Segers v. Astrue - ED Pa. - May 8, 2009
http://www.paed.uscourts.gov/documents/opinions/09D0537P.pdf
Noting that neither the Supreme Court nor the Third Circuit Court of Appeals has outlined the correct focus or level of generality for deciding whether the Commissioner’s position was “substantially justified,” and other courts have set forth differing approaches, the court adopted the this Court will adopt a "reasoned approach" in the “totality of the circumstances” method of analysis that examines the entirety of the government’s position in litigation when determining substantial justification, . See Roanoke River Basin Assoc. v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993); Jackson v. Chater, 94 F.3d 274, 278 (7th Cir. 1996); Williams, 595 F. Supp. 2d at 586; Corona, 431 F. Supp. 2d at 514. See also Williams v. Astrue, 595 F. Supp. 2d 582, 585-86 (E.D. Pa. 2009) (comparing the approaches of different courts); Corona, 431 F. Supp. 2d at 512-13 (E.D. Pa. 2006) (same).
In this case, "applying a 'totality of the circumstances' approach, it is clear that the Commissioner had (1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory it propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced. See Morgan 142 F.3d at 684. Accordingly, the Court is satisfied that the ALJ acted reasonably and the Commissioner’s position was substantially justified, and the Court denies Ms. Segers’s motion for attorney’s fees."
Wednesday, May 13, 2009
Tuesday, May 12, 2009
UC - appeal - filing by email - timeliness
Roman-Hutchinson v. UCBR - May 11, 2009 - Cmwlth. Court
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2112CD08_5-11-09.pdf
Appeal sent by e-mail which was not received until after the appeal deadline was not timely.
The risk of non-delivery of an e-mail appeal is on the appellant, 34 Pa. Code §101.82(b)(4)
The "common law 'mailbox rule', which provides that the depositing in the post office of a properly addressed letter with prepaid postage raises a natural presumption that the letter reached its destination by due course of mail, does not apply to appeals sent by e-mail. Under the “mailbox rule,” evidence that a letter has been mailed ordinarily will be sufficient to permit a fact finder to find that the letter was, in fact, received by the party to whom it was addressed.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2112CD08_5-11-09.pdf
Appeal sent by e-mail which was not received until after the appeal deadline was not timely.
The risk of non-delivery of an e-mail appeal is on the appellant, 34 Pa. Code §101.82(b)(4)
The "common law 'mailbox rule', which provides that the depositing in the post office of a properly addressed letter with prepaid postage raises a natural presumption that the letter reached its destination by due course of mail, does not apply to appeals sent by e-mail. Under the “mailbox rule,” evidence that a letter has been mailed ordinarily will be sufficient to permit a fact finder to find that the letter was, in fact, received by the party to whom it was addressed.
Tuesday, May 05, 2009
admin. law - appeal - date of decision v. date of mailing
Ribaudo v. DPW - Supreme Court - April 29, 2009
majority - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-115-2008mo.pdf
dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-115-08do.pdf
reversing http://www.courts.state.pa.us/OpPosting/CWealth/out/351CD06_1-4-07.pdf
Held: A notice of adjudication that clearly advised the party of the starting and ending dates of the applicable appeal period, but did not specifically designate the date stamped on the notice as the notice’s mailing date, was held to be sufficient to trigger the start of the appeal period. Therefore, an appeal filed more than 8 months after the decision was untimely.
The statute in qeustion specified that the appeal period was to run from the date of the notice, not the date of mailing of the notice.
The court said that the "linchpin" in the case was its decision in Schmidt v. Commonwealth, 433 A2d 456 (Pa. 1981), where it "addressed whether a notice of adjudication, whose only indication of its date of mailing was a postmark, triggered the relevant appeal period. We construed the statutory language at issue in Schmidt as implying a duty on the part of the government agency to advise the taxpayer of the mailing date, and we concluded it would be “manifestly unjust” to dismiss a taxpayer’s appeal based on some internal departmental mailing date where the taxpayer was never informed of the mailing date."
The court said (and noted that appellant conceded that it "did not impose in Schmidt an absolute rule that all administrative agency notices must contain a mailing date which is specifically designated as such. Rather, Schmidt requires only that an agency’s notice of adjudication sufficiently inform the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights."
The court held that "DPW complied with Schmidt. It notified [appellant] of the starting date of the appeal period and advised appellant that if it disagreed with the findings contained in the audit report, it had “the right to ppeal by filing a written request for a hearing with [the Bureau] within 33 days of the date of this letter,” and the letter was date-stamped “MAR 31, 2004.” The combination of the letter’s content and the date-stamp was sufficient to put appellant on notice that the appeal had to be filed within 33 days of March 31, 2004 ─ “the date of this letter.” Moreover, this information comported with the relevant statute specifying that appeals must be filed within 33 days “of the date of the notice of the departmental action” rather than the date of mailing.
The court reaffirmed its approach in Schmidt, and held that "whether an agency’s notice of adjudication triggers the start of an appeal period depends on whether, consistent with the applicable statute, the notice sufficiently informs the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights. Because we find that the notice in this case was sufficient, the appeal to the Bureau was untimely."
majority - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-115-2008mo.pdf
dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-115-08do.pdf
reversing http://www.courts.state.pa.us/OpPosting/CWealth/out/351CD06_1-4-07.pdf
Held: A notice of adjudication that clearly advised the party of the starting and ending dates of the applicable appeal period, but did not specifically designate the date stamped on the notice as the notice’s mailing date, was held to be sufficient to trigger the start of the appeal period. Therefore, an appeal filed more than 8 months after the decision was untimely.
The statute in qeustion specified that the appeal period was to run from the date of the notice, not the date of mailing of the notice.
The court said that the "linchpin" in the case was its decision in Schmidt v. Commonwealth, 433 A2d 456 (Pa. 1981), where it "addressed whether a notice of adjudication, whose only indication of its date of mailing was a postmark, triggered the relevant appeal period. We construed the statutory language at issue in Schmidt as implying a duty on the part of the government agency to advise the taxpayer of the mailing date, and we concluded it would be “manifestly unjust” to dismiss a taxpayer’s appeal based on some internal departmental mailing date where the taxpayer was never informed of the mailing date."
The court said (and noted that appellant conceded that it "did not impose in Schmidt an absolute rule that all administrative agency notices must contain a mailing date which is specifically designated as such. Rather, Schmidt requires only that an agency’s notice of adjudication sufficiently inform the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights."
