Schneider v. UCBR - Cmwlth Court- June 18, 2010
http://www.pacourts.us/OpPosting/Cwealth/out/2238CD09_6-18-10.pdf
Tuesday, June 22, 2010
Thursday, June 17, 2010
arbitration - one-sidedness; belated resort to arbitration
Nino v. The Jewelry Exchange - 3d Cir. - June 15, 2010
Rajae Nino brought this action against his former employer, alleging that he was discriminated against on account of his gender and national origin. After litigating the matter before the District Court for fifteen months, the employer invoked an arbitration provision in Nino’s employment contract and moved the District Court to compel the parties to arbitrate their dispute.
Nino opposed the motion, arguing (1) that the arbitration agreement was unconscionable and, therefore, unenforceable, and (2) that by engaging in extensive litigation of this dispute, the employer had waived its right to compel arbitration.
The District Court concluded that although the arbitration agreement contained unconscionable terms, those provisions could be severed from the contract and the remainder of its terms could be enforced. The Court then concluded that the employer did not, through its litigation conduct, waive its right to compel arbitration. We disagree.
In our view, the pervasively one-sided nature of the arbitration agreement’s terms demonstrates that the employer did not seek to use arbitration as a legitimate means for dispute resolution. Instead, the employer created a system that was designed to give it an unfair advantage through rules that impermissibly restricted employees’ access to arbitration and
that gave the employer an undue influence over the selection of the arbitrator.We hold that it is not appropriate, in the face of such pervasive one-sidedness, to sever the unconscionable provisions from the remainder of the arbitration agreement. We further conclude that the employer, by engaging in protracted litigation of this matter before belatedly seeking to arbitrate its dispute, waived its right to compel arbitration. We will thus reverse the District Court’s order compelling the parties to arbitrate.
Monday, June 14, 2010
attorney fees - EAJA - offset - indiv. debt owed to government
Astrue v. Ratliff - US Supreme Court - June 14, 2010 - http://www.supremecourt.gov/opinions/09pdf/08-1322.pdf
SUPREME COURT OF THE UNITED STATES
Syllabus
ASTRUE, COMMISSIONER OF SOCIAL SECURITY v. RATLIFF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 08–1322. Argued February 22, 2010—Decided June 14, 2010
Respondent Ratliff was Ruby Kills Ree’s attorney in Ree’s successful suit against the United States Social Security Administration for Social Security benefits. The District Court granted Ree’s unopposed motion for attorney’s fees under the Equal Access to Justice Act(EAJA), which provides, inter alia, that "a court shall award to a prevailing party . . . fees and other expenses . . . in any civil action . . . brought by or against the United States." 28 U. S. C. §2412(d)(1)(A)
Held:
A §2412(d)(1)(A) attorney’s fees award is payable to the litigant and is therefore subject to an offset to satisfy the litigant’s preexisting debt to the Government. Pp. 3–11.(a) Nothing in EAJA contradicts this Court’s longstanding view that the term "prevailing party" in attorney’s fees statutes is a "term of art" that refers to the prevailing litigant. See, e.g., Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 603. That the term has its usual meaning in subsection (d)(1)(A) is underscored by the fact that subsection (d)(1)(B) and other provisions clearly distinguish the party who receives the fees award (the litigant) from the attorney who performed the work that generated the fees. The Court disagrees with Ratliff’s assertion that subsection (d)(1)(A)’s use of the verb "award" nonetheless renders §2412(d) fees payable directly to a prevailingparty’s attorney. The dictionaries show that, in the litigation context, the transitive verb "award" has the settled meaning of giving or assigning by judicial decree. Its plain meaning in subsection (d)(1)(A) is thus that the court shall "give or assign by . . . judicial determination" to the "prevailing party" (here, Ree) attorney’s fees in theamount sought and substantiated under, inter alia, subsection (d)(1)(B). That the prevailing party’s attorney may have a beneficial interest or a contractual right in the fees does not alter this conclusion. Pp. 3–6.
(b) The Court rejects Ratliff’s argument that other EAJA provisions, combined with the Social Security Act (SSA) and the Government’s practice of paying some EAJA fees awards directly to attorneys in Social Security cases, render §2412(d) at least ambiguous onthe question presented here, and that these other provisions resolvethe ambiguity in her favor. Even accepting that §2412(d) is ambiguous¸ the provisions and practices Ratliff identifies do not alter theCourt’s conclusion. Subsection (d)(1)(B) and other provisions differentiate between attorneys and prevailing parties, and treat attorneys on par with other service providers, in a manner that forecloses the conclusion that attorneys have a right to direct payment of subsection (d)(1)(A) awards. Nor is the necessity of such payments established by the SSA provisions on which Ratliff relies. That SSA fees awards are payable directly to a prevailing claimant’s attorney, see 42 U. S. C. §406(b)(1)(A)
11. 540 F. 3d 800, reversed and remanded.
THOMAS, J., delivered the opinion for a unanimous Court. SO-
TOMAYOR, J., filed a concurring opinion, in which STEVENS and GINSBURG, JJ., joined.
__._,_.___
contracts - parol evidence - fraud in the inducement - no contract
Kropa v. Cabot Oil and Gas Corporation - MD Pa. - June 9, 2010
http://www.pamd.uscourts.gov/opinions/munley/08v551a.pdf
Defendant's motion to dismiss denied on Plaintiffs’ fraudulent inducement claim concerning and oil/gas lease. Plaintiffs contend that defendant’s agents assured them that the company would never pay more than $25.00 per acre. They relied on this statement and signed the lease, only to discover later that these statements were false and that others had signed far more lucrative deals with defendant. Defendant also represented to plaintiffs that if they failed to sign a lease defendant would negotiate leases with neighbors and capture the gas under plaintiffs’ land through the rule of capture, leaving plaintiffs without a lease or gas on their land. According to the complaint, these statements all were false and all induced plaintiff to sign the lease.
The parol evidence rule is a doctrine of contract interpretation. The rule works “‘to preserve the integrity of written agreements by refusing to permit the contracting parties to attempt to alter the import of their contract through the use of contemporaneous [or prior] oral declarations.’” Hamilton Bank v. Rulnick, 136 (Pa. Super. Ct. 1984) (quoting LaDonne v. Kessler, 389 A.2d 1123, 1126 (Pa. Super. Ct. 1978)).
As defined in Pennsylvania, the parol evidence rule provides that: Where parties, without fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract, . . . and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence. Mellon Bank Corp. v. First Union Real Estate Equity & Mortg. Inv., 951 F.2d 1399, 1405 (3d Cir. 1991) (quoting Gianni v. Russel & Co., 126 A. 791 (Pa. 1924)).
Thus, for the parol evidence rule to apply, a court must answer three questions: “(1) Have the parties made a contract? (2) Is that contract void or voidable because of illegality, fraud, mistake, or any other reason? (3) Did the parties assent to a particular writing as the complete and accurate ‘integration’ of that contract.” CORBIN ON CONTRACTS § 573. If the answer to any of these questions is “no,” then the rule does not apply. Id.
As the Third Circuit Court of Appeals has pointed out, “‘no contract, no parol evidence rule.’” Mellon, 951 F.2d at 1408. The court will deny the motion for reconsideration on these grounds.
The defendant’s argument that the court found the written agreement between the parties to be fully integrated is only a part of the inquiry into whether the parol evidence rule should apply, and it is not material to the issue of whether a contract actually exists between the parties.
The purpose of the parol evidence rule is to give meaning to the writings of parties who sign valid contracts. Here, the plaintiff alleges that no valid contract exits, because the defendant induced plaintiff to sign the contract through fraud. Plaintiff does not ask the court to interpret the terms of the contract between the parties by using oral or written evidence outside that document, but instead asks the court to find that no contract existed between the parties because of fraud in the inducement. “[E]vidence of fraud in the inducement will suspend the parol evidence rule because fraud prevents formation of a valid contract.” Mellon, 951 F.2d at 1408; see also, CORBIN ON CONTRACTS § 580 (noting that “fraud in the inducement of assent, or an antecedent mistake by one known to the other, may make the contract voidable without preventing its existence, and without showing that the writing was not agreed on as a complete integration of its terms.”). The parol evidence rule does not prevent an inquiry into the existence of a contract itself.
http://www.pamd.uscourts.gov/opinions/munley/08v551a.pdf
Defendant's motion to dismiss denied on Plaintiffs’ fraudulent inducement claim concerning and oil/gas lease. Plaintiffs contend that defendant’s agents assured them that the company would never pay more than $25.00 per acre. They relied on this statement and signed the lease, only to discover later that these statements were false and that others had signed far more lucrative deals with defendant. Defendant also represented to plaintiffs that if they failed to sign a lease defendant would negotiate leases with neighbors and capture the gas under plaintiffs’ land through the rule of capture, leaving plaintiffs without a lease or gas on their land. According to the complaint, these statements all were false and all induced plaintiff to sign the lease.
