debt collection - notice of validation rights - FDCPA

Harlan v.  TransWorld Systems, dba North Shore Agency – ED Pa.  – April 8, 2014

http://www.paed.uscourts.gov/documents/opinions/14D0296P.pdf

Following Caprio v. Healthcare Revenue Recovery Group, 709 F.3d 142 (3d Cir. 2013) Debt collector failed to give a proper notice of validation rights and violated sec. 1692g, where the notice appeared buried in a lot of other notices on the reverse side of a letter, and where a conflicting notice of "STATEMENT OF INTENTIONS" appeared on the front. 

 

 

UC - willful misconduct - absenteeism - final absence - good cause

Howard Hanna Holdings, Inc. v. UCBR – Cmwlth. Court – April 3, 2014 – unreported memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/1430CD13_4-3-14.pdf?cb=1

An employer has the right to expect that its employees will attend work when they are scheduled, that they will be on time, and that they will not leave work early without permission. Fritz v. Unemployment Compensation Board of Review, 446 A.2d 330, 333 (Pa. Cmwlth. 1980). As a result, excessive absenteeism and tardiness may constitute willful misconduct as a disregard of the standards that an employer has a right to expect of its employees. Id.; American Process Lettering, Inc. v. Unemployment Compensation Board of Review, 412 A.2d 1123, 1125 (Pa. Cmwlth. 1980); Crilly v. Unemployment Compensation Board of Review, 397 A.2d 40, 41 (Pa. Cmwlth. 1979).

Although an advance warning is not a precondition or prerequisite to support a discharge for willful misconduct, a prior warning is relevant in that it reflects the employee’s attitude toward his employment and adds to the willfulness of the misconduct. American Process Lettering, Inc., 412 A.2d at 1125-26.

However, even where a history of absenteeism is present, a claimant is entitled to receive compensation benefits where the final absence which precipitated his or her discharge was based on good cause. See Tritex Sportswear, Inc. v. Unemployment Compensation Board of Review, 315 A.2d 322, 324 (Pa. Cmwlth. 1980). But cf. Grand Sport Auto Body, 55 A.3d at 192-94 (holding that a claimant’s extensive absenteeism and history of tardiness constituted willful misconduct even if the claimant’s final absence before discharge was justified).

In this case, the court found that all of claimant's absences, including the last one, were for good cause.

_________________________________________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

 

federal courts - abstention - Younger abstention

Acra Turf Club v. Zanzuccki -  3d Cir. – March 341, 2014

http://www2.ca3.uscourts.gov/opinarch/133064p.pdf

ACRA Turf Club, LLC filed this suit pursuant to 42 U.S.C. §§ 1983 and 1988, against Francesco Zanzuccki , Executive Director of the New Jersey Racing Commission, asserting that certain amendments to New Jersey’s Off-Track and Account Wagering Act violate their rights under the United States Constitution.

The District Court dismissed the case on Younger abstention grounds, and Plaintiffs appealed. During the pendency of this appeal, the Supreme Court issued its decision in Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013), which clarifies and reminds courts of the boundaries of the Younger abstention doctrine. Because this action does not fit within the framework for abstention outlined in Sprint, we will reverse.

UC - willful misconduct - excessive v. limited absenteeism/tardiness

Morgan v. UCBR – Cmwlth. Court – March 26, 2014 – unreported memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/1842CD13_3-26-14.pdf?cb=1

Claimant failed to report for work on March 6, 2013 and did not notify Employer that she would be absent. On March 7, 2013, she received and signed a written warning for that absence and failure to notify. Although it advised that further attendance policy violations could result in termination of employment, this warning was marked as a “First Warning” and did not refer to any tardiness or absences other than the March 6, 2013 incident. On March 13, 2013, Claimant was absent from work, but notified Employer of her absence. On March 14, 2013, the following day, Claimant arrived at work five minutes late and was discharged by Employer for tardiness and absenteeism.

It is well established that excessive absenteeism or tardiness can constitute willful misconduct. Ellis v. Unemployment Compensation Board of Review, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013); Grand Sport Auto Body, 55 A.3d at 190; Fritz v. Unemployment Compensation Board of Review, 446 A.2d 330, 333 (Pa. Cmwlth. 1982). “Employers have ‘the right to expect that ... employees will attend work when they are scheduled, that they will be on time, and that they will not leave work early without permission.’” Grand Sport Auto Body, 55 A.3d at 190 (quoting Fritz). Thus, we have held that willful misconduct was shown where the claimant had a pattern of repeated tardiness or absences without good cause and the claimant had received warnings concerning his or her tardiness or absences. See Ellis, 59 A.3d at 1161, 1163-64 (claimant was late six times in a two and one-half week period, five of which were latenesses of 30 minutes, before she was discharged for arriving at work 45 minutes late); Grand Sport Auto Body, 55 A.3d at 190-92 (claimant was late 16 times in six months and was absent three days without excuse in the final month that he worked); Fritz, 446 A.2d at 331, 333 (in approximately two-month period, claimant was late six times, five times by 45 minutes or more, was absent once and left work early once).