The court held that "DPW complied with Schmidt. It notified [appellant] of the starting date of the appeal period and advised appellant that if it disagreed with the findings contained in the audit report, it had “the right to ppeal by filing a written request for a hearing with [the Bureau] within 33 days of the date of this letter,” and the letter was date-stamped “MAR 31, 2004.” The combination of the letter’s content and the date-stamp was sufficient to put appellant on notice that the appeal had to be filed within 33 days of March 31, 2004 ─ “the date of this letter.” Moreover, this information comported with the relevant statute specifying that appeals must be filed within 33 days “of the date of the notice of the departmental action” rather than the date of mailing.
The court reaffirmed its approach in Schmidt, and held that "whether an agency’s notice of adjudication triggers the start of an appeal period depends on whether, consistent with the applicable statute, the notice sufficiently informs the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights. Because we find that the notice in this case was sufficient, the appeal to the Bureau was untimely."
Monday, May 04, 2009
abuse - expungement - proof of identity - collateral proceedings - standard of proof
C.S. v. DPW - Cmwlth. Court - May 1, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/426CD08_5-1-09.pdf
Welfare authorities in an expungement appeal could not rely on evidence in a dependency case to prove that appellants-parents abused their child, when the evidence in the dependency case was only "prima facie evidence that the parents were the abusers."
The court distinguished J.G. v. DPW, 795 A.2d 1089 (Pa. Cmwlth. 2002), where the identity of the perpetrator was established in a separate court proceeding, and clarified its opinion in K.R. v. DPW, 950 A2d 1069, 1072 (Pa. Cmwlth. 2008) to make clear that where "a founded report is based upon a judicial adjudication in a non-criminal proceeding, such as a dependency action, in which the court enters a finding that the child was abused, but does not issue a corresponding finding that the named perpetrator was responsible for the abuse, a named perpetrator is entitled to an administrative appeal before the secretary to determine whether the underlying adjudication of child abuse supports a ‘founded report’ of abuse."
The court also noted the different between dependency and expungement actions. In dependency cases, CYS needs to establish the fact of abuse by clear and convincing evidence, but the identity on the alleged abuser only by prima facie evidence.
"By contrast, in expungement proceedings, the county agency or DPW has the burden of proving by substantial evidence that the alleged perpetrator's conduct falls within one of the definitions of child abuse set forth in Section 6303(b)(1) of the CPSL....Section 6303(a) of the CPSL defines an "indicated report" as a child abuse report based on a determination by the county agency or the Department that, "substantial evidence of the alleged abuse exists." 23 Pa. C.S. § 6303(a).
For the purpose of an expungement proceeding, substantial evidence is "[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." Thus, the standard for determining the identity of a perpetrator in dependency matters is a significantly lower burden of proof than in expungement proceedings. The different burdens of proof set forth for the proceedings highlight the fundamentally different purposes that dependency proceedings and expungement proceedings serve." (emphasis added)
Note: The use of term "substantial evidence" in the statute is confusing and misleading. The definition is virtually the same as "preponderance of the evidence." "A preponderance of the evidence is defined as "the greater weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement for preponderance of the evidence." Raker v. Raker, 847 A.2d 720, 724 (Pa.Super. 2004)
In fact, there is a strong argument that since expungement cases involve the fundamental right of reputation under Article I, sec. 1, of the Pennsylvania Constitution, the standard of proof should be clear and convincing. As the majority noted, the "CPSL is geared more towards reporting perpetrators of abuse, which may adversely affect a perpetrator’s reputation and employment opportunities. A.Y. v. Department of Public Welfare, 537 Pa. 116, 125 n.7, 641 A.2d 1148, 1152 n.7 (1994); 23 Pa. C.S. § 6338(a).
As the Supreme Court in A.Y. explained, "Although less process is due in an administrative proceeding than where criminal charges have been brought, an administrative adjudication of suspected child abuse is of the most serious nature. Therefore, this society, which was founded upon, inter alia, its citizens' ‘inherent and indefeasible rights . . . of acquiring, possessing and protecting property and reputation,’ cannot blithely surrender those rights in the name of prosecutorial convenience." A.Y., 537 Pa. at 124, 641 A.2d at 1152.... Thus, the higher standard of proof required in an expungement proceeding to prove the identity of a perpetrator is reasonable in light of his "inherent and indefeasible rights" which may be negatively affected."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/426CD08_5-1-09.pdf
Welfare authorities in an expungement appeal could not rely on evidence in a dependency case to prove that appellants-parents abused their child, when the evidence in the dependency case was only "prima facie evidence that the parents were the abusers."
The court distinguished J.G. v. DPW, 795 A.2d 1089 (Pa. Cmwlth. 2002), where the identity of the perpetrator was established in a separate court proceeding, and clarified its opinion in K.R. v. DPW, 950 A2d 1069, 1072 (Pa. Cmwlth. 2008) to make clear that where "a founded report is based upon a judicial adjudication in a non-criminal proceeding, such as a dependency action, in which the court enters a finding that the child was abused, but does not issue a corresponding finding that the named perpetrator was responsible for the abuse, a named perpetrator is entitled to an administrative appeal before the secretary to determine whether the underlying adjudication of child abuse supports a ‘founded report’ of abuse."
The court also noted the different between dependency and expungement actions. In dependency cases, CYS needs to establish the fact of abuse by clear and convincing evidence, but the identity on the alleged abuser only by prima facie evidence.
"By contrast, in expungement proceedings, the county agency or DPW has the burden of proving by substantial evidence that the alleged perpetrator's conduct falls within one of the definitions of child abuse set forth in Section 6303(b)(1) of the CPSL....Section 6303(a) of the CPSL defines an "indicated report" as a child abuse report based on a determination by the county agency or the Department that, "substantial evidence of the alleged abuse exists." 23 Pa. C.S. § 6303(a).