The parol evidence rule is a doctrine of contract interpretation. The rule works “‘to preserve the integrity of written agreements by refusing to permit the contracting parties to attempt to alter the import of their contract through the use of contemporaneous [or prior] oral declarations.’” Hamilton Bank v. Rulnick, 136 (Pa. Super. Ct. 1984) (quoting LaDonne v. Kessler, 389 A.2d 1123, 1126 (Pa. Super. Ct. 1978)).
As defined in Pennsylvania, the parol evidence rule provides that: Where parties, without fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract, . . . and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence. Mellon Bank Corp. v. First Union Real Estate Equity & Mortg. Inv., 951 F.2d 1399, 1405 (3d Cir. 1991) (quoting Gianni v. Russel & Co., 126 A. 791 (Pa. 1924)).
Thus, for the parol evidence rule to apply, a court must answer three questions: “(1) Have the parties made a contract? (2) Is that contract void or voidable because of illegality, fraud, mistake, or any other reason? (3) Did the parties assent to a particular writing as the complete and accurate ‘integration’ of that contract.” CORBIN ON CONTRACTS § 573. If the answer to any of these questions is “no,” then the rule does not apply. Id.
As the Third Circuit Court of Appeals has pointed out, “‘no contract, no parol evidence rule.’” Mellon, 951 F.2d at 1408. The court will deny the motion for reconsideration on these grounds.
The defendant’s argument that the court found the written agreement between the parties to be fully integrated is only a part of the inquiry into whether the parol evidence rule should apply, and it is not material to the issue of whether a contract actually exists between the parties.
The purpose of the parol evidence rule is to give meaning to the writings of parties who sign valid contracts. Here, the plaintiff alleges that no valid contract exits, because the defendant induced plaintiff to sign the contract through fraud. Plaintiff does not ask the court to interpret the terms of the contract between the parties by using oral or written evidence outside that document, but instead asks the court to find that no contract existed between the parties because of fraud in the inducement. “[E]vidence of fraud in the inducement will suspend the parol evidence rule because fraud prevents formation of a valid contract.” Mellon, 951 F.2d at 1408; see also, CORBIN ON CONTRACTS § 580 (noting that “fraud in the inducement of assent, or an antecedent mistake by one known to the other, may make the contract voidable without preventing its existence, and without showing that the writing was not agreed on as a complete integration of its terms.”). The parol evidence rule does not prevent an inquiry into the existence of a contract itself.
Tuesday, June 08, 2010
welfare - GA - disability - proof
Marshall v. DPW - June 7, 2010 - Cmwlth. Court - unreported memorandum opinion
http://www.pacourts.us/OpPosting/Cwealth/out/1835CD09_6-7-10.pdf
Applicant did not provide proof of his alleged physical disability. An applicant seeking GA benefits based on a physical disability must provide documentation verifying a disability precluding gainful employment. 55 Pa. Code §141.61(c)(1)(iii)(A). This documentation must be on a form provided by DPW and completed by a physician or a psychologist. 55 Pa. Code §141.61(c)(1)(iii)(B); see 62 P.S. §432(3)(i)(C) (“The verification of the [applicant’s] physical … disability must be established by written documentation in a form prescribed by [DPW] and must be based on acceptable clinical and laboratory diagnostic techniques, rather than a statement of symptoms by the applicant….”).
Here, Marshall’s physician completed and signed two Form PA 1663s, each of which indicated that Marshall was not disabled at the time of his application for benefits. In fact, the most recent form, dated January 13, 2009, indicated that Marshall was presently employable.
The applicant got a fair hearing. His inability to present witnesses on his behalf resulted from his own failure to subpoena them. An applicant for GA benefits has the right to appeal DPW’s determination and to receive a fair hearing. See 55 Pa. Code §275.1(a). During the hearing, the applicant shall have the opportunity “[t]o present evidence on his own behalf, to bring witnesses or documents he deems necessary, and to confront and cross-examine witnesses the county office, administering agency or social service provider will produce to support its decision or action.” 55 Pa. Code §275.3(a)(1). The applicant also has the right “[t]o request a subpoena from the hearing officer for the production of evidence or witnesses that [the applicant] feels will be essential in obtaining necessary facts.” 55 Pa. Code § 275.3(a)(2).
Here, Marshall failed to request subpoenas for any witnesses he wished to call on his behalf and failed to make arrangements for any such individuals to testify. (N.T., 2/17/09, at 9.) DPW is not obligated to secure witnesses or evidence for an applicant to present at the hearing. See Integrated Behavioral Health Services v. Department of Public Welfare, 871 A.2d 296, 300 (Pa. Cmwlth. 2005).
http://www.pacourts
Applicant did not provide proof of his alleged physical disability. An applicant seeking GA benefits based on a physical disability must provide documentation verifying a disability precluding gainful employment. 55 Pa. Code §141.61(c)(1)
Here, Marshall’s physician completed and signed two Form PA 1663s, each of which indicated that Marshall was not disabled at the time of his application for benefits. In fact, the most recent form, dated January 13, 2009, indicated that Marshall was presently employable.
The applicant got a fair hearing. His inability to present witnesses on his behalf resulted from his own failure to subpoena them. An applicant for GA benefits has the right to appeal DPW’s determination and to receive a fair hearing. See 55 Pa. Code §275.1(a). During the hearing, the applicant shall have the opportunity “[t]o present evidence on his own behalf, to bring witnesses or documents he deems necessary, and to confront and cross-examine witnesses the county office, administering agency or social service provider will produce to support its decision or action.” 55 Pa. Code §275.3(a)(1). The applicant also has the right “[t]o request a subpoena from the hearing officer for the production of evidence or witnesses that [the applicant] feels will be essential in obtaining necessary facts.” 55 Pa. Code § 275.3(a)(2).
Here, Marshall failed to request subpoenas for any witnesses he wished to call on his behalf and failed to make arrangements for any such individuals to testify. (N.T., 2/17/09, at 9.) DPW is not obligated to secure witnesses or evidence for an applicant to present at the hearing. See Integrated Behavioral Health Services v. Department of Public Welfare, 871 A.2d 296, 300 (Pa. Cmwlth. 2005).
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Thursday, May 27, 2010
UC - voluntary quit - working conditions, health reasons
Astolfi v. UCBR - Cmwlth. Court - May 27, 2010 (2-1 decision)
http://www.pacourts.us/OpPosting/Cwealth/out/1866CD09_5-27-10.pdf
The court reversed a UCBR decision in favor of the claimant, ruling "[c]oncluding that the facts, as found, do not support the Board’s conclusion that Claimant resigned from her job for necessitous and compelling reasons." It found that her work situation was "uncomfortable but not intolerable," and that a quit for health reasons was negated by claimant's failure to mention those reasons to her employer.
Claimant testified that a chaotic work environment caused her to develop high blood pressure and to incur bouts with hives. Claimant testified that two doctors had advised her to resign from her job. In support, she introduced a note from her psychiatrist stating that Claimant “expressed to me severe stress from the conditions at her work.” Claimant also offered a note from her chiropractor opining that Claimant’s headaches “were likely associated with clenching of the jaw and cervical spine dysfunction.” Dr. Kelly observed that clenching of the teeth is a “direct response to stress,” and that Claimant had complained of work stress on several occasions. Dr. Kelly wrote that she had “seen a difference in [Claimant’s] health since she left her job.”
Claimant believed her resignation was medically necessary, and reiterated at a remand hearing that two doctors had advised her to resign. Claimant offered a follow-up letter from her chiropractor stating that "I had asked [Claimant] on several occasions if it would be possible for her to leave her job due to medical reasons. Her current occupation was adversely affecting her health and I felt that it was necessary for her to leave her job if she was going to improve. Her health was declining largely due to the ongoing stress at her work place." At the remand hearing, the employer, a dentist, disputed Claimant’s characterization of the work atmosphere and the events leading up to Claimant’s resignation.