The Board did not find any pattern of habitual or chronic tardiness or absences. Rather, the Board found only that Claimant had two absences and a single incident of being five minutes late for work.  This does not rise to the level of excessive absences and tardiness that constitutes willful misconduct. Nor can the conduct for which Claimant was discharged be properly characterized as willful misconduct on the ground that she violated Employer’s rules requiring notification of absences and lateness. While Claimant did not comply with Employer’s requirement that she call in the case of the first absence, she received a warning and was not discharged for that conduct. Claimant complied with Employer’s attendance policy with respect to the second absence. In the final incident, Claimant did not call Employer to notify that she would be five minutes late for work. .) The mere failure to notify of such a brief lateness on a single occasion does not by itself show the deliberate or intentional violation of Employer’s rules or disregard of standards of conduct that is required to support a finding of willful misconduct. See Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968-69 (Pa. Cmwlth. 2010) (violation of employer rule that was not shown to be intentional or deliberate does not constitute willful misconduct and does not shift burden to claimant to show good cause for rule violation).

We recognize that Employer contended that Claimant had a history of other absences and incidents of tardiness, in addition to the two absences and one five-minute lateness that preceded her discharge.  Employer’s witnesses, however, had no knowledge of those alleged absences and latenesses, and Employer’s documentation consisted solely of a list for the unemployment compensation proceedings with no evidence as to how it was prepared or on what it was based, not time or attendance records kept in the ordinary course of business.

Hearsay evidence, even if admitted without objection, cannot support a finding of fact unless it is corroborated by other competent evidence in the record. There was no evidence that corroborated Employer’s list of prior absences and tardiness; Claimant disputed Employer’s contentions that she had a history of unexcused absences and lateness, and the written warning that Claimant received and signed did not indicate that Claimant had any history of tardiness or any unexcused absences other than the March 6, 2013 incident. 

 

Accordingly, the Board did not find that Claimant had any history of absences or lateness before the three incidents of March 6, 2013, March 13, 2013, and March 14, 2013.

Because the two absences and single incident of tardiness found by the Board are insufficient to constitute willful misconduct, we reverse the order of the Board.

 ______________________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

False Claims Act - pleading requirements - ED Pa. case - excerpts

US ex rel. Knisely v. Cintas Corporation – ED Pa. – March 14, 2014

http://www.paed.uscourts.gov/documents/opinions/14D0172P.pdf

It is well-established that claims under the False Claims Act must be pled with particularity under the special pleading standard of Fed. R. Civ. P. 9(b), which states in relevant part that “[i]n alleging fraud. . ., a party must state with particularity the circumstances constituting fraud[.]” See United States ex rel. Schmidt v. Zimmer, Inc., 386 F.3d 235, 242 n.9 (3d Cir. 2004); see also United States ex rel. LaCorte v. SmithKline Beecham Clinical Labs., Inc., 149 F.3d 227, 234 (3d Cir. 1998); accord Gold v. Morrison-Knudsen Co., 68 F.3d 1475, 1477 (2d Cir. 1995) (citing cases).

This heightened pleading standard serves a dual purpose. Requiring plaintiffs to plead with particularity “place[s] the defendants on notice of the precise misconduct with which they are charged” and also “safeguard[s] [them] against spurious charges of immoral and fraudulent behavior.” Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984). In Judge Easterbrook’s oft-cited phrasing, plaintiffs must support their fraud allegations under Rule 9(b) with all the essential detailed factual circumstances that constitute “the first paragraph of any newspaper story” that is, “who, what, when, where and how.” DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990) (cited in In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 217 (3d Cir. 2002). Our Court of Appeals has adopted a “flexible” alternative when plaintiffs cannot plead particularized evidence of a false claim, holding the plaintiff need not allege “date, place or time” if he can “inject[]precision and some measure of substantiation” by some other means into his allegations of fraud. Seville, 742 F.2d at 791.