For the purpose of an expungement proceeding, substantial evidence is "[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." Thus, the standard for determining the identity of a perpetrator in dependency matters is a significantly lower burden of proof than in expungement proceedings. The different burdens of proof set forth for the proceedings highlight the fundamentally different purposes that dependency proceedings and expungement proceedings serve." (emphasis added)
Note: The use of term "substantial evidence" in the statute is confusing and misleading. The definition is virtually the same as "preponderance of the evidence." "A preponderance of the evidence is defined as "the greater weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement for preponderance of the evidence." Raker v. Raker, 847 A.2d 720, 724 (Pa.Super. 2004)
In fact, there is a strong argument that since expungement cases involve the fundamental right of reputation under Article I, sec. 1, of the Pennsylvania Constitution, the standard of proof should be clear and convincing. As the majority noted, the "CPSL is geared more towards reporting perpetrators of abuse, which may adversely affect a perpetrator’s reputation and employment opportunities. A.Y. v. Department of Public Welfare, 537 Pa. 116, 125 n.7, 641 A.2d 1148, 1152 n.7 (1994); 23 Pa. C.S. § 6338(a).
As the Supreme Court in A.Y. explained, "Although less process is due in an administrative proceeding than where criminal charges have been brought, an administrative adjudication of suspected child abuse is of the most serious nature. Therefore, this society, which was founded upon, inter alia, its citizens' ‘inherent and indefeasible rights . . . of acquiring, possessing and protecting property and reputation,’ cannot blithely surrender those rights in the name of prosecutorial convenience." A.Y., 537 Pa. at 124, 641 A.2d at 1152.... Thus, the higher standard of proof required in an expungement proceeding to prove the identity of a perpetrator is reasonable in light of his "inherent and indefeasible rights" which may be negatively affected."
Tuesday, April 28, 2009
UC - willful misconduct - negligence v. breach of employer rule
Moran v. UCBR - Cmwlth. Cour - Ap[ril 27, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1659CD08_4-27-09.pdf
The court rejected claimant's argument that his failure to put the brake on his truck was merely negligence, under Navickas v. UCBR, 787 A.2d 284 (Pa. 2001), since claimant was fired not for a negligent error but rather for the violation of the work rule regarding putting the brake on trucks.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1659CD08_4-27-09.pdf
The court rejected claimant's argument that his failure to put the brake on his truck was merely negligence, under Navickas v. UCBR, 787 A.2d 284 (Pa. 2001), since claimant was fired not for a negligent error but rather for the violation of the work rule regarding putting the brake on trucks.
UC - appeal -proof of mailing - postage meter
Moran v. UCBR - Cmwlth. Cour - Ap[ril 27, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1659CD08_4-27-09.pdf
Employer's appeal was timely filed, where the date on the emvelope, from the the employer's postage meter, was within the appeal period, upholding the validity of 34 Pa. Code 101.82 and distinguishing Lin v. UCBR, 735 A.2d 697 (Pa. 1999), a pre-regulation decision.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1659CD08_4-27-09.pdf
Employer's appeal was timely filed, where the date on the emvelope, from the the employer's postage meter, was within the appeal period, upholding the validity of 34 Pa. Code 101.82 and distinguishing Lin v. UCBR, 735 A.2d 697 (Pa. 1999), a pre-regulation decision.
Wednesday, April 15, 2009
adminative law - regulation v. statement of policy
Borough of Bedford, et al. v. DEP, et al. - Cmwlth. Court - April 14, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/160MD08_4-14-09.pdf
DEP's motion for summary judgment denied. DEP claimed that the relevant document was a statement of policy, 45 P.S. 1102(13). The Plaintiffs claimed that it was a regulation, 45 P.S. 1102(12). The court said that the statutory definitions "do little to separate a statement of policy from a regulation" and that the resolution of the legal issue would require factual development.
There is an extensive discussion about the important administrative law issue of whether an agency promulgation is a
- regulation, which has the force of law, establishes a "binding norm," and must be adopted according to a strict procedure - The "basic procedures by which an agency promulgates a regulation are set forth in the Commonwealth Documents Law. In essence, these procedures require an agency to give notice to the public of its proposed rule-making and an opportunity for the public to comment.11 See Eastwood Nursing, 910 A.2d at 141 n.13. However, this is only the beginning. The agency must also obtain the approval of the Attorney General and the General Counsel of a proposed regulation’s form and legality. Sections 204(b) and 301(10) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §§732-204(b) and 732-301(10). Finally, an agency’s regulation must also undergo legislative scrutiny in accordance with the Regulatory Review Act." - OR
- statement of policy, which does not have the force of law , but rather is "merely an announcement to the public of the policy which the agency hopes to implement in future rulemakings or adjudications. A general statement of policy, like a press release, presages an upcoming rulemaking or announces the course which the agency intends to follow in future adjudications....A general statement of policy, on the other hand, does not establish a ‘binding norm’…. A policy statement announces the agency’s tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. Id. at 349-350, 374 A.2d at 679 (quoting Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 33, 38 (1974)) (emphasis added)."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/160MD08_4-14-09.pdf
DEP's motion for summary judgment denied. DEP claimed that the relevant document was a statement of policy, 45 P.S. 1102(13). The Plaintiffs claimed that it was a regulation, 45 P.S. 1102(12). The court said that the statutory definitions "do little to separate a statement of policy from a regulation" and that the resolution of the legal issue would require factual development.
There is an extensive discussion about the important administrative law issue of whether an agency promulgation is a
- regulation, which has the force of law, establishes a "binding norm," and must be adopted according to a strict procedure - The "basic procedures by which an agency promulgates a regulation are set forth in the Commonwealth Documents Law. In essence, these procedures require an agency to give notice to the public of its proposed rule-making and an opportunity for the public to comment.11 See Eastwood Nursing, 910 A.2d at 141 n.13. However, this is only the beginning. The agency must also obtain the approval of the Attorney General and the General Counsel of a proposed regulation’s form and legality. Sections 204(b) and 301(10) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §§732-204(b) and 732-301(10). Finally, an agency’s regulation must also undergo legislative scrutiny in accordance with the Regulatory Review Act." - OR
- statement of policy, which does not have the force of law , but rather is "merely an announcement to the public of the policy which the agency hopes to implement in future rulemakings or adjudications. A general statement of policy, like a press release, presages an upcoming rulemaking or announces the course which the agency intends to follow in future adjudications....A general statement of policy, on the other hand, does not establish a ‘binding norm’…. A policy statement announces the agency’s tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. Id. at 349-350, 374 A.2d at 679 (quoting Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 33, 38 (1974)) (emphasis added)."
Wednesday, April 01, 2009
UC - petition for review - statement of objections
Shimp v. UCBR - Cmwlth. Court - March 30, 2009 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1798CD08_3-31-09.pdf
The pro se form petition for review stated that the "Board of Review should be reversed because (You must state with specificity why you believe the Board is in error)." Claimant did not make any allegation here but just attached a postal proof of mailing.