The Board reversed the Referee’s denial of benefits and granted Claimant’s claim for benefits. Acknowledging that verbal reprimands do not justify a voluntary quit, the Board also observed that this is not the case for verbal abuse. The Board credited Claimant’s testimony that she was “verbally abused” by the employer and found, further, that Claimant took reasonable steps to preserve her employment by presenting her concerns to the employer.
The court found, as a matter of law, that claimant had not shown a necessitous and compelling reason to quit her job. Whether a claimant had cause of a necessitous and compelling nature for leaving work is a question of law subject to this Court’s review. Wasko v. UCBR, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). Based upon the record before us, we cannot say that Claimant’s work environment was intolerable or that a reasonable person would have acted in the same manner.
http://www.pacourts
The court reversed a UCBR decision in favor of the claimant, ruling "[c]oncluding that the facts, as found, do not support the Board’s conclusion that Claimant resigned from her job for necessitous and compelling reasons." It found that her work situation was "uncomfortable but not intolerable,
Claimant testified that a chaotic work environment caused her to develop high blood pressure and to incur bouts with hives. Claimant testified that two doctors had advised her to resign from her job. In support, she introduced a note from her psychiatrist stating that Claimant “expressed to me severe stress from the conditions at her work.” Claimant also offered a note from her chiropractor opining that Claimant’s headaches “were likely associated with clenching of the jaw and cervical spine dysfunction.” Dr. Kelly observed that clenching of the teeth is a “direct response to stress,” and that Claimant had complained of work stress on several occasions. Dr. Kelly wrote that she had “seen a difference in [Claimant’s] health since she left her job.”
Claimant believed her resignation was medically necessary, and reiterated at a remand hearing that two doctors had advised her to resign. Claimant offered a follow-up letter from her chiropractor stating that "I had asked [Claimant] on several occasions if it would be possible for her to leave her job due to medical reasons. Her current occupation was adversely affecting her health and I felt that it was necessary for her to leave her job if she was going to improve. Her health was declining largely due to the ongoing stress at her work place." At the remand hearing, the employer, a dentist, disputed Claimant’s characterization of the work atmosphere and the events leading up to Claimant’s resignation.
The Board reversed the Referee’s denial of benefits and granted Claimant’s claim for benefits. Acknowledging that verbal reprimands do not justify a voluntary quit, the Board also observed that this is not the case for verbal abuse. The Board credited Claimant’s testimony that she was “verbally abused” by the employer and found, further, that Claimant took reasonable steps to preserve her employment by presenting her concerns to the employer.
The court found, as a matter of law, that claimant had not shown a necessitous and compelling reason to quit her job. Whether a claimant had cause of a necessitous and compelling nature for leaving work is a question of law subject to this Court’s review. Wasko v. UCBR, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). Based upon the record before us, we cannot say that Claimant’s work environment was intolerable or that a reasonable person would have acted in the same manner.
Our case law distinguishes normal workplace strains from pressures extreme enough to justify a resignation. As we have explained: Resentment of a reprimand, absent unjust accusations, profane language or abusive conduct …; mere disappointment with wages …; and personality conflicts, absent an intolerable working atmosphere … do not amount to necessitous and compelling causes. Lynn v. UCBR, 427 A.2d 736, 737 (Pa. Cmwlth. 1981).
Claimant was not publicly reprimanded or accused of being a criminal like her counterpart in First Federal. She was not subjected to the kinds of intolerable abusive language experienced by successful claimants in other voluntary quit cases. Claimant’s testimony demonstrated “resentment” and “personality conflicts,” Lynn, 427 A.2d at 737, but not an intolerable work environment. Being “yelled” at for talking too much to patients, which is the worst Claimant suffered, is not comparable to being called names or being unjustly accused of criminal conduct. Her work environment was uncomfortable, but not intolerable.
The majority rejected the dissent's emphasis on the fact that Claimant was advised by her chiropractor to quit her job, stating that a reasonable person suffering from rashes, headaches and high blood pressure caused by circumstances at work would feel compelled to terminate her employment. The majority said that this was "beside the point, since Claimant did not establish the elements necessary to have a compelling medical reason to quit.
Pigeon-holing claimant's argument as one relying solely on health reasons, the majority said that to establish health problems as a compelling reason to quit, the claimant must (1) offer competent testimony that adequate health reasons existed to justify the voluntary termination, (2) have informed the employer of the health problems and (3) be available to work if reasonable accommodations can be made. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982). Failure to meet any one of these conditions bars a claim for unemployment compensation….Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695, 698 (Pa. Cmwlth. 1994) (emphasis added) (citation omitted). Claimant met with the employer to discuss the tension between her coworkers, but she never informed the employer of any health problems or that her chiropractor had advised her to quit. Absent such evidence, Claimant’s alleged health problems are simply not relevant.
Dissent
Here, Employer’s verbal abuse produced pressure on Claimant that was both real and substantial. Indeed, the pressure caused Claimant to suffer from rashes, headaches and high blood pressure. Moreover, any reasonable person suffering such physical maladies as a result of circumstances at work would be compelled to terminate her employment. In fact, Claimant’s physician advised Claimant to do just that. To the extent Employer’s verbal assaults on Claimant were due to personality conflicts, given their effect on Claimant’s health, they were intolerable. A claimant should not be required to continue to endure a work environment that causes such afflictions as rashes, headaches and high blood pressure.
The majority states, “We cannot say on this record that Claimant’s work environment was intolerable or that a reasonable person would have acted in the same manner.” In other words, the majority concludes that: (1) Claimant should continue to tolerate the rashes, headaches and high blood pressure caused by Employer’s insults and yelling; and (2) Claimant’s physician is not a reasonable person for suggesting that Claimant quit her job for the sake of her health. I cannot agree with these conclusions.
The majority also suggests that, pursuant to case law, verbal abuse cannot be a necessitous and compelling reason to leave employment unless it is public, racial or sexual in nature. (Majority op. at 6-7.) However, abusive conduct of any kind is always a necessitous and compelling reason for leaving employment. First Federal Savings Bank v. UCBR, 957 A.2d 811 (Pa. Cmwlth. 2008) (stating that a claimant need not indefinitely subject herself to abusive conduct). Moreover, whether an employer’s conduct is abusive is a question of fact, and the majority acknowledges that the “Board credited Claimant’s testimony that she was ‘verbally abused’ by [Employer].”
Accordingly, I would affirm.
Tuesday, May 25, 2010
consumer - RESPA - perpetrator of Ponzi scheme is not a "loan servicer"
Jones v. ABN AMRO Mortgage Group, et al. - 3d Circuit - May 25, 2010
http://www.ca3.uscourts.gov/opinarch/082353p.pdf
Douglas and Andrea Jones (the “Joneses”) filed suit against, inter alia, Appellees SunTrust Mortgage, Inc. and Countrywide Home Loans, Inc., who were the “lenders” that provided mortgage loans to the Joneses. The Joneses asserted claims for a declaratory judgment, negligence, and violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605. At the heart of the issue before us is a mortgage loan-servicing Ponzi scheme. Of particular interest is whether the perpetrator of the Ponzi scheme can be considered a loan “servicer” under RESPA. The District Court dismissed the Joneses’ Complaint. We will affirm.
http://www.ca3.uscourts.gov/opinarch/082353p.pdf
Douglas and Andrea Jones (the “Joneses”) filed suit against, inter alia, Appellees SunTrust Mortgage, Inc. and Countrywide Home Loans, Inc., who were the “lenders” that provided mortgage loans to the Joneses. The Joneses asserted claims for a declaratory judgment, negligence, and violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605. At the heart of the issue before us is a mortgage loan-servicing Ponzi scheme. Of particular interest is whether the perpetrator of the Ponzi scheme can be considered a loan “servicer” under RESPA. The District Court dismissed the Joneses’ Complaint. We will affirm.
Friday, May 21, 2010
abuse - expungement - founded report - no right to appeal hearing
D.D. v. DPW - Cmwlth Court - May 21, 2010 - unreported memorandum opinion
http://www.pacourts.us/OpPosting/Cwealth/out/1454CD09_5-21-10.pdf
There is no right to appeal from a founded report, based on court adjudication of dependency and abuse in another, independent case.