As Wright and Miller teach, the degree of pleading particularity required under Rule 9(b) rests on the nature of the underlying fraud claim. 5A Charles Alan Wright and Arthur R. Miller, Federal Practice & Procedure, § 1298. While a simple allegation of fraud may suffice under the Bankruptcy Code, “considerable pleading particularity may be necessary to satisfy Rule 9(b) and to state a claim under the federal civil false claim statutes.” LaCorte, 149 F.3d at 234.

Our Court of Appeals has not specifically addressed how the Rule 9(b) pleading requirements deal with the false-claim elements. Knisely cites cases from our district court colleagues to urge that we apply a “generous” standard for Rule 9(b) under which he need not identify specific claims for payment. Mem. in Opp. at 12. But Knisely misconstrues the Rule's requirements as it pertains to his claim. He relies on United States ex rel. Wilkins v. United Health Group, Inc., 659 F.3d 295 (3d Cir. 2011), in which our Court of Appeals noted that “to our knowledge we have never held that a plaintiff must identify a specific claim for payment at the pleading stage of the case to state a claim for relief.” Id. at 308 (emphasis in original). But that passage referred specifically to the district court’s erroneous dismissal of a False Claims act case for a failure to plead under the Rule 12(b)(6) standard for a motion to dismiss, where the district court explicitly declined to apply the Rule 9(b) pleading requirements. Tellingly, our Court of Appeals then continued in Wilkins, “In any event. . . the question of whether a plaintiff, at the pleading stage, must identify representative examples of specific false claims that a defendant made to the Government in order to plead an FCA claim properly is a requirement under the more particular pleading standards of Rule 9(b).” Id. The Court thereafter cited with approval Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993 (9th Cir. 2010), where that Circuit held:  We do not embrace the . . . categorical approach that would, as a matter of course, require a relator to identify representative examples of false claims to support every allegation[.] . . . We … conclud[e], in accord with general pleading requirements under Rule 9(b), that it is sufficient to allege “particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.”  Id. at 998-99 (quoting United States ex rel. Grubbs v. Ravikumar Kanneganti, 565 F. 3d 180, 190 (5th Cir. 2009)).

Our colleagues have adopted that seemingly “flexible” standard for particularity where the specific details of claims have been elusive. See, e.g., United States ex rel. Schumann v. AstraZeneca PLC, 2010 WL 4025904 at *10 (E.D.Pa. Oct. 13, 2010) (Ditter, J.); see also United States ex rel. Budike v. PECO Energy, 897 F.Supp.2d 300 (E.D.Pa. 2012) (Surrick, J.). In short, even under our Court of Appeals’s so-called flexible approach to Rule 9(b), a relator must offer particulars to satisfy both the elements of an FCA claim and the Rule 9(b) pleading standards.

One who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval,” or “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim” faces liability under Section 3729(a)(1)(A) and (B). To establish a prima facie False Claims Act violation, a plaintiff must prove that “(1) the defendant presented or caused to be presented to an agent of the United States a claim for payment; (2) the claim was false or fraudulent; and (3) the defendant knew the claim was false or fraudulent.” Wilkins, 659 F.3d at 305 (citing Schmidt, 386 F.3d at 242). There are two categories of false claims under the FCA, a factually false claim where the claimant misrepresents the goods or services it provided to the Government and a legally false claim where the claimant knowingly falsely certifies compliance with a statute or regulation that is a condition for Government payment. Id. ….

Rule 9(b) permits pleading “based upon information and belief”, particularly where key factual information remains within the defendant’s control. In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1418 (3d Cir. 1997). But such allegations are permissible “only if the pleading sets forth specific facts upon which the belief is reasonably based.” State Farm Mut. Auto. Ins. Co. v. Ficchi, 2012 WL 1578247 at *5 (E.D. Pa. May 4, 2012) (Pratter, J.). District courts in this Circuit have sometimes obliged plaintiffs even in the pleading stage of FCA actions to provide a statement of efforts undertaken to obtain information from the opposing party. See United States ex rel. Bartlett v. Tyrone Hospital, Inc., 234 F.R.D. 113, 122 (W.D.Pa. 2006) (granting defendants’ motion to dismiss). As Judge Buckwalter held in another FCA case, “cursory allegations, made on information and belief alone, are unquestionably insufficient to open the door to broad and burdensome discovery.” 

sheriff's sales - amendments to rules

order http://www.pacourts.us/assets/opinions/Supreme/out/593civ.pdf?cb=1

Rules  http://www.pacourts.us/assets/opinions/Supreme/out/593civ-attach.pdf?cb=1

Explanatory comment http://www.pacourts.us/assets/opinions/Supreme/out/593civ-rpt.pdf?cb=1

