accurate and not misleading depends on the meaning of “repossession” as used in the report. “Repossession” is not defined by federal or Pennsylvania statute. It is defined by the dictionary as “the act of resuming possession of property when the purchaser fails to keep up payments on it.” Webster’s Third New International Dictionary 1926 (1981) (emphasis added). Similarly, one dictionary definition of the verb “repossess” is “to resume possession of (an item purchased on installment) in default of the payment of installments due.” Id. (emphasis added). Given these definitions, and applying the Koropoulos approach, a reasonable jury could conclude that Trans Union’s reporting was so misleading as to be inaccurate. Therefore, I will not grant Trans Union’s motion for summary judgment on the basis of the alleged accuracy of the report.
causation
Trans Union asserts in the alternative that “Trans Union is entitled to summary judgment on [p]laintiff’s claims of damages relating to credit denials in August 2006 because these allegedly occurred prior to her disputes”....Trans Union also asserts that “there is no evidence that an actual recipient of [p]laintiff’s consumer report was misled or would have acted on [p]laintiff’s application for credit differently if the reason why the repossession occurred had been included in [p]laintiff’s report.”
Plaintiff argues that, in the context of damages, Trans Union erroneously conflates § 1681i(a)’s reinvestigation requirement with § 1681e(b)’s reasonable procedures requirement. I agree. Section 1681 relates to “reasonable procedures to assure maximum possible accuracy” in reporting generally, 15 U.S.C. § 1681e(b), and so the time at which a consumer disputes the information is irrelevant to the § 1681e(b) analysis.
With respect to causation, a plaintiff need not “satisfy his burden only by introducing direct evidence that consideration of the inaccurate entry was crucial to the decision to deny credit”...Instead, a plaintiff need only “produce evidence from which a reasonable trier of fact could infer that the inaccurate entry was a ‘substantial factor’ that brought about the denial of credit.”
http://www.paed.uscourts.gov/documents/opinions/08D0495P.pdf
Plaintiff and her ex-husband bought a car, which got repossessed by AHFC after their adult son was arrested and the car, in the son's possession at the time, was seized by the police under the Controlled Substances law. AHFC then reported this to Trans Union, a credit reporting agency (CRA), which in turn marked plaintiff's consumer report as "RPO" meaning repossession.
Plaintiff disputed the characterization of "repossession," alleging that she had never missed any payments and that her credit report should not reflect a repo. Plaintiff tried to get a loan to pay the debt and redeem the car and alleges that she could not because of the "repossession" notation on the credit report. She filed two notices of dispute with the CRA.
Plaintiff sued AHFC and Trans Union on multiple causes of action. AHFC's motion for summary judgment was declined on most claims, because of disputed factual and legal issues, included whether plaintiff "exposed" the car to seizure, as prohibited in the contract.
Plaintiff's claims agains Trans Union included the following issues.
Fair Credit Reporting Act - 15 USC 1681 et seq. - technical accuracy v. maximum possible accuracy
Under sec. 1681e(b) of the FCRA, "[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”
To prevail on a claim of negligent failure to comply with § 1681e(b), a plaintiff must show the following four elements: (1) that “inaccurate information was included in a consumer’s credit report,” (2) that “the inaccuracy was due to defendant’s failure to follow reasonable procedures to assure maximum possible accuracy,” (3) that “the consumer suffered injury,” and (4) that “the consumer’s injury was caused by the inclusion of the inaccurate entry”....Trans Union argues that it is entitled to summary judgment because the information was accurate, meaning that plaintiff cannot show the first element.
A plaintiff cannot sustain a claim to enforce § 1681e(b) without showing an inaccuracy in her credit report. Whether the accuracy requirement of § 1681e(b) merely requires technical accuracy or requires something more has not been clarified by either the United States Supreme Court or the Third Circuit. Plaintiff urges this court to follow the D.C. Circuit’s reasoning in Koropoulos v. The Credit Bureau, Inc., 734 F.2d 37 (D.C. Cir. 1984), which rejected the technical accuracy defense in the context of a consumer reporting agency defendant. The court denied summary judgment for the consumer reporting agency where “there is a genuine issue of fact as to whether the report was sufficiently misleading so as to raise the issue of whether [the defendant’s] procedures for assuring ‘maximum possible accuracy’ were reasonable.” Id. at 42.
In rejecting the technical accuracy defense as applied to consumer reporting agencies, the D.C. Circuit based its conclusion on the FCRA’s requirement that consumer reporting agencies employ reasonable procedures to assure more than mere accuracy....The FCRA provides: “Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b) (emphasis added). District courts in the Eastern District of Pennsylvania have applied Koropoulos....I, too, will follow Koropoulos and deny summary judgment if “there is a genuine issue of material fact as to whether the report was . . . misleading.” 734 F.2d at 42.