Claimant's failure to raise any allegation of error regarding the Board’s decision in the petition for review was a waiver and violated Pa.R.A.P. 1513(d), since there was no "general statement of the objections to the order or other determination." See Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996) (Commonwealth Court was correct in refusing to consider issues not fairly comprised from objections raised in petition for review); Jimoh v. UCBR, 902 A.2d 608 (Pa. Cmwlth. 2006) (issue not raised in the stated objections in the petition for review nor “fairly comprised therein” is waived and will not be addressed by this Court); Tyler v. UCBR, 591 A.2d 1164 (Pa. Cmwlth. 1991) (same).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1798CD08_3-31-09.pdf
The pro se form petition for review stated that the "Board of Review should be reversed because (You must state with specificity why you believe the Board is in error)." Claimant did not make any allegation here but just attached a postal proof of mailing.
Claimant's failure to raise any allegation of error regarding the Board’s decision in the petition for review was a waiver and violated Pa.R.A.P. 1513(d), since there was no "general statement of the objections to the order or other determination." See Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996) (Commonwealth Court was correct in refusing to consider issues not fairly comprised from objections raised in petition for review); Jimoh v. UCBR, 902 A.2d 608 (Pa. Cmwlth. 2006) (issue not raised in the stated objections in the petition for review nor “fairly comprised therein” is waived and will not be addressed by this Court); Tyler v. UCBR, 591 A.2d 1164 (Pa. Cmwlth. 1991) (same).
Thursday, March 26, 2009
arbitration - express, unequivocal mutual agreement
Kirleis v. Dickie, McCamey & Chilcote, PC - Third Circuit - March 24, 2009
http://www.ca3.uscourts.gov/opinarch/073504p.pdf
Attorney-shareholder of law firm sued for sex discrimination. The firm moved to compel arbitration under the terms of the corporate bylaws. The 3d Circuit upheld the district court's refusal to grant the firm's motion.
Plaintiff alleged--and the firm did not challenge--that she was never informed of the presence of the arbitration provision in the by-Laws, she never signed any agreement or document which refers to or incorporates the arbitration provision in the by-Laws. and she never agreed to arbitrate my claims against the firm.
Pennsylvania law about contract formation/arbitration requires that "[b]efore a party to a lawsuit can be ordered to arbitrate . . . there should be an express, unequivocal agreement to that effect," Par-Knit Mills, 636 F.2d at 54. No such agreement was shown in this case. The court held that plaintiff's status as a shareholder did not put her on constructive notice of the provision. "Under Pennsylvania law, explicit agreement is essential to the formation of an enforceable arbitration contract...."A mutual manifestation of intent to be bound is an essential element of a contract.". Thus, the firm's argument that Kirleis impliedly agreed to
arbitrate her claims must fail under Pennsylvania law. See also, Quiles v.
Financial Exchange Co., 879 A.2d 281 (Pa. Super. Ct. 2005)
http://www.ca3.uscourts.gov/opinarch/073504p.pdf
Attorney-shareholder of law firm sued for sex discrimination. The firm moved to compel arbitration under the terms of the corporate bylaws. The 3d Circuit upheld the district court's refusal to grant the firm's motion.
Plaintiff alleged--and the firm did not challenge--that she was never informed of the presence of the arbitration provision in the by-Laws, she never signed any agreement or document which refers to or incorporates the arbitration provision in the by-Laws. and she never agreed to arbitrate my claims against the firm.
Pennsylvania law about contract formation/arbitration requires that "[b]efore a party to a lawsuit can be ordered to arbitrate . . . there should be an express, unequivocal agreement to that effect," Par-Knit Mills, 636 F.2d at 54. No such agreement was shown in this case. The court held that plaintiff's status as a shareholder did not put her on constructive notice of the provision. "Under Pennsylvania law, explicit agreement is essential to the formation of an enforceable arbitration contract...."A mutual manifestation of intent to be bound is an essential element of a contract.". Thus, the firm's argument that Kirleis impliedly agreed to
arbitrate her claims must fail under Pennsylvania law. See also, Quiles v.
Financial Exchange Co., 879 A.2d 281 (Pa. Super. Ct. 2005)
Thursday, March 05, 2009
federal courts - standing - organizational standing
SUPREME COURT OF THE UNITED STATES
SUMMERS ET AL. v. EARTH ISLAND INSTITUTE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 07–463. Argued October 8, 2008—Decided March 3, 2009
After the U. S. Forest Service approved the Burnt Ridge Project, a salvage sale of timber on 238 acres of fire-damaged federal land, respondent environmentalist organizations filed suit to enjoin the Service from applying its regulations exempting such small sales fromthe notice, comment, and appeal process it uses for more significant land management decisions, and to challenge other regulations thatdid not apply to Burnt Ridge. The District Court granted a preliminary injunction against the sale, and the parties then settled theirdispute as to Burnt Ridge. Although concluding that the sale was no longer at issue, and despite the Government’s argument that respondents therefore lacked standing to challenge the regulations, thecourt nevertheless proceeded to adjudicate the merits of their challenges, invalidating several regulations, including the notice and comment and the appeal provisions. Among its rulings, the NinthCircuit affirmed the determination that the latter regulations, which were applicable to Burnt Ridge, were contrary to law, but held that challenges to other regulations not at issue in that project were not ripe for adjudication.
Held: Respondents lack standing to challenge the regulations still atissue absent a live dispute over a concrete application of those regulations. Pp. 4–12.
(a) In limiting the judicial power to "Cases" and "Controversies," Article III restricts it to redressing or preventing actual or imminently threatened injury to persons caused by violation of law. See, e.g., Lujan v. Defenders of Wildlife, 504 U. S. 555, 559–560. The standing doctrine reflects this fundamental limitation, requiring that "the plaintiff . . . ‘alleg[e] such a personal stake in the outcome of thecontroversy’ as to warrant his invocation of federal-court jurisdiction," Warth v. Seldin, 422 U. S. 490, 498–499. Here, respondentscan demonstrate standing only if application of the regulations will affect them in such a manner. Pp. 4–5.