                                       **********************************************

The Rules of Civil Procedure governing sheriff’s sales have been amended in three respects:

Writ of garnishment - inactivity 

Current Rule 3111 governing the service of the writ on the garnishee provides for a continuing garnishment of defendant’s property until the underlying judgment is satisfied. Because garnishments can languish indefinitely without any action taken on them, the amendment introduces a procedure that would allow a defendant or a thirdparty garnishee to petition the court for termination of the garnishment provided that there has been no activity on the garnishment for at least one year. The plaintiff has the opportunity to respond to the petition and set forth the reasons the garnishment should not be terminated.

Sheriff's sale – postponement/continuance – noitice of new sale date

Current Rule 3129.3 governs the procedures for postponing or continuing a sheriff’s sale. The rule, however, is silent as to providing notice of the date to which a sheriff’s sale has been postponed. As a remedy, the amendment to Rule 3129.3 requires the plaintiff to file a notice of the date of continued sheriff’s sale with the prothonotary at least 15 days before the continued sale date. The plaintiff must also file a certificate of filing with the sheriff’s office confirming the filing of the notice with the prothonotary.

The failure to timely file the notice results in the sheriff continuing the sale until the next available sale date. However, noncompliance is not a basis for setting aside the sale unless it is raised prior to the delivery of the sheriff’s deed. A sale will only be set aside upon a showing of prejudice.

Correction of sheriff's deed – notice to junior lienholder

The amendment to Rule 3135, which governs the correction of the sheriff’s deed to real property, addresses the situation when a junior lienholder has failed to receive notice of mortgage foreclosure and has not been divested of its interest. Currently, the plaintiff is required to hold the sheriff’s sale again even though the junior lienholder typically has no interest in purchasing the mortgage. To remedy this duplication of effort and resources, the amendment allows for a plaintiff, its assigns, or the purchaser at the previously held sheriff’s sale to file a petition with a rule to show cause requesting that (1) the lien held by the junior lienholder be divested, (2) another sheriff’s sale be held in which only the junior lienholder specified in the petition may be the only other bidder

allowed other than the senior lienholder who acquired the property at the previously held sheriff’s sale, or (3) other relief approved by the court.

 

 

SSD - age categories - no mechanical application

Rodriguez v. Astrue – ED Pa. – January 27, 2014

http://www.paed.uscourts.gov/documents/opinions/14D0060P.pdf

Held:  A plaintiff who is six months and one day from an older age category presents a borderline age situation that requires remand for consideration by the magistrate judge.  The ALJ must make an individualized determination as to whether plaintiff is more appropriately a “younger person” or a “person closely approaching advanced age.”

When describing how the age ranges will be applied, the regulations state:

We will not apply the age categories mechanically in a borderline situation. If you are within a few days to a few months of reaching an older age category, and using the older age category would result in a determination or decision that you are disabled, we will consider whether to use the older age category after evaluating the overall factors of your case.  20 C.F.R. §§ 404.1563(b), 416.963(b) (emphasis added).

The United States Court of Appeals for the Third Circuit has held that the district court should remand if (1) the ALJ mechanically applied an age category in a borderline case and (2) the borderline age analysis could change the ALJ’s determination of disability. Kane v. Heckler, 776 F.2d 1130, 1133–34 (3d Cir. 1985). An ALJ must make an individualized determination in a “borderline situation” because the “assumption [that individuals in certain age ranges have certain capabilities] becomes unreliable and a more individualized determination is necessary.” Id. at 1133.

At the time of the ALJ’s decision, plaintiff was sixth months and one day from her fiftieth birthday. Had the ALJ considered plaintiff to be “closely approaching advanced age” instead of a “younger person,” plaintiff would have been found disabled. R&R at 7–8. Thus, the question is whether six months and one day presents a borderline age case. If so, the case must be remanded to the ALJ for an individualized determination about what age range applies to plaintiff upon consideration of the overall factors in her case.