Whether the credit report in the instant case is accurate and not misleading depends on the meaning of “repossession” as used in the report. “Repossession” is not defined by federal or Pennsylvania statute. It is defined by the dictionary as “the act of resuming possession of property when the purchaser fails to keep up payments on it.” Webster’s Third New International Dictionary 1926 (1981) (emphasis added). Similarly, one dictionary definition of the verb “repossess” is “to resume possession of (an item purchased on installment) in default of the payment of installments due.” Id. (emphasis added). Given these definitions, and applying the Koropoulos approach, a reasonable jury could conclude that Trans Union’s reporting was so misleading as to be inaccurate. Therefore, I will not grant Trans Union’s motion for summary judgment on the basis of the alleged accuracy of the report.
causation
Trans Union asserts in the alternative that “Trans Union is entitled to summary judgment on [p]laintiff’s claims of damages relating to credit denials in August 2006 because these allegedly occurred prior to her disputes”....Trans Union also asserts that “there is no evidence that an actual recipient of [p]laintiff’s consumer report was misled or would have acted on [p]laintiff’s application for credit differently if the reason why the repossession occurred had been included in [p]laintiff’s report.”
Plaintiff argues that, in the context of damages, Trans Union erroneously conflates § 1681i(a)’s reinvestigation requirement with § 1681e(b)’s reasonable procedures requirement. I agree. Section 1681 relates to “reasonable procedures to assure maximum possible accuracy” in reporting generally, 15 U.S.C. § 1681e(b), and so the time at which a consumer disputes the information is irrelevant to the § 1681e(b) analysis.
With respect to causation, a plaintiff need not “satisfy his burden only by introducing direct evidence that consideration of the inaccurate entry was crucial to the decision to deny credit”...Instead, a plaintiff need only “produce evidence from which a reasonable trier of fact could infer that the inaccurate entry was a ‘substantial factor’ that brought about the denial of credit.”
federal courts - 11th Amendment - statute of limitations - continuing violation
Larsen v. State Employee Retirement System - MD Pa. - May 15, 2008
http://www.pamd.uscourts.gov/opinions/jones/07v1838.pdf
In this § 1983 action by a former state supreme court justice concerning his pension, the court discuss two issues of general interest -- the Eleventh Amendment and the continuing-violations doctrine, as applied to the issue of the statute of limitations.
A. Eleventh Amendment Immunity
The Eleventh Amendment “has been interpreted to make states generally immune from suit by private parties in federal court.”... “This immunity extends to state agencies and departments.”...Eleventh Amendment immunity also extends to state officials sued in their official capacity because in such a case the state is the real party in interest.... Suits against state officials in their personal or individual capacity, however, are not barred by the Eleventh Amendment.
“Eleventh Amendment immunity is, however, subject to three primary exceptions: (1) congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers for prospective injunctive and declaratory relief to end an ongoing violation of federal law.”
Under the third exception, the doctrine of Ex parte Young, 209 U.S. 123 (1908), a suit against a state officer seeking prospective relief designed to end a continuing violation of federal law is not barred by the Eleventh Amendment under the theory that the action is not against the state because the alleged violation of federal law strips the officer of his official authority....Thus, for the doctrine to apply, the plaintiff must allege an ongoing violation of federal law....In addition, “[t]he relief sought must be prospective, declaratory, or injunctive relief governing an officer’s future conduct and cannot be retrospective, such as money damages.”
In determining whether the request relief falls within the Ex parte Young exception, a court must “look to the substance rather than the form of the relief sought.”....The doctrine applies only against state officials sued in their official capacities, not against states or state agencies....Further, “Young does not apply if, although the action is nominally against individual officers, the state is the real, substantial party in interest and the suit in fact is against the state.” ....“In determining whether the Ex parte Young doctrine avoids an Eleventh Amendment bar, the Supreme Court has made it quite clear that ‘a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’” The Supreme Court has also recognized, however, that “[f]or Eleventh Amendment purposes, the line between permitted and prohibited suits will often be indistinct.”
B. Statute of Limitations - the continuing-violations doctrine
“Actions brought under 42 U.S.C. § 1983 are governed by the personal injury statute of limitations of the state in which the cause of action accrued.”... The applicable Pennsylvania statute of limitations for personal injury actions is two years....
Although the applicable statute of limitations is borrowed from state law, “the accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law.” ... Rather, accrual of a § 1983 cause of action is “governed by federal rules conforming in general to common-law tort principles. Under those principles, it is the standard rule that accrual occurs when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief.”....Generally, therefore, “[a] section 1983 cause of action accrues when the plaintiff knew or should have known of the injury upon which its action is based.”....
Under Pennsylvania law, the limitations period is computed from the time an action accrues....A cause of action accrues when the plaintiff could have first maintained the action to a successful conclusion, and therefore the statute of limitations begins to run as soon as the right to institute and maintain a suit arises....Generally, this right arises when the plaintiff’s injury is inflicted....