Unlike the case of an indicated report of abuse, there is no similar provision affording a perpetrator named in a founded report the right to an administrative hearing following the Secretary’s denial of his or her expunction request. K.R. v. Dep’t of Pub. Welfare, 950 A.2d 1069 (Pa. Cmwlth. 2008) (citing J.G. v. Dep’t of Pub. Welfare, 795 A.2d 1089 (Pa. Cmwlth. 2002)).
A founded report is based on a judicial adjudication wherein the government alleging child abuse by the perpetrator met its burden of proving it. C.S. v. Dep’t of Pub. Welfare, 879 A.2d 1274 (Pa. Cmwlth. 2005) . In an expunction request by an individual named as a perpetrator in a founded report, the Secretary may rely on the trial court’s findings of abuse in the underlying judicial adjudication to dismiss the expunction request where the judicial adjudication also named the individual as the perpetrator of the abuse. C.J. v. Dep’t of Pub. Welfare, 960 A.2d 494 (Pa. Cmwlth. 2008) (citing K.R.) An administrative hearing following denial of the expunction request is not mandated because the named perpetrator had a full and fair opportunity to defend against the allegations in the underlying judicial adjudication. Id. That individual cannot thereafter collaterally attack the trial court’s dependency and abuse findings in an expunction request under the CPSL. Id.
http://www.pacourts.us/OpPosting/Cwealth/out/1454CD09_5-21-10.pdf
There is no right to appeal from a founded report, based on court adjudication of dependency and abuse in another, independent case.
Unlike the case of an indicated report of abuse, there is no similar provision affording a perpetrator named in a founded report the right to an administrative hearing following the Secretary’s denial of his or her expunction request. K.R. v. Dep’t of Pub. Welfare, 950 A.2d 1069 (Pa. Cmwlth. 2008) (citing J.G. v. Dep’t of Pub. Welfare, 795 A.2d 1089 (Pa. Cmwlth. 2002)).
A founded report is based on a judicial adjudication wherein the government alleging child abuse by the perpetrator met its burden of proving it. C.S. v. Dep’t of Pub. Welfare, 879 A.2d 1274 (Pa. Cmwlth. 2005) . In an expunction request by an individual named as a perpetrator in a founded report, the Secretary may rely on the trial court’s findings of abuse in the underlying judicial adjudication to dismiss the expunction request where the judicial adjudication also named the individual as the perpetrator of the abuse. C.J. v. Dep’t of Pub. Welfare, 960 A.2d 494 (Pa. Cmwlth. 2008) (citing K.R.) An administrative hearing following denial of the expunction request is not mandated because the named perpetrator had a full and fair opportunity to defend against the allegations in the underlying judicial adjudication. Id. That individual cannot thereafter collaterally attack the trial court’s dependency and abuse findings in an expunction request under the CPSL. Id.
Wednesday, May 19, 2010
UC - voluntary quit - abusive conduct, cursing by employer
Karpowich v. UCBR - Cmwlth Court - May 19, 2010 - unreported memorandum opinion
http://www.pacourts.us/OpPosting/Cwealth/out/2242CD09_5-19-10.pdf
Grant of benefits upheld for claimant whose employer cursed at him on numerous occasions.
An employee who is subject to unjust accusations, abusive conduct or profanity at the workplace has adequate justification to terminate employment and avoid disqualification provided notice of the conduct has been given to the employer. Moskovitz v. UCBR, 635 A.2d 723 (Pa. Comwlth. 1993), citing Forty v. UCBR, 447 A.2d 1078 (Pa. Cmwlth. 1982); Willet v. UCBR, 429 A.2d 1282 (Pa. Cmwlth. 1981). If the employer is already aware of the problem, notice may not be required. Danner v. UCBR, 443 A.2d 1211 (Pa. Comwlth. 1982).
http://www.pacourts
Grant of benefits upheld for claimant whose employer cursed at him on numerous occasions.
An employee who is subject to unjust accusations, abusive conduct or profanity at the workplace has adequate justification to terminate employment and avoid disqualification provided notice of the conduct has been given to the employer. Moskovitz v. UCBR, 635 A.2d 723 (Pa. Comwlth. 1993), citing Forty v. UCBR, 447 A.2d 1078 (Pa. Cmwlth. 1982); Willet v. UCBR, 429 A.2d 1282 (Pa. Cmwlth. 1981). If the employer is already aware of the problem, notice may not be required. Danner v. UCBR, 443 A.2d 1211 (Pa. Comwlth. 1982).
UC - admission into ARD not willful misconduct
Bruce v. UCBR - Cmwlth Court - May 19, 2010 (2-1)
http://www.pacourts.us/OpPosting/Cwealth/out/2227CD09_8-9-10.pdf
Claimant was found ineligible for violating the employer's no call/no show policy, relating to her failure to call because of an arrest, in which she subsequently was admitted to an ARD program.
In order to determine whether her incarceration constituted good cause for not calling in, the Board looked at whether Claimant’s incarceration was through no fault of her own. The Board conceded that, if on remand, Claimant had put forth evidence that “she had been acquitted of the charges,” Claimant’s incarceration, and her subsequent inability to call off from work, would have resulted through no fault of her own, and, as such, “benefits could not be denied” because her failure to call off would constitute good cause. Still, it found that she had committed willful misconduct, in spite of the ARD disposition.
But in the course of the court opinion, it stated that: " Where a claimant is discharged for a criminal act, such as theft, the subsequent acceptance into an ARD program is insufficient proof of willful misconduct. UCBR v. Vereen, 370 A.2d 1228, 1231 (Pa. Cmwlth. 1977)."
Dissent
The dissent argued that the "question is whether Claimant’s incarceration constitutes good cause for her failing to call off work. As the majority states, the Board concedes that, if Claimant had been acquitted of the charges, the Board would have found that her incarceration was through no fault of her own and would have concluded thatClaimant had good cause for violating Employer’s policy and could not be denied benefits. However, because Claimant entered into the ARD program, the Board found that Claimant’s incarceration was her own fault, i.e., that Claimant was guilty of the charges against her. In my view, the Board’s finding lacks support in the law governing ARD and cannot stand.
Because the Board has conceded that Claimant would be entitled to benefits had she been acquitted, because the Rules governing ARD provide that its successful completion results in the dismissal of charges, because the courts have recognized that entrance into the ARD program is not necessarily a confession of guilt and because the courts have likened ARD to acquittal, I would reverse.
http://www.pacourts
Claimant was found ineligible for violating the employer's no call/no show policy, relating to her failure to call because of an arrest, in which she subsequently was admitted to an ARD program.
In order to determine whether her incarceration constituted good cause for not calling in, the Board looked at whether Claimant’s incarceration was through no fault of her own. The Board conceded that, if on remand, Claimant had put forth evidence that “she had been acquitted of the charges,” Claimant’s incarceration, and her subsequent inability to call off from work, would have resulted through no fault of her own, and, as such, “benefits could not be denied” because her failure to call off would constitute good cause. Still, it found that she had committed willful misconduct, in spite of the ARD disposition.
But in the course of the court opinion, it stated that: " Where a claimant is discharged for a criminal act, such as theft, the subsequent acceptance into an ARD program is insufficient proof of willful misconduct. UCBR v. Vereen, 370 A.2d 1228, 1231 (Pa. Cmwlth. 1977)."
Dissent
The dissent argued that the "question is whether Claimant’s incarceration constitutes good cause for her failing to call off work. As the majority states, the Board concedes that, if Claimant had been acquitted of the charges, the Board would have found that her incarceration was through no fault of her own and would have concluded thatClaimant had good cause for violating Employer’s policy and could not be denied benefits. However, because Claimant entered into the ARD program, the Board found that Claimant’s incarceration was her own fault, i.e., that Claimant was guilty of the charges against her. In my view, the Board’s finding lacks support in the law governing ARD and cannot stand.
Because the Board has conceded that Claimant would be entitled to benefits had she been acquitted, because the Rules governing ARD provide that its successful completion results in the dismissal of charges, because the courts have recognized that entrance into the ARD program is not necessarily a confession of guilt and because the courts have likened ARD to acquittal, I would reverse.
Monday, May 17, 2010
custody - jurisdiction - continuing - UCCJEA - significant connection
Rennie v. Rosenthal - Superior Court - May 17, 2010
http://www.pacourts.us/OpPosting/Superior/out/A31007_09.pdf
Pennsylvania courts, which entered the initial custody order, continue to have jurisdiction under 23 Pa.C.S.A. § 5422(a)(1) of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), even where mother and child have lived primarily in another state for the past 6 years, since Pennsylvania continues to have a "significant connection" with the child or one parent or person acting as a parent.