There is no test to determine when an applicant is “a few days or a few months” from an older age category. The Third Circuit held that a claimant who was fifty-four days from his fiftieth birthday presented a borderline age case. Kane, 776 F.2d at 1133. “Nine months appears to represent the outer perimeter of what constitutes a borderline case in the District Courts of the Third Circuit.” Ludvico v. Astrue, No. 08-322, 2008 WL 5134938, at *11 (W.D. Pa. Dec. 5, 2008). District courts in the Eastern District of Pennsylvania have found that claimants who are six months and three days from a higher age range present a borderline age case. Anderson v. Astrue, No. 12-4114 (E.D. Pa. Apr. 3, 2013) (order approving and adopting the report and recommendation of Magistrate Judge Timothy R. Rice) (finding a borderline age case when claimant was six months and three days from turning fifty); Copeland v. Astrue, No. 10-1482 (E.D. Pa. Nov. 22, 2010) (order approving and adopting the report and recommendation of Magistrate Judge Linda K. Caracappa) (finding a borderline age case when claimant was six months and three days from turning fifty-five); see also Williams v. Bowen, No. 86-3763, 1987 WL 9148, at *2 (E.D. Pa. Apr. 6, 1987) (finding that seven months was borderline).

This Court concludes that a plaintiff who is six months and one day from an older age category presents a borderline age situation that requires remand for consideration by the magistrate judge. On remand, the ALJ must make an individualized determination as to whether plaintiff is more appropriately a “younger person” or a “person closely approaching advanced age.”

admin. appeals - multiple cases - single, consolidated appeal v. individual appeals - nunc pro tunc appeal - procedural defect not jurisdictional

Alma v. Board of Assessment Appeals – Cmwlth Court – January 8, 2014

http://www.pacourts.us/assets/opinions/Commonwealth/out/1132CD13_1-8-14.pdf?cb=1

Appellants from 157+ assessment appeal cases were allowed to appeal nunc pro tunc where they improperly had filed a single consolidated appeal. 

Property owners were permitted to file amended appeals beyond the statutory appeal period where they had jointly filed a single Notice of Appeal from the Board’s 157 separate decisions.  They were allowed to file individual amended appeals beyond the mandated statutory period for  filing such appeals.  The issues raised and the facts involved in the 158 appeals were alleged to be similar, and the Board allowed the appeals to be consolidated for hearing purposes only. The Board ultimately denied the assessment appeals, and sent individual notices of denial, along with individual notices of the right to appeal to each of the Property Owners.

The defect in this case is procedural, and therefore curable, not jurisdictional.  As a general rule, ‘[t]aking one appeal from separate judgments is not acceptable practice and is discouraged.’ In TCPF, L.P. v. Skatell, 976 A.2d 571 (Pa. Super. 2009), [our Superior] Court was presented with the same procedural defect involved in the instant appeal, i.e., the appellant’s filing of a single notice of appeal from two separate trial court orders and the subsequent filing of an untimely amended notice of appeal. The Skatell Court denied the appellee’s motion to quash the appeal, holding that ‘where . . . Appellant filed a timely, albeit discouraged, appeal of multiple orders and filed a subsequent amended appeal, no fatal defect exists and the mandates of judicial economy require that the appeal be heard.’ Sulkava v. Glaston Finland Oy, 54 A.3d 884, 888 (Pa. Super. 2012) (citations omitted and emphasis added).

PFA - non-consensual sex

Boykai v. Young – Superior Court – January 7, 2014

http://www.pacourts.us/assets/opinions/Superior/out/J-S68013-13o%20-%201016704021871106.pdf?cb=1

The relevant question is whether the alleged victim consented to sexual intercourse. To that end, the PFA Act supports a finding of abuse regardless of whether the sexual intercourse at issue is the result of forcible compulsion, or is simply non-consensual. See 23 Pa.C.S. § 6102.

car repo - improper notice - UCC consumer remedies - statute of limitations

Cubler et al. v. Trumark Financial Credit Union - Dec. 20, 2013 - Superior Court

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A23032-13o%20-%201016568821847567.pdf?cb=1

Consumer remedies under UCC, 13 Pa. C.S. 9625, are subject to the general 6-year statute of limitations under 42 Pa. C.S. 5527(b) and not the 2-year SOL under 42 Pa. C.S. 5524)5), which governs "actions upon a statute for a civil penalty or forfeiture."  The remedies under sec. 9625 are compensatory and not penal.

The court held that the reasoning of the Pennsylvania Supreme Court in the analogous case of Pantuso Motors, Inc. v. Corestates Bank, N.A., 798 A.2d 1277, 1281 (Pa. 2002);  should guide its analysis, and lead to a determination that a plain reading of the unambiguous language of section 9625 reveals that it is a remedial statute intended to compensate aggrieved debtors/obligors for their losses.