[T]he untimeliness of the [plaintiff's] claims is apparent from the face of the complaint....[Plaintiff] argues, however, that his claims are saved from the statute of limitations by the continuing violations doctrine. This doctrine is an “equitable exception to the timely filing requirement”....Under this doctrine, “when a defendant’s conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred”....The doctrine is a narrow exception to the statute of limitations that is frequently invoked but rarely found.
“To establish that a claim falls within the continuing violations theory, the plaintiff must do two things. First, he must demonstrate that at least one act occurred within the filing period: The crucial question is whether any present violation exists. Next, the plaintiff must establish that the [alleged wrong] is more than the occurrence of isolated or sporadic acts”....
In examining this second step, “courts should consider at least three factors: (1) subject matter – whether the violations constitute the same type ..., tending to connect them in a continuing violation; (2) frequency – whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence – whether the act had a degree of permanence which should trigger the plaintiff’s awareness of and duty to assert his/her rights”....The third factor, permanence, is the most important....In considering this third factor, the court “must consider the policy rationale behind the statute of limitations. That is, the continuing violations doctrine should not provide a means for relieving plaintiffs from their duty to exercise reasonable diligence in pursuing their claims”....The burden is on the plaintiff to demonstrate that the continuing violations doctrine applies to toll the statute of limitations....
http://www.pamd.uscourts.gov/opinions/jones/07v1838.pdf
In this § 1983 action by a former state supreme court justice concerning his pension, the court discuss two issues of general interest -- the Eleventh Amendment and the continuing-violations doctrine, as applied to the issue of the statute of limitations.
A. Eleventh Amendment Immunity
The Eleventh Amendment “has been interpreted to make states generally immune from suit by private parties in federal court.”... “This immunity extends to state agencies and departments.”...Eleventh Amendment immunity also extends to state officials sued in their official capacity because in such a case the state is the real party in interest.... Suits against state officials in their personal or individual capacity, however, are not barred by the Eleventh Amendment.
“Eleventh Amendment immunity is, however, subject to three primary exceptions: (1) congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers for prospective injunctive and declaratory relief to end an ongoing violation of federal law.”
Under the third exception, the doctrine of Ex parte Young, 209 U.S. 123 (1908), a suit against a state officer seeking prospective relief designed to end a continuing violation of federal law is not barred by the Eleventh Amendment under the theory that the action is not against the state because the alleged violation of federal law strips the officer of his official authority....Thus, for the doctrine to apply, the plaintiff must allege an ongoing violation of federal law....In addition, “[t]he relief sought must be prospective, declaratory, or injunctive relief governing an officer’s future conduct and cannot be retrospective, such as money damages.”
In determining whether the request relief falls within the Ex parte Young exception, a court must “look to the substance rather than the form of the relief sought.”....The doctrine applies only against state officials sued in their official capacities, not against states or state agencies....Further, “Young does not apply if, although the action is nominally against individual officers, the state is the real, substantial party in interest and the suit in fact is against the state.” ....“In determining whether the Ex parte Young doctrine avoids an Eleventh Amendment bar, the Supreme Court has made it quite clear that ‘a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’” The Supreme Court has also recognized, however, that “[f]or Eleventh Amendment purposes, the line between permitted and prohibited suits will often be indistinct.”
B. Statute of Limitations - the continuing-violations doctrine
“Actions brought under 42 U.S.C. § 1983 are governed by the personal injury statute of limitations of the state in which the cause of action accrued.”... The applicable Pennsylvania statute of limitations for personal injury actions is two years....
Although the applicable statute of limitations is borrowed from state law, “the accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law.” ... Rather, accrual of a § 1983 cause of action is “governed by federal rules conforming in general to common-law tort principles. Under those principles, it is the standard rule that accrual occurs when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief.”....Generally, therefore, “[a] section 1983 cause of action accrues when the plaintiff knew or should have known of the injury upon which its action is based.”....
Under Pennsylvania law, the limitations period is computed from the time an action accrues....A cause of action accrues when the plaintiff could have first maintained the action to a successful conclusion, and therefore the statute of limitations begins to run as soon as the right to institute and maintain a suit arises....Generally, this right arises when the plaintiff’s injury is inflicted....
[T]he untimeliness of the [plaintiff's] claims is apparent from the face of the complaint....[Plaintiff] argues, however, that his claims are saved from the statute of limitations by the continuing violations doctrine. This doctrine is an “equitable exception to the timely filing requirement”....Under this doctrine, “when a defendant’s conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred”....The doctrine is a narrow exception to the statute of limitations that is frequently invoked but rarely found.
“To establish that a claim falls within the continuing violations theory, the plaintiff must do two things. First, he must demonstrate that at least one act occurred within the filing period: The crucial question is whether any present violation exists. Next, the plaintiff must establish that the [alleged wrong] is more than the occurrence of isolated or sporadic acts”....