Under the plain meaning of section 5422(a)(1), a court that makes an initial custody determination retains exclusive, continuing jurisdiction until neither the child nor the child and one parent or a person acting as a parent have a significant connection with Pennsylvania and substantial evidence concerning the child’s care, protection, training, and personal relationships is no longer available here. The use of the term “and” requires that exclusive jurisdiction continues in Pennsylvania until both a significant connection to Pennsylvania and the requisite substantial evidence are lacking. In other words, Pennsylvania will retain jurisdiction as long as a significant connection with Pennsylvania exists or substantial evidence is present.
Based upon the evidence, Child and Father have a significant connection to Pennsylvania, which thus retains jurisdiction over the case. As indicated in clear language in the statute, a “significant connection” will be found where one parent resides and exercises parenting time in the state and maintains a meaningful relationship with the child. The statute does not specify that courts must determine that the parent with primary custody of a child has a significant connection with the state to retain jurisdiction. Here, as noted above, the evidence established that Father lives in the Philadelphia area and he and Child have a significant connection to Pennsylvania.
http://www.pacourts.us/OpPosting/Superior/out/A31007_09.pdf
Pennsylvania courts, which entered the initial custody order, continue to have jurisdiction under 23 Pa.C.S.A. § 5422(a)(1) of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), even where mother and child have lived primarily in another state for the past 6 years, since Pennsylvania continues to have a "significant connection" with the child or one parent or person acting as a parent.
Under the plain meaning of section 5422(a)(1), a court that makes an initial custody determination retains exclusive, continuing jurisdiction until neither the child nor the child and one parent or a person acting as a parent have a significant connection with Pennsylvania and substantial evidence concerning the child’s care, protection, training, and personal relationships is no longer available here. The use of the term “and” requires that exclusive jurisdiction continues in Pennsylvania until both a significant connection to Pennsylvania and the requisite substantial evidence are lacking. In other words, Pennsylvania will retain jurisdiction as long as a significant connection with Pennsylvania exists or substantial evidence is present.
Based upon the evidence, Child and Father have a significant connection to Pennsylvania, which thus retains jurisdiction over the case. As indicated in clear language in the statute, a “significant connection” will be found where one parent resides and exercises parenting time in the state and maintains a meaningful relationship with the child. The statute does not specify that courts must determine that the parent with primary custody of a child has a significant connection with the state to retain jurisdiction. Here, as noted above, the evidence established that Father lives in the Philadelphia area and he and Child have a significant connection to Pennsylvania.
Friday, May 14, 2010
employment - Fair Credit Reporting Act
Smith v. HireRight Solutions, Inc. - ED PA. - May 11, 2010
http://www.paed.uscourts.gov/documents/opinions/10D0473P.pdf (20 pp.)
Defendant's motion to dismiss Plaintiff’s Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) denied.
The litigation was initiated as a consumer class action based upon Defendant’s alleged willful violation of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq. (“FCRA”). The action is brought on behalf of the thousands of employment applicants throughout the country who have purportedly been the subject of prejudicial, misleading, and inaccurate background reports performed by Defendant and sold to employers.
According to the facts set forth in the Complaint, Defendant is a consumer reporting agency (“CRA”), which maintains consumer files containing public record information, including the criminal record history of individuals. Defendant sells these consumer files to potential employers – consisting of a customer base of more than 28,000 businesses across the country – wishing to investigate the criminal history of various job applicants. Under the FCRA, Defendant, as a CRA, is required to notify the consumer of the fact that it is reporting public record information and to whom that information is being reported. Defendant must also follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates. The Complaint alleges, however, that, as a matter of practice, Defendant neither notifies the consumer contemporaneously of its reporting of adverse public record information, nor does it maintain strict procedures designed to insure that such information is complete, up-to-date, and accurate. Moreover, according to the Complaint, Defendant regularly reports single incidents multiple times so that the consumer’s criminal record history appears much more serious than it actually is. By the time the consumer is made aware of the inaccurate and duplicative reporting, the report has already been sold to the requesting employer and become the basis of an employment decision.
http://www.paed.
Defendant's motion to dismiss Plaintiff’s Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) denied.
The litigation was initiated as a consumer class action based upon Defendant’s alleged willful violation of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq. (“FCRA”). The action is brought on behalf of the thousands of employment applicants throughout the country who have purportedly been the subject of prejudicial, misleading, and inaccurate background reports performed by Defendant and sold to employers.
According to the facts set forth in the Complaint, Defendant is a consumer reporting agency (“CRA”), which maintains consumer files containing public record information, including the criminal record history of individuals. Defendant sells these consumer files to potential employers – consisting of a customer base of more than 28,000 businesses across the country – wishing to investigate the criminal history of various job applicants. Under the FCRA, Defendant, as a CRA, is required to notify the consumer of the fact that it is reporting public record information and to whom that information is being reported. Defendant must also follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates. The Complaint alleges, however, that, as a matter of practice, Defendant neither notifies the consumer contemporaneously of its reporting of adverse public record information, nor does it maintain strict procedures designed to insure that such information is complete, up-to-date, and accurate. Moreover, according to the Complaint, Defendant regularly reports single incidents multiple times so that the consumer’s criminal record history appears much more serious than it actually is. By the time the consumer is made aware of the inaccurate and duplicative reporting, the report has already been sold to the requesting employer and become the basis of an employment decision.
Thursday, May 13, 2010
UC - employee v. indpt. contractor
Resource Staffing v. UCBR - Cmwlth. Court - May 13, 2010
http://www.pacourts.us/OpPosting/Cwealth/out/1875CD09_5-13-10.pdf
Claimant held to have been disqualified under 43 P.S. §802(h), which provides that an employee shall be ineligible for compensation for any week in which he is engaged in self-employment.
Claimant is an experienced Microsoft systems engineer and administrator. RSI, an information technology consulting agency, located Claimant’s resume on Monster.com and offered him a six-month contract position. Claimant signed a Contractor Agreement on October 30, 2006, and he worked for Carpenter Technology (the client), at the client’s facility, from November 13, 2006, through September 20, 2007.
Section 4(l)(2)(B) of the Law creates a presumption that an individual working for wages is an employee. Beacon Flag Car Company, Inc. v. UCBR, 910 A.2d 103 (Pa. Cmwlth. 2006). A putative employer has the burden to overcome this presumption by demonstrating that: (1) the individual was free from control or direction in the performance of his work;6 and (2) the individual was customarily engaged in an independently established trade, occupation, profession or business while providing such services.
We agree with RSI that the record does not support the Board’s pertinent findings of fact; to the contrary, the record reflects that RSI did not control or have the authority to control Claimant’s work or manner of work. Claimant himself testified that RSI did not provide him with his daily assignments. Instead, Claimant testified that he was given work each day by a manager employed by the client and that he was supervised by numerous individuals who worked for the client.7 (R.R. at 17a, 25a.) This testimony is consistent with the terms of the Contractor Agreement, which state that Claimant shall have the discretion to control the means and manner of his work and that the evaluation of his performance shall be made by the client.
We conclude that the Board’s analysis distorts the evidence. The evidence of record indicates that RSI exercised the minimal amount of control necessary to ensure the quality of services provided to the client. Therefore, we conclude that the Board’s contrary findings of fact are not supportedby substantial evidence and that RSI satisfied its burden to demonstrate that it did not control Claimant’s work or manner of performance.
The second prong of the independent contractor test focuses on whether a claimant was engaged in an independently established trade. Viktor, Ltd. v. Department of Labor and Industry, 586 Pa. 196, 892 A.2d 781 (Pa. 2006). The following factors are relevant in determining if a claimant operated independently: (1) whether the individual was capable of performing the activities in question to anyone who wished to avail themselves of the services; and (2) whether the nature of the business compelled the individual to look to only a single employer for the continuation of such services. Krum v. UCBR, 689 A.2d 330 (Pa. Cmwlth. 1997).
Claimant was not compelled to look to one employer for the continuation of services; Claimant was permitted to provide services to RSI, the client or other employers. In addition, although the Contractor Agreement included a non-compete clause, this Court has repeatedly held that the inclusion of a non-compete clause, by itself, does not establish an employee and employer relationship. Beacon. Thus, we conclude that the evidence does not support the Board’s determination but, instead, establishes that RSI satisfied its burden to demonstrate that Claimant operated independently.