(b) As organizations, respondents can assert their members’ standing. Harm to their members’ recreational, or even their mere esthetic, interests in the National Forests will suffice to establish the requisite concrete and particularized injury, see Sierra Club v. Morton, 405 U. S. 727, 734–736, but generalized harm to the forest or the environment will not alone suffice. Respondents have identified noapplication of the invalidated regulations that threatens imminentand concrete harm to their members’ interests. Respondents’ argument that they have standing based on Burnt Ridge fails because, after voluntarily settling the portion of their lawsuit relevant to Burnt Ridge, respondents and their members are no longer under threat of injury from that project. The remaining affidavit submitted in support of standing fails to establish that any member has concrete plans to visit a site where the challenged regulations are being applied in a manner that will harm that member’s concrete interests. Additional affidavits purporting to establish standing were submitted after judgment had already been entered and notice of appeal filed,and are thus untimely. Pp. 5–8.
(c) Respondents’ argument that they have standing because they have suffered procedural injury—i.e., they have been denied the ability to file comments on some Forest Service actions and will continueto be so denied—fails because such a deprivation without some concrete interest affected thereby is insufficient to create Article III standing. See, e.g., Defenders of Wildlife, supra, at 572, n. 7. Pp. 8–9.
(d) The dissent’s objections are addressed and rejected. Pp. 9–12. 490 F. 3d 687, reversed in part and affirmed in part.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
SUMMERS ET AL. v. EARTH ISLAND INSTITUTE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 07–463. Argued October 8, 2008—Decided March 3, 2009
After the U. S. Forest Service approved the Burnt Ridge Project, a salvage sale of timber on 238 acres of fire-damaged federal land, respondent environmentalist organizations filed suit to enjoin the Service from applying its regulations exempting such small sales fromthe notice, comment, and appeal process it uses for more significant land management decisions, and to challenge other regulations thatdid not apply to Burnt Ridge. The District Court granted a preliminary injunction against the sale, and the parties then settled theirdispute as to Burnt Ridge. Although concluding that the sale was no longer at issue, and despite the Government’s argument that respondents therefore lacked standing to challenge the regulations, thecourt nevertheless proceeded to adjudicate the merits of their challenges, invalidating several regulations, including the notice and comment and the appeal provisions. Among its rulings, the NinthCircuit affirmed the determination that the latter regulations, which were applicable to Burnt Ridge, were contrary to law, but held that challenges to other regulations not at issue in that project were not ripe for adjudication.
Held: Respondents lack standing to challenge the regulations still atissue absent a live dispute over a concrete application of those regulations. Pp. 4–12.
(a) In limiting the judicial power to "Cases" and "Controversies," Article III restricts it to redressing or preventing actual or imminently threatened injury to persons caused by violation of law. See, e.g., Lujan v. Defenders of Wildlife, 504 U. S. 555, 559–560. The standing doctrine reflects this fundamental limitation, requiring that "the plaintiff . . . ‘alleg[e] such a personal stake in the outcome of thecontroversy’ as to warrant his invocation of federal-court jurisdiction," Warth v. Seldin, 422 U. S. 490, 498–499. Here, respondentscan demonstrate standing only if application of the regulations will affect them in such a manner. Pp. 4–5.
(b) As organizations, respondents can assert their members’ standing. Harm to their members’ recreational, or even their mere esthetic, interests in the National Forests will suffice to establish the requisite concrete and particularized injury, see Sierra Club v. Morton, 405 U. S. 727, 734–736, but generalized harm to the forest or the environment will not alone suffice. Respondents have identified noapplication of the invalidated regulations that threatens imminentand concrete harm to their members’ interests. Respondents’ argument that they have standing based on Burnt Ridge fails because, after voluntarily settling the portion of their lawsuit relevant to Burnt Ridge, respondents and their members are no longer under threat of injury from that project. The remaining affidavit submitted in support of standing fails to establish that any member has concrete plans to visit a site where the challenged regulations are being applied in a manner that will harm that member’s concrete interests. Additional affidavits purporting to establish standing were submitted after judgment had already been entered and notice of appeal filed,and are thus untimely. Pp. 5–8.
(c) Respondents’ argument that they have standing because they have suffered procedural injury—i.e., they have been denied the ability to file comments on some Forest Service actions and will continueto be so denied—fails because such a deprivation without some concrete interest affected thereby is insufficient to create Article III standing. See, e.g., Defenders of Wildlife, supra, at 572, n. 7. Pp. 8–9.
(d) The dissent’s objections are addressed and rejected. Pp. 9–12. 490 F. 3d 687, reversed in part and affirmed in part.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
federal courts - pre-emption - drug warnings
SUPREME COURT OF THE UNITED STATES - WYETH v. LEVINE
CERTIORARI TO THE SUPREME COURT OF VERMONT
No. 06–1249. Argued November 3, 2008—Decided March 4, 2009
Petitioner Wyeth manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the "IVpush" method, whereby a drug is injected directly into a patient’s vein, the drug entered Levine’s artery, she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that Levine’s injury would not have occurred if Phenergan’s label includedan adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as aprofessional musician. Declining to overturn the verdict, the trial court rejected Wyeth’s argument that Levine’s failure-to-warn claimswere pre-empted by federal law because Phenergan’s labeling hadbeen approved by the federal Food and Drug Administration (FDA). The Vermont Supreme Court affirmed.
Held: Federal law does not pre-empt Levine’s claim that Phenergan’slabel did not contain an adequate warning about the IV-push method of administration. Pp. 6–25.
(a) The argument that Levine’s state-law claims are pre-empted because it is impossible for Wyeth to comply with both the state-law duties underlying those claims and its federal labeling duties is rejected. Although a manufacturer generally may change a drug labelonly after the FDA approves a supplemental application, the agency’s"changes being effected" (CBE) regulation permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety. Pursuant to the CBE regulation, Wyeth could have unilaterally added a stronger warning about IV-push administration,and there is no evidence that the FDA would ultimately have rejected such a labeling change. Wyeth’s cramped reading of the CBE regulation and its broad assertion that unilaterally changing the Phenerganlabel would have violated federal law governing unauthorized distribution and misbranding of drugs are based on the fundamental misunderstanding that the FDA, rather than the manufacturer, bearsprimary responsibility for drug labeling. It is a central premise of theFood, Drug, and Cosmetic Act (FDCA) and the FDA’s regulationsthat the manufacturer bears responsibility for the content of its label at all times. Pp. 11–16.