In examining this second step, “courts should consider at least three factors: (1) subject matter – whether the violations constitute the same type ..., tending to connect them in a continuing violation; (2) frequency – whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence – whether the act had a degree of permanence which should trigger the plaintiff’s awareness of and duty to assert his/her rights”....The third factor, permanence, is the most important....In considering this third factor, the court “must consider the policy rationale behind the statute of limitations. That is, the continuing violations doctrine should not provide a means for relieving plaintiffs from their duty to exercise reasonable diligence in pursuing their claims”....The burden is on the plaintiff to demonstrate that the continuing violations doctrine applies to toll the statute of limitations....
drivers license - refusal to take breath test - jurisidiction to arrest
Taylor v. Penn DOT - Commonwealth Court
http://www.courts.state.pa.us/OpPosting/CWealth/out/1406CD07_5-15-08.pdf
In order to suspend a licensee’s operating privileges pursuant to 75 Pa.C.S. §1547(b), DOT has the burden of proving the following:
1) the licensee was arrested for violating Section 3802;
2) by a police officer who had reasonable grounds to believe that the license was operating a vehicle while in violation of Section 3802;
3) that the licensee was requested to submit to a chemical test;
4) that the licensee refused to do so; and
5) that the police officer fulfilled the duty imposed by 75 Pa.C.S. §1547(b)(2) by advising the licensee that his operating privileges would be suspended if he refused to submit to chemical testing…. Quick v. Department of Transportation, Bureau of Driver Licensing, 915 A.2d 1268, 1270 (Pa. Cmwlth. 2007).
In McKinley v. Department of Transportation, Bureau of Driver Licensing, 576 Pa. 85, 838 A.2d 700 (2003), the Pennsylvania Supreme Court rejected this Court’s determination that a person could be considered a police officer, even if he was acting outside of his jurisdiction, as long as he was an “officer in fact,” i.e., authorized with the power to arrest in another jurisdiction. Instead, the Pennsylvania Supreme Court determined that a police officer acting outside of his jurisdiction lacked the ability to act as a police officer and would not be treated as such. McKinley, 576 Pa. at 94, 838 A.2d at 706.
As the arresting officer did not have the authority to act as a police officer, DOT has failed to establish that Licensee was arrested by a police officer who had reasonable grounds to believe Licensee was DUI. Thus, we conclude that the trial court did not err in granting Licensee’s appeal from the suspension of his operating privilege. Accordingly, the order of the trial court is affirmed
http://www.courts.state.pa.us/OpPosting/CWealth/out/1406CD07_5-15-08.pdf
In order to suspend a licensee’s operating privileges pursuant to 75 Pa.C.S. §1547(b), DOT has the burden of proving the following:
1) the licensee was arrested for violating Section 3802;
2) by a police officer who had reasonable grounds to believe that the license was operating a vehicle while in violation of Section 3802;
3) that the licensee was requested to submit to a chemical test;
4) that the licensee refused to do so; and
5) that the police officer fulfilled the duty imposed by 75 Pa.C.S. §1547(b)(2) by advising the licensee that his operating privileges would be suspended if he refused to submit to chemical testing…. Quick v. Department of Transportation, Bureau of Driver Licensing, 915 A.2d 1268, 1270 (Pa. Cmwlth. 2007).
In McKinley v. Department of Transportation, Bureau of Driver Licensing, 576 Pa. 85, 838 A.2d 700 (2003), the Pennsylvania Supreme Court rejected this Court’s determination that a person could be considered a police officer, even if he was acting outside of his jurisdiction, as long as he was an “officer in fact,” i.e., authorized with the power to arrest in another jurisdiction. Instead, the Pennsylvania Supreme Court determined that a police officer acting outside of his jurisdiction lacked the ability to act as a police officer and would not be treated as such. McKinley, 576 Pa. at 94, 838 A.2d at 706.
As the arresting officer did not have the authority to act as a police officer, DOT has failed to establish that Licensee was arrested by a police officer who had reasonable grounds to believe Licensee was DUI. Thus, we conclude that the trial court did not err in granting Licensee’s appeal from the suspension of his operating privilege. Accordingly, the order of the trial court is affirmed
Social Security - income - stepparent - deeming
http://edocket.access.gpo.gov/2008/pdf/E8-10800.pdf
SUMMARY: We are changing the Supplemental Security Income (SSI) parent-to-child deeming rules so that we no longer will consider the income and resources of a stepparent when an eligible child resides in the household with a stepparent, but that child’s natural or adoptive parent has permanently left the household.