Because we conclude that Claimant was an independent contractor, we hold that Claimant is ineligible for unemployment benefits pursuant to section 402(h) of the Law. Accordingly, we reverse the decision of the Board.
http://www.pacourts.us/OpPosting/Cwealth/out/1875CD09_5-13-10.pdf
Claimant held to have been disqualified under 43 P.S. §802(h), which provides that an employee shall be ineligible for compensation for any week in which he is engaged in self-employment.
Claimant is an experienced Microsoft systems engineer and administrator. RSI, an information technology consulting agency, located Claimant’s resume on Monster.com and offered him a six-month contract position. Claimant signed a Contractor Agreement on October 30, 2006, and he worked for Carpenter Technology (the client), at the client’s facility, from November 13, 2006, through September 20, 2007.
Section 4(l)(2)(B) of the Law creates a presumption that an individual working for wages is an employee. Beacon Flag Car Company, Inc. v. UCBR, 910 A.2d 103 (Pa. Cmwlth. 2006). A putative employer has the burden to overcome this presumption by demonstrating that: (1) the individual was free from control or direction in the performance of his work;6 and (2) the individual was customarily engaged in an independently established trade, occupation, profession or business while providing such services.
We agree with RSI that the record does not support the Board’s pertinent findings of fact; to the contrary, the record reflects that RSI did not control or have the authority to control Claimant’s work or manner of work. Claimant himself testified that RSI did not provide him with his daily assignments. Instead, Claimant testified that he was given work each day by a manager employed by the client and that he was supervised by numerous individuals who worked for the client.7 (R.R. at 17a, 25a.) This testimony is consistent with the terms of the Contractor Agreement, which state that Claimant shall have the discretion to control the means and manner of his work and that the evaluation of his performance shall be made by the client.
We conclude that the Board’s analysis distorts the evidence. The evidence of record indicates that RSI exercised the minimal amount of control necessary to ensure the quality of services provided to the client. Therefore, we conclude that the Board’s contrary findings of fact are not supportedby substantial evidence and that RSI satisfied its burden to demonstrate that it did not control Claimant’s work or manner of performance.
The second prong of the independent contractor test focuses on whether a claimant was engaged in an independently established trade. Viktor, Ltd. v. Department of Labor and Industry, 586 Pa. 196, 892 A.2d 781 (Pa. 2006). The following factors are relevant in determining if a claimant operated independently: (1) whether the individual was capable of performing the activities in question to anyone who wished to avail themselves of the services; and (2) whether the nature of the business compelled the individual to look to only a single employer for the continuation of such services. Krum v. UCBR, 689 A.2d 330 (Pa. Cmwlth. 1997).
Claimant was not compelled to look to one employer for the continuation of services; Claimant was permitted to provide services to RSI, the client or other employers. In addition, although the Contractor Agreement included a non-compete clause, this Court has repeatedly held that the inclusion of a non-compete clause, by itself, does not establish an employee and employer relationship. Beacon. Thus, we conclude that the evidence does not support the Board’s determination but, instead, establishes that RSI satisfied its burden to demonstrate that Claimant operated independently.
Because we conclude that Claimant was an independent contractor, we hold that Claimant is ineligible for unemployment benefits pursuant to section 402(h) of the Law. Accordingly, we reverse the decision of the Board.
Thursday, May 06, 2010
standing - associations
Energy Conservation Council v. PUC - Cmwlth. Court - May 6, 2010
http://www.pacourts.us/OpPosting/Cwealth/out/51CD09_5-6-10.pdf
An association was held to have standing to challenge a PUC ruling concerning the siting of utility lines.
If a party is not adversely affected in any way by the determination being challenged, the party is not aggrieved and, thereby, has no standing to obtain a judicial resolution of the challenge. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280 (1975). “[I]t is not sufficient for the person claiming to be ‘aggrieved’ to assert the common interest of all citizens in procuring obedience to the law.” Id. at 192, 346 A.2d at 280-81. In order to be aggrieved, a party must have a substantial interest in the subject matter of the litigation, the interest must be direct, and the interest must be immediate. Id. The substantial interest requirement means that “there must be some discernable adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law.” Id. at 195, 346 A.2d at 282. A direct interest “means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which [the person] complains.” Id. Finally, the interest must “be ‘immediate’ and ‘not a remote consequence of the judgment.’” Id. at 197, 346 A.2d at 283 (quoting Keystone Raceway Corp. v. State Harness Racing Commission, 405 Pa. 1, 7-8, 173 A.2d 97, 100 (1961)).
An association may have standing as a representative of its members. Tripps Park v. PUC, 415 A.2d 967, 970 (Pa. Cmwlth. 1980). Thus, as long as an organization “has at least one member who has or will suffer a direct, immediate, and substantial injury to an interest as a result of the challenged action[, i.e., is aggrieved, the organization] has standing.” Parents United for Better Schools v. School District of Philadelphia, 646 A.2d 689, 692 (Pa. Cmwlth. 1994) (PUBS). Tripps Park, 415 A.2d at 970.
A review of ECC’s protest and the list of its members clearly reveals that ECC has standing to appeal the PUC’s determination. ECC has at least sixteen members that are located in and around the area in which the facilities, including the potentially 200-foot tall tower will be located. Nine of ECC’s members are located within the proposed rights of way for the facilities. Further, ECC members testified as to the impacts the siting, construction, operation, and maintenance of the facilities would have on them, their properties, their businesses, and their communities. Additionally, ECC members include affected ratepayers. The ECC and its members, some of whom own property within the rights of way or are affected ratepayers, have an interest in the PUC’s determination that is more than just the interest shared by all citizens to prevent the construction of a HV transmission line. Moreover, the harm alleged by the ECC on behalf of its members, including increased rates and decreased property values, is directly caused by the PUC’s approval of the facilities applications.
http://www.pacourts.us/OpPosting/Cwealth/out/51CD09_5-6-10.pdf
An association was held to have standing to challenge a PUC ruling concerning the siting of utility lines.
If a party is not adversely affected in any way by the determination being challenged, the party is not aggrieved and, thereby, has no standing to obtain a judicial resolution of the challenge. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280 (1975). “[I]t is not sufficient for the person claiming to be ‘aggrieved’ to assert the common interest of all citizens in procuring obedience to the law.” Id. at 192, 346 A.2d at 280-81. In order to be aggrieved, a party must have a substantial interest in the subject matter of the litigation, the interest must be direct, and the interest must be immediate. Id. The substantial interest requirement means that “there must be some discernable adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law.” Id. at 195, 346 A.2d at 282. A direct interest “means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which [the person] complains.” Id. Finally, the interest must “be ‘immediate’ and ‘not a remote consequence of the judgment.’” Id. at 197, 346 A.2d at 283 (quoting Keystone Raceway Corp. v. State Harness Racing Commission, 405 Pa. 1, 7-8, 173 A.2d 97, 100 (1961)).
An association may have standing as a representative of its members. Tripps Park v. PUC, 415 A.2d 967, 970 (Pa. Cmwlth. 1980). Thus, as long as an organization “has at least one member who has or will suffer a direct, immediate, and substantial injury to an interest as a result of the challenged action[, i.e., is aggrieved, the organization] has standing.” Parents United for Better Schools v. School District of Philadelphia, 646 A.2d 689, 692 (Pa. Cmwlth. 1994) (PUBS). Tripps Park, 415 A.2d at 970.
A review of ECC’s protest and the list of its members clearly reveals that ECC has standing to appeal the PUC’s determination. ECC has at least sixteen members that are located in and around the area in which the facilities, including the potentially 200-foot tall tower will be located. Nine of ECC’s members are located within the proposed rights of way for the facilities. Further, ECC members testified as to the impacts the siting, construction, operation, and maintenance of the facilities would have on them, their properties, their businesses, and their communities. Additionally, ECC members include affected ratepayers. The ECC and its members, some of whom own property within the rights of way or are affected ratepayers, have an interest in the PUC’s determination that is more than just the interest shared by all citizens to prevent the construction of a HV transmission line. Moreover, the harm alleged by the ECC on behalf of its members, including increased rates and decreased property values, is directly caused by the PUC’s approval of the facilities applications.