(b) Wyeth’s argument that requiring it to comply with a state-law duty to provide a stronger warning would interfere with Congress’ purpose of entrusting an expert agency with drug labeling decisions is meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to preempt state law. The history of the FDCA shows that Congress didnot intend to pre-empt state-law failure-to-warn actions. In advancing the argument that the FDA must be presumed to have established a specific labeling standard that leaves no room for different state-law judgments, Wyeth relies not on any statement by Congress but on the preamble to a 2006 FDA regulation declaring that statelaw failure-to-warn claims threaten the FDA’s statutorily prescribed role. Although an agency regulation with the force of law can preempt conflicting state requirements, this case involves no such regulation but merely an agency’s assertion that state law is an obstacleto achieving its statutory objectives. Where, as here, Congress has not authorized a federal agency to pre-empt state law directly, theweight this Court accords the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency,and persuasiveness. Cf., e.g., Skidmore v. Swift & Co., 323 U. S. 134. Under this standard, the FDA’s 2006 preamble does not merit deference: It is inherently suspect in light of the FDA’s failure to offer interested parties notice or opportunity for comment on the preemption question; it is at odds with the available evidence of Congress’ purposes; and it reverses the FDA’s own longstanding positionthat state law is a complementary form of drug regulation without providing a reasoned explanation. Geier v. American Honda Motor Co., 529 U. S. 861, is distinguished. Pp. 17–25.
___ Vt. ___, 944 A. 2d 179, affirmed.
STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA, J., joined.
CERTIORARI TO THE SUPREME COURT OF VERMONT
No. 06–1249. Argued November 3, 2008—Decided March 4, 2009
Petitioner Wyeth manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the "IVpush" method, whereby a drug is injected directly into a patient’s vein, the drug entered Levine’s artery, she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that Levine’s injury would not have occurred if Phenergan’s label includedan adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as aprofessional musician. Declining to overturn the verdict, the trial court rejected Wyeth’s argument that Levine’s failure-to-warn claimswere pre-empted by federal law because Phenergan’s labeling hadbeen approved by the federal Food and Drug Administration (FDA). The Vermont Supreme Court affirmed.
Held: Federal law does not pre-empt Levine’s claim that Phenergan’slabel did not contain an adequate warning about the IV-push method of administration. Pp. 6–25.
(a) The argument that Levine’s state-law claims are pre-empted because it is impossible for Wyeth to comply with both the state-law duties underlying those claims and its federal labeling duties is rejected. Although a manufacturer generally may change a drug labelonly after the FDA approves a supplemental application, the agency’s"changes being effected" (CBE) regulation permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety. Pursuant to the CBE regulation, Wyeth could have unilaterally added a stronger warning about IV-push administration,and there is no evidence that the FDA would ultimately have rejected such a labeling change. Wyeth’s cramped reading of the CBE regulation and its broad assertion that unilaterally changing the Phenerganlabel would have violated federal law governing unauthorized distribution and misbranding of drugs are based on the fundamental misunderstanding that the FDA, rather than the manufacturer, bearsprimary responsibility for drug labeling. It is a central premise of theFood, Drug, and Cosmetic Act (FDCA) and the FDA’s regulationsthat the manufacturer bears responsibility for the content of its label at all times. Pp. 11–16.
(b) Wyeth’s argument that requiring it to comply with a state-law duty to provide a stronger warning would interfere with Congress’ purpose of entrusting an expert agency with drug labeling decisions is meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to preempt state law. The history of the FDCA shows that Congress didnot intend to pre-empt state-law failure-to-warn actions. In advancing the argument that the FDA must be presumed to have established a specific labeling standard that leaves no room for different state-law judgments, Wyeth relies not on any statement by Congress but on the preamble to a 2006 FDA regulation declaring that statelaw failure-to-warn claims threaten the FDA’s statutorily prescribed role. Although an agency regulation with the force of law can preempt conflicting state requirements, this case involves no such regulation but merely an agency’s assertion that state law is an obstacleto achieving its statutory objectives. Where, as here, Congress has not authorized a federal agency to pre-empt state law directly, theweight this Court accords the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency,and persuasiveness. Cf., e.g., Skidmore v. Swift & Co., 323 U. S. 134. Under this standard, the FDA’s 2006 preamble does not merit deference: It is inherently suspect in light of the FDA’s failure to offer interested parties notice or opportunity for comment on the preemption question; it is at odds with the available evidence of Congress’ purposes; and it reverses the FDA’s own longstanding positionthat state law is a complementary form of drug regulation without providing a reasoned explanation. Geier v. American Honda Motor Co., 529 U. S. 861, is distinguished. Pp. 17–25.
___ Vt. ___, 944 A. 2d 179, affirmed.
STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA, J., joined.
Wednesday, March 04, 2009
UC - willful misconduct - nolo contendere plea
Smith v. UCBR - Cmwlth. Court - February 27, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1760CD08_2-27-09.pdf
A nolo contendre plea to theft by deception "essentially constituted an admission of the facts charged in the underlying criminal proceedings" and constituted substantial evidence of willful misconduct under sec. 402(e) and fault under sec. 3
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1760CD08_2-27-09.pdf
A nolo contendre plea to theft by deception "essentially constituted an admission of the facts charged in the underlying criminal proceedings" and constituted substantial evidence of willful misconduct under sec. 402(e) and fault under sec. 3
Thursday, February 19, 2009
UC - subpoena - standard for granting
Alston v. UCBR - Cmwlth. Court - February 19, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf
The court reversed the UCBR decision on the merits and remanded the case for a hearing with claimant witnesses whom the referee improperly refused to subpoena.
The court rejected the Board's claim that the witnesses' evidence would be "directly contradictory" to that of the employer and held that it need only lead to "relevant and provative evidence," citing Hamilton v. UCBR, 532 A.2d A.2d 535, 537 (Pa. Cmwlth. 1987).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf
The court reversed the UCBR decision on the merits and remanded the case for a hearing with claimant witnesses whom the referee improperly refused to subpoena.
The court rejected the Board's claim that the witnesses' evidence would be "directly contradictory" to that of the employer and held that it need only lead to "relevant and provative evidence," citing Hamilton v. UCBR, 532 A.2d A.2d 535, 537 (Pa. Cmwlth. 1987).
UC - appeal letter - pro se litigant
Alston v. UCBR - Cmwlth. Court - February 19, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf
A letter to the court served as an appeal under Pa. RAP 1514(a) and sec. 67.13 of court internal operating procedure, which gives a pro se claimant 30 days from receipt of timely appeal letter in which to file a proper petition for review.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf
A letter to the court served as an appeal under Pa. RAP 1514(a) and sec. 67.13 of court internal operating procedure, which gives a pro se claimant 30 days from receipt of timely appeal letter in which to file a proper petition for review.