These rules respond to a decision by the United States Court of Appeals for the Second Circuit, codified in Social Security Acquiescence Ruling (AR) 99– 1(2), and establish a uniform national policy. Also, we are making uniform the age [22] at which we consider someone to be a ‘‘child’’ in SSI program regulations and are making other minor clarifications to our rules.
The decision of the United States Court of Appeals for the Second Circuit in Florez on Behalf of Wallace v. Callahan, 156 F.3d 438 (2d Cir. 1998), held that 20 CFR 416.1101 creates a two-part test for determining whether a spouse, who lives with a child eligible for SSI, is an ineligible parent for deeming purposes under 20 CFR 416.1160: (1) The spouse must live with the natural or adoptive parent; and (2) the relationship must be as husband or wife, as further defined in 20 CFR 416.1806.
The rule adopts the court’s rationale and changes the SSI parent-to-child deeming rules so that SSA no longer will consider the income and resources of a stepparent when an eligible child resides in the household with a stepparent, but that child’s natural or adoptive parent has permanently left the household.
DATES: This final rule is effective on June 16, 2008.
SUMMARY: We are changing the Supplemental Security Income (SSI) parent-to-child deeming rules so that we no longer will consider the income and resources of a stepparent when an eligible child resides in the household with a stepparent, but that child’s natural or adoptive parent has permanently left the household.
These rules respond to a decision by the United States Court of Appeals for the Second Circuit, codified in Social Security Acquiescence Ruling (AR) 99– 1(2), and establish a uniform national policy. Also, we are making uniform the age [22] at which we consider someone to be a ‘‘child’’ in SSI program regulations and are making other minor clarifications to our rules.
The decision of the United States Court of Appeals for the Second Circuit in Florez on Behalf of Wallace v. Callahan, 156 F.3d 438 (2d Cir. 1998), held that 20 CFR 416.1101 creates a two-part test for determining whether a spouse, who lives with a child eligible for SSI, is an ineligible parent for deeming purposes under 20 CFR 416.1160: (1) The spouse must live with the natural or adoptive parent; and (2) the relationship must be as husband or wife, as further defined in 20 CFR 416.1806.
The rule adopts the court’s rationale and changes the SSI parent-to-child deeming rules so that SSA no longer will consider the income and resources of a stepparent when an eligible child resides in the household with a stepparent, but that child’s natural or adoptive parent has permanently left the household.
DATES: This final rule is effective on June 16, 2008.
Tuesday, May 13, 2008
UC - subpoenas - testimony material to outcome
Horton v. UCBR - May 12, 2008 - Commonwealth Court
http://www.courts.state.pa.us/OpPosting/CWealth/out/1815CD07_7-21-08.pdf
Claimant was fired when he refused to obey a superior's order about processing incoming orders. Claimant alleged that the employer vice-president would testify about company policy and would establish good cause for his refusal to obey the order and requested that the referee issue a subpoena. The referee refused and found claimant guilty of willful misconduct.
The court reversed and remanded. "Whether the failure to issue a subpoena to allow the vice-president to testify was harmless error is determined by whether his testimony would have been material to the outcome of the case. Hussey Copper Ltd. v. Unemployment Compensation Board of Review, 718 A.2d 894 (Pa. Cmwlth. 1998).
'Given that it was the vice-president not claimant's supervisor that terminated him and was in charge of the policy, the Referee’s failure to allow Claimant to subpoena the vice-president regarding the company policy on receiving merchandise, what the V.P. had told Claimant about that policy when he hired him, and whether he was required to follow the directives of the supervisor to ignore the policy was not harmless error because it took away his ability to establish “good cause” for not following the supervisor's directive. Because the V.P.'s testimony was material to deciding the case, it was not harmless error to refuse the subpoena
http://www.courts.state.pa.us/OpPosting/CWealth/out/1815CD07_7-21-08.pdf
Claimant was fired when he refused to obey a superior's order about processing incoming orders. Claimant alleged that the employer vice-president would testify about company policy and would establish good cause for his refusal to obey the order and requested that the referee issue a subpoena. The referee refused and found claimant guilty of willful misconduct.
The court reversed and remanded. "Whether the failure to issue a subpoena to allow the vice-president to testify was harmless error is determined by whether his testimony would have been material to the outcome of the case. Hussey Copper Ltd. v. Unemployment Compensation Board of Review, 718 A.2d 894 (Pa. Cmwlth. 1998).
'Given that it was the vice-president not claimant's supervisor that terminated him and was in charge of the policy, the Referee’s failure to allow Claimant to subpoena the vice-president regarding the company policy on receiving merchandise, what the V.P. had told Claimant about that policy when he hired him, and whether he was required to follow the directives of the supervisor to ignore the policy was not harmless error because it took away his ability to establish “good cause” for not following the supervisor's directive. Because the V.P.'s testimony was material to deciding the case, it was not harmless error to refuse the subpoena
Sunday, May 11, 2008
insurance - misrepresentation - void ab initio
Cummings v. American General Life Insurance Co. - ED Pa. - May 6, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0507P.pdf
Held: Misrepresentation about past drug use is a material representation that justifies insurer in declaring policy void ab initio. The policy contained a clause stating that applicant's information was true and that the insurer could reduce or deny a claim which the insurer had relied of, if it materially affected the company's acceptance of the risk.