The court held that it  must provide “substantial weight” to the fact that, in drafting section 9625, the General Assembly specifically chose to use the word “[r]emedies” in the heading of the statute. See Pantuso Motors, 798 A.2d at 1282; see also 1 Pa.C.S.A. § 1924. Furthermore, the relevant provisions involved in this case, 13 Pa.C.S.A. § 9625(c)(2) and (e)(5), both specifically provide for “recover[y]” of “statutory damages.” Id. Importantly, the language of section 9625 does not contain any reference to penalties of any sort. Accordingly, it would be anomalous for this Court to declare that a statute that the General Assembly has specifically designated as being remedial, and which expressly provides for recovery of statutory damages, is, in fact, a civil penalty or forfeiture. See Pantuso Motors, 798 A.2d at 1283.

See also 1 Pa.C.S.A. § 1921(b) (rule of statutory construction providing that where, as here, “the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”). Moreover, a determination that the statutory damages provided for in section 9625 are intended to be compensatory and not penal in nature is supported by section 1305 of the UCC. Section 1305 provides that “neither consequential or special damages nor penal damages may be had except as specifically provided in this title or by other rule of law.” 13 Pa.C.S.A. § 1305(a) (emphasis added). Furthermore, section 9625 provides a damages formula that is expressly linked to the aggrieved party’s injury, not to the degree of the offending party’s culpability, which is a feature inherent in penalties. See, e.g., 13 Pa.C.S.A. § 9625(b) (providing that “a person is liable for damages in the amount of any loss caused by a failure to comply with this division”); id. § 9625(c)(2) (providing that an aggrieved debtor/obligor is entitled to an award “not less than the credit service charge plus 10% of the principal amount of the obligation or the time price differential plus 10% of the cash price.”). Finally, like   the circumstances presented in Pantuso Motors, even if the imposition of statutory damages.  Finally, like the circumstances presented in Pantuso Motors, even if the imposition of statutory damages under section 9625 may have the effect of encouraging compliance with the provisions of Article 9, the General Assembly intended such damages to serve primarily to compensate aggrieved claimants, not as a penalty against  offending parties. See Pantuso Motors, 798 A.2d at 1283-84.

federal courts - abstention

http://www.supremecourt.gov/opinions/13pdf/12-815_qol1.pdf

Syllabus

SPRINT COMMUNICATIONS, INC. v. JACOBS ET AL.
CERTIORARI TO THE U.S. COURT OF APPEALS FOR THE 8th CIRCUIT
      No. 12–815. Argued November 5, 2013—Decided December 10, 2013

Sprint Communications, Inc. (Sprint), a national telecommunicationsservice provider, withheld payment of intercarrier access fees im­posed by Windstream Iowa Communications, Inc. (Windstream), a lo­cal telecommunications carrier, for long distance Voice over InternetProtocol (VoIP) calls, after concluding that the TelecommunicationsAct of 1996 preempted intrastate regulation of VoIP traffic. Wind­stream responded by threatening to block all Sprint customer calls,which led Sprint to ask the Iowa Utilities Board (IUB) to enjoin Windstream from discontinuing service to Sprint. Windstream re­tracted its threat, and Sprint moved to withdraw its complaint. Con­cerned that the dispute would recur, the IUB continued the proceed­ings in order to resolve the question whether VoIP calls are subject to intrastate regulation. Rejecting Sprint’s argument that this questionwas governed by federal law, the IUB ruled that intrastate fees ap­plied to VoIP calls.Sprint sued respondents, IUB members (collectively IUB), in Fed­eral District Court, seeking a declaration that the Telecommunica­tions Act of 1996 preempted the IUB’s decision. As relief, Sprintsought an injunction against enforcement of the IUB’s order. Sprintalso sought review of the IUB’s order in Iowa state court, reiterating the preemption argument made in Sprint’s federal-court complaintand asserting several other claims. Invoking Younger v. Harris, 401 U. S. 37, the Federal District Court abstained from adjudicatingSprint’s complaint in deference to the parallel state-court proceeding. The Eighth Circuit affirmed the District Court’s abstention decision, concluding that Younger abstention was required because the ongo­ing state-court review concerned Iowa’s important interest in regulat­ing and enforcing state utility rates.

 

Held: This case does not fall within any of the three classes of excep­tional cases for which Younger abstention is appropriate. Pp. 6–12.