Wednesday, January 28, 2009
arbitration - class action - no stay as to plaintiffs whose contracts do not have arbitration clause
Mendez, et al. v. Puerto Rican International Companies - 3d Cir. - January 26, 2009
http://www.ca3.uscourts.gov/opinarch/074053p.pdf
The issue for resolution is whether a defendant who is entitled to arbitrate an issue which it has with one plaintiff in a suit can insist on a mandatory stay of litigation of issues it has with other plaintiffs who are not committed to arbitrate those issues. We conclude that Section 3 was not intended to mandate curtailment of the litigation rights of anyone who has not agreed to arbitrate any of the issues before the court.
We acknowledge at the outset that Section 3 can be read literally to confer a right to a mandatory stay in the context of this case. Section 3 is an integral part of a statutory scheme, however, and reading it in the context of the FAA as a whole, we decline to attribute that intent to Congress.
The purpose of the FAA is to render agreements to arbitrate fully enforceable. 9 U.S.C. § 2 (a contract to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”). The purpose of Section 3, in particular, is to guarantee that a party who has secured the agreement of another to arbitrate rather than litigate a dispute will reap the full benefits of its bargain. In short, the “liberal policy ‘favoring arbitration agreements . . . is at bottom a policy guaranteeing the enforcement of private contractual arrangements.’”
Accordingly, “under the FAA, ‘a court may compel a party to arbitrate where that party has entered into a written agreement to arbitrate that covers the dispute.’” Because Congress thus limited the rights it created in the FAA to situations involving corresponding obligations voluntarily assumed by another, we decline appellants’ invitation to interpret Section 3 in a way that would mandate the imposition of a material burden on a party’s right to litigate claims it has not agreed to arbitrate.
While Section 3, as appellants read it, would postpone rather than eliminate a party’s right to litigate its claims against another, it would nevertheless defer that right for the duration of a proceeding over which the constrained party has no control and would deprive the Court of any discretion to consider the impact of that delay on that party. We find no persuasive evidence in the FAA for sanctioning such a burden.
http://www.ca3.uscourts.gov/opinarch/074053p.pdf
The issue for resolution is whether a defendant who is entitled to arbitrate an issue which it has with one plaintiff in a suit can insist on a mandatory stay of litigation of issues it has with other plaintiffs who are not committed to arbitrate those issues. We conclude that Section 3 was not intended to mandate curtailment of the litigation rights of anyone who has not agreed to arbitrate any of the issues before the court.
We acknowledge at the outset that Section 3 can be read literally to confer a right to a mandatory stay in the context of this case. Section 3 is an integral part of a statutory scheme, however, and reading it in the context of the FAA as a whole, we decline to attribute that intent to Congress.
The purpose of the FAA is to render agreements to arbitrate fully enforceable. 9 U.S.C. § 2 (a contract to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”). The purpose of Section 3, in particular, is to guarantee that a party who has secured the agreement of another to arbitrate rather than litigate a dispute will reap the full benefits of its bargain. In short, the “liberal policy ‘favoring arbitration agreements . . . is at bottom a policy guaranteeing the enforcement of private contractual arrangements.’”
Accordingly, “under the FAA, ‘a court may compel a party to arbitrate where that party has entered into a written agreement to arbitrate that covers the dispute.’” Because Congress thus limited the rights it created in the FAA to situations involving corresponding obligations voluntarily assumed by another, we decline appellants’ invitation to interpret Section 3 in a way that would mandate the imposition of a material burden on a party’s right to litigate claims it has not agreed to arbitrate.
While Section 3, as appellants read it, would postpone rather than eliminate a party’s right to litigate its claims against another, it would nevertheless defer that right for the duration of a proceeding over which the constrained party has no control and would deprive the Court of any discretion to consider the impact of that delay on that party. We find no persuasive evidence in the FAA for sanctioning such a burden.
Tuesday, January 27, 2009
disability - attorney fees - subantially justified
Magwood v. Astrue - ED Pa. - January 21, 2009
http://www.paed.uscourts.gov/documents/opinions/09D0086P.pdf
Government's position was not substantially justified where it was contrary to clearly established law concerning step 2 (severity) of the disability evaluation process. The government's prior "string of successes" before a 3d Cir. reversal was not enough to satisfy its burden.
A fee of $12,275.21 was awarded (68.30 hours at a rate of $176.23, plus $238.70 for expenses)
http://www.paed.uscourts.gov/documents/opinions/09D0086P.pdf
Government's position was not substantially justified where it was contrary to clearly established law concerning step 2 (severity) of the disability evaluation process. The government's prior "string of successes" before a 3d Cir. reversal was not enough to satisfy its burden.
A fee of $12,275.21 was awarded (68.30 hours at a rate of $176.23, plus $238.70 for expenses)
mortgage foreclosure - defective Act 91 - prejudice
Wells Fargo v. Monroe - Superior Court - January 26, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s71014_08.pdf
An allegedly defective* Act 91 notice was held not to be a defense to a foreclosure action when the mortgagors were given and availed themselves of the opportunity to pursue mortgage assistance through the HEMAP program.
They met with a credit counseling agency within the 30, as provided by the Act 91 Notice, and applied for mortgage assistance, which was ultimately denied. Under these circumstances, no prejudice could be presumed because of lack of compliance with the Act 91 requirements, and no prejudice was shown.
The " trial court did not abuse its discretion in finding that the Act 91 Notice sufficiently apprised the Monroes of their options with regard to the aid to which they were entitled. Therefore, the trial court’s grant of the motion for summary judgment filed by Wells Fargo was proper."
*The Act 91 notice was alleged to be defective for lack of notation of a place to cure and the inclusion of improper fees.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s71014_08.pdf
An allegedly defective* Act 91 notice was held not to be a defense to a foreclosure action when the mortgagors were given and availed themselves of the opportunity to pursue mortgage assistance through the HEMAP program.
They met with a credit counseling agency within the 30, as provided by the Act 91 Notice, and applied for mortgage assistance, which was ultimately denied. Under these circumstances, no prejudice could be presumed because of lack of compliance with the Act 91 requirements, and no prejudice was shown.
The " trial court did not abuse its discretion in finding that the Act 91 Notice sufficiently apprised the Monroes of their options with regard to the aid to which they were entitled. Therefore, the trial court’s grant of the motion for summary judgment filed by Wells Fargo was proper."