Pennsylvania courts “have held that an insurance policy obtained by means of a material misrepresentation will, if challenged within the period of contestability, be declared void ab initio....Under Pennsylvania law an insurance policy is void for misrepresentation when the insurer establishes three elements: (1) that the representation was false; (2) that the insured knew that the representation was false when made or made it in bad faith; and (3) that the representation was material to the risk being insured.”
Courts applying Pennsylvania law have routinely held that misrepresentations regarding alcohol abuse are deemed to be made in bad faith as a matter of law and extended this holding to include misrepresentations regarding drug use. ... The Third Circuit Court of Appeals equates alcohol abuse and drug abuse in the same manner.
Under Pennsylvania law, a misrepresentation does not have to be related to the eventual claim for which benefits are sought in order to be “material” for legal purposes. A statement is material if it is relevant to the risk assumed, even if it is unrelated to the loss actually incurred.
Any “misrepresented fact is material if being disclosed to the insurer it would have caused it to refuse the risk altogether or to demand a higher premium.”
The undisputed facts here, together with long-standing governing law, lead to the conclusion that decedent's past drug use would have led the insurer to deny decedent's insurance coverage and, thus, is a material fact .
http://www.paed.uscourts.gov/documents/opinions/08D0507P.pdf
Held: Misrepresentation about past drug use is a material representation that justifies insurer in declaring policy void ab initio. The policy contained a clause stating that applicant's information was true and that the insurer could reduce or deny a claim which the insurer had relied of, if it materially affected the company's acceptance of the risk.
Pennsylvania courts “have held that an insurance policy obtained by means of a material misrepresentation will, if challenged within the period of contestability, be declared void ab initio....Under Pennsylvania law an insurance policy is void for misrepresentation when the insurer establishes three elements: (1) that the representation was false; (2) that the insured knew that the representation was false when made or made it in bad faith; and (3) that the representation was material to the risk being insured.”
Courts applying Pennsylvania law have routinely held that misrepresentations regarding alcohol abuse are deemed to be made in bad faith as a matter of law and extended this holding to include misrepresentations regarding drug use. ... The Third Circuit Court of Appeals equates alcohol abuse and drug abuse in the same manner.
Under Pennsylvania law, a misrepresentation does not have to be related to the eventual claim for which benefits are sought in order to be “material” for legal purposes. A statement is material if it is relevant to the risk assumed, even if it is unrelated to the loss actually incurred.
Any “misrepresented fact is material if being disclosed to the insurer it would have caused it to refuse the risk altogether or to demand a higher premium.”
The undisputed facts here, together with long-standing governing law, lead to the conclusion that decedent's past drug use would have led the insurer to deny decedent's insurance coverage and, thus, is a material fact .
Friday, May 09, 2008
contracts - good faith and fair dealing
Pierce v. QVC, Inc. - ED Pa. - May 5, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0511P.pdf
Pennsylvania courts have adopted the general duty of good faith and fair dealing in the performance of a contract as found in the Restatement 2d, Contracts § 205, see, e.g., Somers v. Somers, 613 A.2d 1211, 1213 (Pa. Super. Ct. 1992), and the state UCC, 13 Pa. Cons. Stat. § 1203, imposes a similar requirement.
UCC §1203 provides that “[e]very contract or duty within this title imposes an obligation of good faith in its performance or enforcement.” “Good faith” is defined by statute as “[h]onesty in fact in the conduct or transaction concerned.” 13 Pa. C.S. §1201. As Pennsylvania courts and the Third Circuit have explained, however, “[t]he obligation to act in good faith in the performance of contractual duties varies somewhat with the context.”
Noting the U.C.C. definition of good faith, the Restatement explains that “[g]ood faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party . . . .” Restatement 2d, Contracts § 205 Cmt. a.
As the Third Circuit has explained, with "rare exception, the courts use the UCC good faith requirements in aid and furtherance of the parties’ agreement, not to override the parties’ agreement for reasons of fairness, policy, or morality. Thus, courts generally utilize the good faith duty as an interpretive tool to determine the parties’ justifiable expectations, and do not enforce an independent duty divorced from the specific clauses of the contract."
The comment to 13 Pa. C.S. §1203 notes that “the doctrine of good faith merely directs a court towards interpreting contracts within the commercial context in which they are created, performed, and enforced, and does not create a separate duty of fairness and reasonableness which can be independently breached.”
In fact, the Third Circuit and this Court have recognized an independent duty of good faith under Pennsylvania law only in “limited situations,” such as a confidential or fiduciary relationship.