 

(a) The District Court had jurisdiction to decide whether federal law preempted the IUB’s decision, see Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635, 642, and thus had a “virtually unflagging obligation” to hear and decide the case, Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817. In Younger, this Court recognized an exception to that obligation for cases in which there is a parallel, pending state criminal proceeding. This Court has extended Younger abstention to particular state civil proceedings that are akin to criminal prosecutions, see Huffman v. Pursue, Ltd., 420 U. S. 592, or that implicate a State’s interest in en­forcing the orders and judgments of its courts, see Pennzoil Co. v. Texaco Inc., 481 U. S. 1, but has reaffirmed that “only exceptional cir­cumstances justify a federal court’s refusal to decide a case in defer­ence to the States,” New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 368 (NOPSI). NOPSI identified three such “exceptional circumstances.” First, Younger precludes federal intrusion into ongoing state criminal prosecutions. See 491 U. S., at 368. Second, certain “civil enforcement proceedings” war­rant Younger abstention. Ibid. Finally, federal courts should refrain from interfering with pending “civil proceedings involving certain or­ders . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Ibid. This Court has not applied Younger outside these three “exceptional” categories, and rules, in accord with NOPSI, that they define Younger’s scope. Pp. 6–8.

 

(b) The initial IUB proceeding does not fall within any of NOPSI’s three exceptional categories and therefore does not trigger Younger abstention. The first and third categories plainly do not accommo­date the IUB’s proceeding, which was civil, not criminal in character, and which did not touch on a state court’s ability to perform its judi­cial function. Nor is the IUB’s order an act of civil enforcement of the kind to which Younger has been extended. The IUB proceeding is not “akin to a criminal prosecution.” Huffman, 420 U. S., at 604. Nor was it initiated by “the State in its sovereign capacity,” Trainor v. Hernandez, 431 U. S. 434, 444, to sanction Sprint for some wrongful act, see, e.g., Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U. S. 423, 433–434. Rather, the action was initiated by Sprint, a private corporation. No state authority conducted an inves­tigation into Sprint’s activities or lodged a formal complaint against Sprint. Once Sprint withdrew the complaint that commenced administra­tive proceedings, the IUB argues, those proceedings became, essen­tially, a civil enforcement action. However, the IUB’s adjudicative , authority was invoked to settle a civil dispute between two privateparties, not to sanction Sprint for a wrongful act.

 

In holding that abstention was the proper course, the Eighth Cir­cuit misinterpreted this Court’s decision in Middlesex to mean that Younger abstention is warranted whenever there is (1) “an ongoing state judicial proceeding, which (2) implicates important state inter­ests, and (3) . . . provide[s] an adequate opportunity to raise [federal]challenges.” In Middlesex, the Court invoked Younger to bar a feder­al court from entertaining a lawyer’s challenge to a state ethics com­mittee’s pending investigation of the lawyer. Unlike the IUB’s pro­ceeding, however, the state ethics committee’s hearing in Middlesex was plainly “akin to a criminal proceeding”: An investigation andformal complaint preceded the hearing, an agency of the State’s Su­preme Court initiated the hearing, and the hearing’s purpose was todetermine whether the lawyer should be disciplined for failing tomeet the State’s professional conduct standards. 457 U. S., at 433– 435. The three Middlesex conditions invoked by the Court of Appealswere therefore not dispositive; they were, instead, additional factors appropriately considered by the federal court before invoking Young­er. Younger extends to the three “exceptional circumstances” identi­fied in NOPSI, but no further. Pp. 8–11.

 

690 F. 3d 864, reversed.

GINSBURG, J., delivered the opinion for a unanimous Court

fraud - silence, active concealment

Gnagy Gas and Oil v. Pa. Underground Storage Tank Indemnification Fund – Cmwlth. Court – December 6, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/1371CD12_12-6-13.pdf?cb=1

Generally, as a matter of common law, the elements to prove a claim for fraud or deceit are a misrepresentation, a fraudulent utterance thereof, an intention to induce action thereby, justifiable reliance thereon, and damage as a proximate result. Wilson v. Donegal Mutual Insurance Co., 598 A.2d 1310, 1315 (Pa. Super. 1991).4 To be actionable, a misrepresentation need not be in the form of a positive assertion but may be by concealment of that which should have been disclosed. Id. at 1315-16. See Moser v. DeSetta, 527 Pa. 157, 165, 589 A.2d 679, 682 (1991) (concluding that “the concealment of a material fact can amount to a culpable misrepresentation no less than does an intentional false statement.”). However, while active concealment may constitute fraud, mere silence is not sufficient in the absence of a legal duty to disclose information. Wilson, 598 A.2d at 1315-16; Smith v. Renaut, 564 A.2d 188, 192 (Pa. Super. 1989). Otherwise, fraud by omission is actionable “only where there is an independent duty to disclose the omitted information.” Estate of Evasew, 526 Pa. 98, 105, 584 A.2d 910, 913 (1990).