*The Act 91 notice was alleged to be defective for lack of notation of a place to cure and the inclusion of improper fees.
attorney fees - lease - prevailing party
Bayne v. Smith - Superior Court - January 26, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a28016_08.pdf
The court reversed the trial court and held that the lease was not an adhesion contract and that the attorney fee provision was not unconscionable. The tenant did not show a lack of meaningful choice about whether to accept the provision, or that the provision unreasonably favored the landlord.
The court held that critical language in Galligan v. Arovitch, 421 Pa. 301[, 219 A.2d 463] (1966), was mere dicta. It found that the trial court’s reliance on Galligan and Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 485-486, 329 A.2d 812, 830 (1974)] was "misplaced" and the the tenant "failed to satisfy her burden as to unconscionability."
The fee provision in question would have allowed the tenant to recover attorney fees from the landlord had she prevailed in her defense. It gave the "prevailing party" the right to recover fees.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a28016_08.pdf
The court reversed the trial court and held that the lease was not an adhesion contract and that the attorney fee provision was not unconscionable. The tenant did not show a lack of meaningful choice about whether to accept the provision, or that the provision unreasonably favored the landlord.
The court held that critical language in Galligan v. Arovitch, 421 Pa. 301[, 219 A.2d 463] (1966), was mere dicta. It found that the trial court’s reliance on Galligan and Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 485-486, 329 A.2d 812, 830 (1974)] was "misplaced" and the the tenant "failed to satisfy her burden as to unconscionability."
The fee provision in question would have allowed the tenant to recover attorney fees from the landlord had she prevailed in her defense. It gave the "prevailing party" the right to recover fees.
discovery - sanctions - Pa. courts
Cove Centre, Inc. v. Westhafer Construction Co. - Superior Court - January 26, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a32023_08.pdf
Where a discovery sanction either terminates the action directly or would result in its termination by operation of law, the court must consider multiple factors balanced together with the necessity of the sanction.(1) the nature and severity of the discovery violation;(2) the defaulting party's willfulness or bad faith;(3) prejudice to the opposing party;(4) the ability to cure the prejudice; and(5) the importance of the precluded evidence in light of the failure to comply.
With few exceptions, there is no greater sanction in a civil case than a deemed admission of a Request for Admission, as well as preclusion of expert testimony and entry of judgment, so a balancing of the equities emphasizing the nature and motive of the non-compliant party’s conduct is mandatory.
The mere failure of an unrepresented party to comply with discovery rules does not amount to “willfulness or bad faith” as contemplated by case law.
As concerns potential prejudice occasioned by the failure to comply with discovery, the record discloses no hardship to the party seeking sanctions which is not readily remedied upon remand.
The party never filed a Motion to Compel Discovery so as to invoke the trial court’s authority in the interest of advancing the litigation and minimizing delay, which has now been extended by the necessity of this appeal. Moreover, the violations in question did not result in a loss of evidence favorable to the movant. Compliance with the discovery requests in question, even at this late date, would allow the matter to proceed to a full and fair resolution.Compared to the extraordinary prejudice of a sanction order that the trial court has since repudiated, the prejudice to the movant imposed by the failure to comply with discovery is minimal.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a32023_08.pdf
Where a discovery sanction either terminates the action directly or would result in its termination by operation of law, the court must consider multiple factors balanced together with the necessity of the sanction.(1) the nature and severity of the discovery violation;(2) the defaulting party's willfulness or bad faith;(3) prejudice to the opposing party;(4) the ability to cure the prejudice; and(5) the importance of the precluded evidence in light of the failure to comply.
With few exceptions, there is no greater sanction in a civil case than a deemed admission of a Request for Admission, as well as preclusion of expert testimony and entry of judgment, so a balancing of the equities emphasizing the nature and motive of the non-compliant party’s conduct is mandatory.
The mere failure of an unrepresented party to comply with discovery rules does not amount to “willfulness or bad faith” as contemplated by case law.
As concerns potential prejudice occasioned by the failure to comply with discovery, the record discloses no hardship to the party seeking sanctions which is not readily remedied upon remand.
The party never filed a Motion to Compel Discovery so as to invoke the trial court’s authority in the interest of advancing the litigation and minimizing delay, which has now been extended by the necessity of this appeal. Moreover, the violations in question did not result in a loss of evidence favorable to the movant. Compliance with the discovery requests in question, even at this late date, would allow the matter to proceed to a full and fair resolution.Compared to the extraordinary prejudice of a sanction order that the trial court has since repudiated, the prejudice to the movant imposed by the failure to comply with discovery is minimal.
Monday, January 26, 2009
contracts - right-to-cure clause - incurable breach
LJL Transportation v. Pilot Air Freight Corp. - Pa. Supreme Court - January 22, 2009
http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-60-2008mo.pdf
Held: A party’s conduct in breaching a francise agreement can may justify its immediate termination, even if the contract includes an express provision granting the breaching party the right to cure before the contract is terminated, when there is a material breach of the contract so serious it goes directly to the heart and essence of the contract, rendering the breach incurable.
The wrongful conduct consisted of plaintiff's admittedly dishonest, indefensible diversion of business to defendant's competitor.
The court looked to the law of other states, which had adopted the “Williston view,” which provides, “Unless a contract provision for termination for breach is in terms exclusive . . . it is a cumulative remedy and does not bar the ordinary remedy of termination for a breach which is material or which goes to the root of the matter or essence of the contract.” Williston, A Treatise on The Law of Contracts, § 842, 165 n.1 (3d. ed. 1962).
http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-60-2008mo.pdf
Held: A party’s conduct in breaching a francise agreement can may justify its immediate termination, even if the contract includes an express provision granting the breaching party the right to cure before the contract is terminated, when there is a material breach of the contract so serious it goes directly to the heart and essence of the contract, rendering the breach incurable.
The wrongful conduct consisted of plaintiff's admittedly dishonest, indefensible diversion of business to defendant's competitor.
The court looked to the law of other states, which had adopted the “Williston view,” which provides, “Unless a contract provision for termination for breach is in terms exclusive . . . it is a cumulative remedy and does not bar the ordinary remedy of termination for a breach which is material or which goes to the root of the matter or essence of the contract.” Williston, A Treatise on The Law of Contracts, § 842, 165 n.1 (3d. ed. 1962).
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