Courts should “utilize the good faith duty as an interpretive tool to determine the parties’ justifiable expectations” and not to “override the parties’ agreement for reasons of fairness, policy, or morality,” which "would be contrary to the meaning of the duty of good faith found in the Restatement and Pennsylvania’s U.C.C."
http://www.paed.uscourts.gov/documents/opinions/08D0511P.pdf
Pennsylvania courts have adopted the general duty of good faith and fair dealing in the performance of a contract as found in the Restatement 2d, Contracts § 205, see, e.g., Somers v. Somers, 613 A.2d 1211, 1213 (Pa. Super. Ct. 1992), and the state UCC, 13 Pa. Cons. Stat. § 1203, imposes a similar requirement.
UCC §1203 provides that “[e]very contract or duty within this title imposes an obligation of good faith in its performance or enforcement.” “Good faith” is defined by statute as “[h]onesty in fact in the conduct or transaction concerned.” 13 Pa. C.S. §1201. As Pennsylvania courts and the Third Circuit have explained, however, “[t]he obligation to act in good faith in the performance of contractual duties varies somewhat with the context.”
Noting the U.C.C. definition of good faith, the Restatement explains that “[g]ood faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party . . . .” Restatement 2d, Contracts § 205 Cmt. a.
As the Third Circuit has explained, with "rare exception, the courts use the UCC good faith requirements in aid and furtherance of the parties’ agreement, not to override the parties’ agreement for reasons of fairness, policy, or morality. Thus, courts generally utilize the good faith duty as an interpretive tool to determine the parties’ justifiable expectations, and do not enforce an independent duty divorced from the specific clauses of the contract."
The comment to 13 Pa. C.S. §1203 notes that “the doctrine of good faith merely directs a court towards interpreting contracts within the commercial context in which they are created, performed, and enforced, and does not create a separate duty of fairness and reasonableness which can be independently breached.”
In fact, the Third Circuit and this Court have recognized an independent duty of good faith under Pennsylvania law only in “limited situations,” such as a confidential or fiduciary relationship.
Courts should “utilize the good faith duty as an interpretive tool to determine the parties’ justifiable expectations” and not to “override the parties’ agreement for reasons of fairness, policy, or morality,” which "would be contrary to the meaning of the duty of good faith found in the Restatement and Pennsylvania’s U.C.C."
employment - "infamous crimes" - crimen falsi - Article II, sec. 7
Cmwlth. v. Griffin - Pennsylvania Supreme Court - May 6, 2008
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-26-08mo.pdf
This quo warranto case concerns Article II, sec. 7, of the Pennsylvania Constitution, which provides that "[n]o person convicted of embezzlement of public moneys, bribery, perjury or other infamous crime shall be eligible to the General Assembly, or capable of holding any office of trust or profit in this Commonwealth."
The Court held that the respondent, a Philadelphia Municipal Court judge, who was convicted of two felonies in 1984 related to fraudulently procuring a credit card, was disqualified under Article II, sec. 7, from continuing to hold her office as judge.
infamous crimes -
In "the seminal decision of Commonwealth v. Shaver (Pa. 1842) after a thorough historical review, this Court ultimately described the category of infamous offenses as follows: The offences which disqualify a person to give evidence, when convicted of the same, are treason, felony, and every species of the crimen falsi--such as forgery, subornation of perjury, attaint of false verdict, and other offences of the like description, which involve the charge of falsehood and affect the public administration of justice."
The court here rejected respondent's claims that "the inclusion of all felonies and crimen falsi offenses within the constitutional classification...'appears to go too far' [and] that such crimes should only be considered as prohibiting the holding of public office if they undermine the administration of justice." The Court said that it "has consistently adhered to an interpretation in which felonies and crimen falsi offenses are distinct (albeit overlapping) categories, both of which contribute to the definition of infamous crimes.""
This also comports with the understanding of the term 'infamous' at common law. As one commentator has observed: [U]nder the early common law certain crimes were called “infamous” on account of the shameful status which resulted to the person convicted of one of them. Crimes which were regarded as infamous were treason, felonies, any offense tending to pervert the administration of justice, and such crimes as came within the general scope of the term “crimen falsi” of the Roman law, such as perjury, subornation of perjury, barratry, conspiracy, swindling, cheating, and other crimes of a kindred nature. M. C. Dransfield, Annotation, What is an Infamous Crime or One Involving Moral Turpitude Constituting Disqualification to Hold Public Office, 52 A.L.R.2d 1514, §2(a)
laches -
Laches bars relief when the plaintiff’s lack of due diligence in failing to timely institute an action results in prejudice to another. Because it is an affirmative defense, the burden of proof is on the defendant or respondent to demonstrate unreasonable delay and prejudice....Thus, “[t]he party asserting laches as a defense must present evidence demonstrating prejudice from a lapse of time . . . [such as] that a witness has died or become unavailable, that substantiating records were lost, or that the defendant has changed [her] position in anticipation the opposing party has waived his claims.” ...Furthermore, “[t]he question of laches is factual and is determined by examining the circumstances of each case.” ....[L]aches may be invoked in disciplinary proceedings for professional misconduct [although] it is less clear that it should ordinarily be deemed available relative to an Article II, Section 7 quo warranto action.