Tuesday, May 04, 2010
nursing - license - denial - criminal convictions
Bethea-Tumani v. State Board of Nursing - Cmwlth Court - April 2010
http://www.pacourtsIn this appeal, Glecina Bethea-Tumani1 (Applicant) petitions for review of a final adjudication and order of the State Board of Nursing (Board), denying her application for a license as a registered nurse by examination under the Professional Nursing Law (Law). In April 1994, Applicant pled guilty to aggravated assault, a felony. In July 2008, she pled guilty to insurance fraud and conspiracy, two misdemeanors. She applied to the Board for a license on or about September 8, 2008. In its final adjudication and order, the Board denied Applicant’s license application based on these convictions. We affirm.
adequate findings -- While we agree with Applicant that the Board could have issued an opinion with more detailed factual findings regarding her asserted remorsefulness and personal accomplishments, we cannot conclude that the Board’s findings and conclusions are so lacking as to not meet the minimal requirements for an adjudication under Section 507 of the Administrative Agency Law. A review of the adjudication reveals that the Board made very specific findings of fact regarding the convictions and the potentially mitigating circumstances surrounding the convictions, as well as findings regarding Applicant’s professional achievements and work history. A review of the adjudication as a whole reveals that the Board merely gave more weight to the convictions than to the mitigating circumstances and Applicant’s statements of remorse and reform when reaching its determination. Under these circumstances, we must conclude that the adjudication is sufficient to allow effective appellate review under Section 507 of the Administrative Agency Law.
remotness of conviction - Applicant further contends that the Board erred in considering her conviction that occurred fourteen years earlier. Under these circumstances, we reject Applicant’s argument that the Board was per se prohibited from considering Applicant’s earlier conviction. Given the circumstances of this case, in particular the very recent conviction, we cannot conclude that the Board erred in considering the earlier conviction. Moreover, we note that even if the Board had erred in considering the earlier conviction, sufficient evidence exists to support the Board’s denial based solely on the recent insurance fraud and conspiracy conviction.
mitigating evidence - A board may give greater weight to the seriousness of a respondent’s criminal convictions than to mitigating evidence. Burnworth v. State Bd. of Vehicle Mfrs., Dealers and Salespersons, 589 A.2d 294, 297 (Pa. Cmwlth. 1991). Absent bad faith, fraud, capricious action or flagrant abuse of discretion, a reviewing court will not inquire into the wisdom of an administrative agency’s =discretionary action or into the details or manner of executing that action.
credibility determination based on written transcript is permitted - This Court has held that administrative adjudicators may determine credibility from the reading of a transcript.” Pellizzeri, 856 A.2d at 301. Even Daniels, which we do not concede applies, does not require that credibility determinations be made based on “live” testimony. While credibility determinations based on a witness’ demeanor may have been beneficial in this case, the Board did not err when it simply reviewed the record of the proceedings provided to it.
Thursday, April 22, 2010
housing - sec. 8 - housing quality standards - no private right of action - municipal liability - state-created danger
McKinney et al. v. Philadelphia Housing Authority - ED Pa. - April 20, 2010
http://www.paed.uscourts.gov/documents/opinions/10D0390P.pdf
No private right of action based on housing quality standard provisions in statute/regulations
http://www.paed.uscourts.gov/documents/opinions/10D0390P.pdf
No private right of action based on housing quality standard provisions in statute/regulations
The cases indicate an identifiable taxonomy,where certain kinds of statutorylanguage clearly create personal rights and other kinds do not. When the subject of the statutory language is the party for whose benefit the statute is intended, such as in Titles VI and IX (“No person . . . shall be subjected to discrimination”) Congress has shown an “unmistakable focus on the benefited class” and it is clear that the statute confers a personal right. See Cannon, 441 U.S. at 691–93.
When the subject of the statutory language is not the intended beneficiary, but the statutory provision mandates that a regulated entity provide an enumerated right to an enumerated beneficiary, the Third Circuit has concluded that the statute creates personal rights. This is because these cases are “difficult, if not impossible, as a linguistic matter, to distinguish” from cases in which the intended beneficiary of the statute is the subject of the statutory language. See Sabree, 376 F.3d at 190. Examples include the statutory language in Sabree, whichmandated that statemedical assistance plans ensure that medical assistance shall be furnishedwith reasonable promptness to all eligible individuals, and Grammer, which required nursing facilities to protect and promote the rights of each resident, including the right to choose a personal attending physician. See 367 F.3d at 189; 570 F.3d at 529.
However, when the statutory language speaks of a primary subject—the object of the regulation—and a secondary subject, who benefits from the regulation of the primary subject, no personal rights are created. See Newark Parents, 547 F.3d at 210. Such language does not speak of the rights or entitlements of the secondary subject, but only of the obligations of the primary subject. Because the focus of these statutes “is on the entity regulated and is at least one step removed from the interests of” the intended beneficiary, courts will not find personal rights in such cases. See id.
Given this framework, the Court determines that neither of the Housing Act provisions Section 1437f(o)(8) states “[F]or each dwelling unit for which a housing assistance payment contract is established under this subsection, the public housing agency shall inspect the unit before any assistance payment is made to determine whether the dwelling unit meets the housing quality standards under subparagraph (B).” 42 U.S.C. § 1437f(o)(8)(A). Section 1437d(f) states, in relevant part: “(1) Each contract for contributions for a public housing agency shall require that the agency maintain its public housing in a condition that complies with . . . the housing quality standards . . . . (2) The Secretary shall establish housing quality standards . . . that ensure that public housing dwelling units are safe and habitable. . . .” 42 U.S.C. § 1437d(f).
Plaintiffs point to in the present case create personal rights. The statutes Plaintiffs seek to enforce, 42 U.S.C. §§ 1437f(o)(8) and 1437d(f),3 do not even mention the intended beneficiary of the regulation. Since the statutory provisions under which Plaintiffs bring their claims against PHA are not privately enforceable, neither are the regulatory provisions they cite. See Sandoval, 532 U.S. at 291 (“[I]t is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized byCongress.”); Three Rivers, 382 F.3d at 424 (“[A] regulation cannot ‘create a right enforceable through section 1983 where the alleged right does not appear explicitly in the statute, but only appears in the regulation.’” (quoting S. Camden Citizens in Action v. N.J. Dep't of Envtl. Prot., 274 F.3d 771, 781 (3d Cir. 2001))). Therefore, the Court concludes that Plaintiffs do not have a private right of action to enforce 42 U.S.C. §§ 1437f(o)(8), 1437d(f), or their associated regulations under either 42 U.S.C. § 1983 or an implied right of action, because those provisions of law do not create personal rights.
Municipal liability - state-created danger
Defendant's motion for summary judgment rejected on this claim, because, inter alia, "[b]ut for PHA’s approval of the Scattergood property, Plaintiffs would not be living there and never would have been exposed to the alleged dangers therein. Without PHA’s payment of the rent for the Scattergood property, Plaintiffs would not be living in the home and exposed to its damp air. And but for the alleged appointment and notice requirement, Plaintiffs almost certainlywould have been out of the Scattergood property earlier and faced less exposure to the alleged dangers within the home. Thus, on their face, PHA’s acts were but-for causes of Plaintiffs’ harm.
The other requirements of DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189 (1989) were adequately pleaded, to avoid summary judgment. Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996). To establish a claim based on the state-created danger doctrine, a plaintiff must satisfy the following elements: (1) the harm causedwas foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) some relationship existed between the state and the plaintiff that renders plaintiff a foreseeable victim; and (4) “a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.” Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006).
Wednesday, April 21, 2010
custody - reliance on custom, practice, usage not permitted
B.C.S. v. J.A.S. - Superior Court - April 20, 2010
http://www.pacourts.us/OpPosting/Superior/out/A02043_10.pdf
We hold that a court may not rely on any custom, practice, or judicial norm advancing a presumption of primary physical custody of school-age children when evaluating a petition to modify custody.
Father challenges the court’s reliance on “York County Practice” in deciding against a shared custody arrangement. He refers to the court’s comment that courts “in York County have often provided that primary majority custody situations are best suited for children of school age. There are arrangements that can be made if parents reside in the same district and are able to cooperate.” Because the law unequivocally provides for a fact-specific, case-by-case analysis of all factors affecting the child’s best interest in custody proceedings, any presumption of primary physical custody for school-age children is completely unfounded. See A.D., 989 A.2d at 36. Unless the legislature determines otherwise, the law contains no presumption that primary physical custody situations are best suited for school-aged children. See id.
Indeed, this Court explicitly found the trial court abused its discretion when it awarded primary physical custody based on the “court’s personal view that shared custody is seldom (if ever) in the best interests of school-age child[ren].” See M.A.T. v. G.S.T., 989 A.2d 11, 20 (Pa. Super. 2010) (en banc). We thus re-emphasize the impropriety of any custom, practice, or judicial norm advancing a presumption of primary physical custody of school-age children. See id.; A.D., 989 A.2d at 36
Accordingly, we hold that the trial court’s reliance on “York County Practice” that “primary majority custody situations are best suited for children of school age” in denying Father’s petition to modify custody is contrary to well-established caselaw mandating a fact-specific analysis of the children’s best interest in resolving any petition to modify custody.
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We hold that a court may not rely on any custom, practice, or judicial norm advancing a presumption of primary physical custody of school-age children when evaluating a petition to modify custody.
Father challenges the court’s reliance on “York County Practice” in deciding against a shared custody arrangement. He refers to the court’s comment that courts “in York County have often provided that primary majority custody situations are best suited for children of school age. There are arrangements that can be made if parents reside in the same district and are able to cooperate.” Because the law unequivocally provides for a fact-specific, case-by-case analysis of all factors affecting the child’s best interest in custody proceedings, any presumption of primary physical custody for school-age children is completely unfounded. See A.D., 989 A.2d at 36. Unless the legislature determines otherwise, the law contains no presumption that primary physical custody situations are best suited for school-aged children. See id.
Indeed, this Court explicitly found the trial court abused its discretion when it awarded primary physical custody based on the “court’s personal view that shared custody is seldom (if ever) in the best interests of school-age child[ren].” See M.A.T. v. G.S.T., 989 A.2d 11, 20 (Pa. Super. 2010) (en banc). We thus re-emphasize the impropriety of any custom, practice, or judicial norm advancing a presumption of primary physical custody of school-age children. See id.; A.D., 989 A.2d at 36
Accordingly, we hold that the trial court’s reliance on “York County Practice” that “primary majority custody situations are best suited for children of school age” in denying Father’s petition to modify custody is contrary to well-established caselaw mandating a fact-specific analysis of the children’s best interest in resolving any petition to modify custody.
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attorney fees - civil rights - lodestar - enhancement
SUPREME COURT OF THE UNITED STATES
Syllabus
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 08–970. Argued October 14, 2009—Decided April 21, 2010
Title 42 U. S. C. §1988 authorizes courts to award a "reasonable" attorney’s fee for prevailing parties in civil rights actions. Half of respondents’ $14 million fee request was based on their calculation of the"lodestar,"
the number of hours the attorneys and their employees worked multiplied by the hourly rates prevailing in the community. The other half represented a fee enhancement for superior work and results, supported by affidavits claiming that the lodestar wouldbe insufficient to induce lawyers of comparable skill and experienceto litigate this case. Awarding fees of about $10.5 million, the District Court found that the proposed hourly rates were "fair and reasonable," but that some of the entries on counsel’s billing records were vague and that the hours claimed for many categories were excessive. The court therefore cut the lodestar to approximately $6 million, but enhanced that award by 75%, or an additional $4.5 million.The Eleventh Circuit affirmed in reliance on its precedent.
Held
:1. The calculation of an attorney’s fee based on the lodestar may be increased due to superior performance, but only in extraordinary circumstances. Pp. 5–12.
(a) The lodestar approach has "achieved dominance in the federal courts." Gisbrecht v. Barnhart, 535 U. S. 789, 801. Although imperfect, it has several important virtues: It produces an award that approximates the fee the prevailing attorney would have received for representing a paying client who was billed by the hour in a comparable case; and it is readily administrable, see, e.g., Burlington v. Dague, 505 U. S. 557, 566, and "objective," Hensley v. Eckerhart, 461 U. S. 424, 433, thereby cabining trial judges’ discretion, permitting meaningful judicial review, and producing reasonably predictable results. Pp. 5–7.
(b) This Court has established six important rules that lead totoday’s decision. First, a "reasonable" fee is one that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case, see Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U. S. 546, 565, but that does not provide "a form of economic relief to improve the financial lot of attorneys," ibid. Second, there is a "strong" presumption that the lodestar method yields a sufficient fee. See, e.g., id., at 564. Third, the Court has never sustained an enhancement of a lodestar amount for performance, but has repeatedly said that an enhancement maybe awarded in "rare" and "exceptional" circumstances. E.g., id., at 565. Fourth, "the lodestar includes most, if not all, of the relevant factors constituting a ‘reasonable’ attorney’s fee." Id., at 566. An enhancement may not be based on a factor that is subsumed in the lodestar calculation, such as the case’s novelty and complexity, see, e.g., Blum v. Stenson, 465 U. S. 886, 898, or the quality of an attorney’s performance, Delaware Valley, supra, at 566. Fifth, the burden of proving that an enhancement is necessary must be borne by the fee applicant. E.g., Blum, 465 U. S., at 901. Sixth, an applicant seekingan enhancement must produce "specific evidence" supporting the award, id., at 899, 901, to assure that the calculation is objective andcapable of being reviewed on appeal. Pp. 7–9.
(c) The Court rejects any contention that a fee determined by the lodestar method may not be enhanced in any situation. The "strong presumption" that the lodestar is reasonable may be overcome in those rare circumstances in which the lodestar does not adequatelyaccount for a factor that may properly be considered in determining a reasonable fee. P. 9.
(d) The Court treats the quality of an attorney’s performance andthe results obtained as one factor, since superior results are relevantonly to the extent it can be shown that they stem from superior attorney performance and not another factor, such as inferior performance by opposing counsel. The circumstances in which superior attorney performance is not adequately taken into account in the lodestar calculation are "rare" and "exceptional." Enhancements should not be awarded without specific evidence that the lodestar feewould not have been "adequate to attract competent counsel." Blum, supra, at 897. First, an enhancement may be appropriate where the method used to determine the hourly rate does not adequately measure the attorney’s true market value, as demonstrated in part during the litigation. This may occur if the hourly rate formula takes into account only a single factor (such as years since admission to the bar) or perhaps only a few similar factors. In such a case, the trial judge should adjust the hourly rate in accordance with specific proof linking the attorney’s ability to a prevailing market rate. Second, an enhancement may be appropriate if the attorney’s performance includesan extraordinary outlay of expenses and the litigation is exceptionally protracted. In such cases, the enhancement amount must be calculated using a method that is reasonable, objective, and capable ofbeing reviewed on appeal, such as by applying a standard interestrate to the qualifying expense outlays. Third, an enhancement may be appropriate where an attorney’s performance involves exceptional delay in the payment of fees. In such a case, the enhancement should be calculated by a method similar to that used for an exceptional delay in expense reimbursement. Enhancements are not appropriate on the ground that departures from hourly billing are becoming more common. Nor can they be based on a flawed analogy to the increasingly popular practice of paying attorneys a reduced hourly rate witha bonus for obtaining specified results. Pp. 9–12.
2. The District Court did not provide proper justification for the 75% fee enhancement it awarded in this case.
It commented that the enhancement was necessary to compensate counsel at the appropriate hourly rate, but the effect was to raise the top rate from $495 tomore than $866 per hour, while nothing in the record shows that this is an appropriate figure for the relevant market. The court also emphasized that counsel had to make extraordinary outlays for expenses and wait for reimbursement, but did not calculate the amountof the enhancement attributable to this factor. Similarly, the court noted that counsel did not receive fees on an ongoing basis during the case, but did not sufficiently link this to proof that the delay was outside the normal range expected by attorneys who rely on §1988 forfees. Nor did the court calculate the cost to counsel of any extraordinary and unwarranted delay. And its reliance on the contingency of the outcome contravenes Dague, supra, at 565. Finally, insofar as the court relied on a comparison of counsel’s performance in this case with that of counsel in unnamed prior cases, it did not employ a methodology that permitted meaningful appellate review. While determining a "reasonable attorney’s fee" is within the trial judge’s sound discretion under §1988, that discretion is not unlimited. The judge must provide a reasonably specific explanation for all aspects of a fee determination, including any enhancement. Pp. 12–15.
532 F. 3d 1209, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., and THO-MAS, J., filed concurring opinions. BREYER, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, GINSBURG, and SOTOMAYOR, JJ., joined.
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