“Where the time delay is grossly unreasonable, the defendant’s burden of proof may be proportionately eased and the ‘necessity for specifics regarding prejudice or injury becomes less crucial.’”
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-26-08mo.pdf
This quo warranto case concerns Article II, sec. 7, of the Pennsylvania Constitution, which provides that "[n]o person convicted of embezzlement of public moneys, bribery, perjury or other infamous crime shall be eligible to the General Assembly, or capable of holding any office of trust or profit in this Commonwealth."
The Court held that the respondent, a Philadelphia Municipal Court judge, who was convicted of two felonies in 1984 related to fraudulently procuring a credit card, was disqualified under Article II, sec. 7, from continuing to hold her office as judge.
infamous crimes -
In "the seminal decision of Commonwealth v. Shaver (Pa. 1842) after a thorough historical review, this Court ultimately described the category of infamous offenses as follows: The offences which disqualify a person to give evidence, when convicted of the same, are treason, felony, and every species of the crimen falsi--such as forgery, subornation of perjury, attaint of false verdict, and other offences of the like description, which involve the charge of falsehood and affect the public administration of justice."
The court here rejected respondent's claims that "the inclusion of all felonies and crimen falsi offenses within the constitutional classification...'appears to go too far' [and] that such crimes should only be considered as prohibiting the holding of public office if they undermine the administration of justice." The Court said that it "has consistently adhered to an interpretation in which felonies and crimen falsi offenses are distinct (albeit overlapping) categories, both of which contribute to the definition of infamous crimes.""
This also comports with the understanding of the term 'infamous' at common law. As one commentator has observed: [U]nder the early common law certain crimes were called “infamous” on account of the shameful status which resulted to the person convicted of one of them. Crimes which were regarded as infamous were treason, felonies, any offense tending to pervert the administration of justice, and such crimes as came within the general scope of the term “crimen falsi” of the Roman law, such as perjury, subornation of perjury, barratry, conspiracy, swindling, cheating, and other crimes of a kindred nature. M. C. Dransfield, Annotation, What is an Infamous Crime or One Involving Moral Turpitude Constituting Disqualification to Hold Public Office, 52 A.L.R.2d 1514, §2(a)
laches -
Laches bars relief when the plaintiff’s lack of due diligence in failing to timely institute an action results in prejudice to another. Because it is an affirmative defense, the burden of proof is on the defendant or respondent to demonstrate unreasonable delay and prejudice....Thus, “[t]he party asserting laches as a defense must present evidence demonstrating prejudice from a lapse of time . . . [such as] that a witness has died or become unavailable, that substantiating records were lost, or that the defendant has changed [her] position in anticipation the opposing party has waived his claims.” ...Furthermore, “[t]he question of laches is factual and is determined by examining the circumstances of each case.” ....[L]aches may be invoked in disciplinary proceedings for professional misconduct [although] it is less clear that it should ordinarily be deemed available relative to an Article II, Section 7 quo warranto action.
“Where the time delay is grossly unreasonable, the defendant’s burden of proof may be proportionately eased and the ‘necessity for specifics regarding prejudice or injury becomes less crucial.’”
Friday, May 02, 2008
Fair Housing Act - reasonable accommodations - HUD/DOJ Joint Statement
http://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf
The Department of Justice ("DOJ") and the Department of Housing and Urban Development ("HUD") are jointly responsible for enforcing the federal Fair Housing Act, 42 U.S.C. §§ 3601-3619, which prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability.
One type of disability discrimination prohibited by the Act is a refusal to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises.
HUD and DOJ frequently respond to complaints alleging that housing providers have violated the Act by refusing reasonable modifications to persons with disabilities.
This Statement provides technical assistance regarding the rights and obligations of persons with disabilities and housing providers under the Act relating to reasonable modifications.
The Department of Justice ("DOJ") and the Department of Housing and Urban Development ("HUD") are jointly responsible for enforcing the federal Fair Housing Act, 42 U.S.C. §§ 3601-3619, which prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability.
One type of disability discrimination prohibited by the Act is a refusal to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises.
HUD and DOJ frequently respond to complaints alleging that housing providers have violated the Act by refusing reasonable modifications to persons with disabilities.
This Statement provides technical assistance regarding the rights and obligations of persons with disabilities and housing providers under the Act relating to reasonable modifications.
Subscribe to:
Posts (Atom)