Pennsylvania law recognizes a difference between active concealment and mere silence in the context of common law fraud. Wilson, 598 A.2d at 1315-16; Smith, 564 A.2d at 192; see American Plan Communities, Inc. v. State Farm Insurance Co., 28 F. Supp. 2d 964, 968 (E.D. Pa. 1998) (citing Wilson) (acknowledging that “[c]oncealment alone may create a sufficient basis for finding that a party engaged in fraud so long as the other elements of fraud are present.”); American Plan Communities, Inc., 28 F. Supp. 2d. at 968 (citing Roberts v. Estate of Barbagallo, 531 A.2d 1125 (Pa. Super. 1987) (noting that Pennsylvania common law subsumes and recognizes the tort of fraudulent concealment as stated in the Restatement (Second) of Torts §550, which imposes liability for intentional concealment of material information regardless of any duty to disclose)), and compare with Duquesne Light Company v. Westinghouse Electric Corporation, 66 F.3d 604, 611 (3d. Cir. 1995) (applying Pennsylvania law) (reiterating that Pennsylvania has adopted the Restatement (Second) of Torts §551, which imposes liability for fraudulent nondisclosure in those situations where there is an affirmative duty to speak/disclose, yet noting that Pennsylvania law is unclear as to when such a duty arises). While this Court is unable to locate any authority within our Commonwealth that expounds meaningfully upon the distinction between “active concealment” and “mere silence,” and given the dichotomy evidenced by the above authorities, perhaps the best way to illustrate, on a surface level, the distinction is by comparing §550 and §551 of the Restatement (Second) of Torts. Section 550 states that liability occurs when “[o]ne party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information.”

 On the other hand, section 551 imposes liability for nondisclosure of information when the defendant has a specific duty to disclose, which arises only in certain, enumerated circumstances.  In United States v. Colton, 231 F.3d 890 (4th Cir. 2000), the United States Court of Appeals for the Fourth Circuit addressed the two legal concepts in a very detailed and scholarly manner. In so doing, the Colton court explained how and why the doctrine of “active concealment” constitutes fraud even if there is no independent legal duty to disclose the information, while the concept of “mere silence” requires the disclosure of information only if there is a positive statutory, regulatory, or legal duty mandating disclosure.

 

As the Colton court elucidated:

At common law, fraud has not been limited to those situations “where there is an affirmative misrepresentation or the violation of some independently-prescribed legal duty”…. Rather, even in the absence of a fiduciary, statutory, or other independent legal duty to disclose material information, common-law fraud includes acts taken to conceal, create a false impression, mislead, or otherwise deceive in order to “prevent[] the other [party] from acquiring material information.” Restatement (Second) of Torts § 550 (1977); see also W. Page Keeton et al., Prosser and Keeton on Torts §106 (5th ed. 1984) (“Any words or acts which create a false impression covering up the truth, or which remove an opportunity that might otherwise have led to the discovery of a material fact ... are classed as misrepresentation, no less than a verbal assurance that the fact is not true.”).

Thus, fraudulent concealment, without any misrepresentation or duty to disclose can constitute common-law fraud. This does not mean, however, that simple nondisclosure similarly constitutes a basis for fraud. Rather, the common law clearly distinguishes between concealment and nondisclosure. The former is characterized by deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or prevent further inquiry into a material matter. The latter is characterized by mere silence. Although silence as to a material fact (nondisclosure), without an independent disclosure duty, usually does not give rise to an action for fraud, suppression of the truth with the intent to deceive (concealment) does. See, e.g., Stewart v. Wyoming Cattle Ranche Co., 128 U.S. 383, 388, 9 S.Ct. 101, 32 L.Ed. 439 (1888).

The Supreme Court in Stewart carefully explained why concealment is “equivalent to a false representation” and so appropriately forms the basis for a common law fraud action: “the concealment or suppression is in effect a representation that what is disclosed is the whole truth. The gist of the action is fraudulently producing a false impression upon the mind of the other party; and if this result is accomplished, it is unimportant whether the means of accomplishing it are words or acts of the defendant, or his concealment or suppression of material facts not equally within the knowledge or reach of the plaintiff.” 128 U.S. at 388, 9 S.Ct. 101; see also … 37 C.J.S. Fraud § 18 (1997) (distinguishing between silence and concealment); 37 Am.Jur.2d Fraud and Deceit §145 (1968) (same). Thus, the common-law principle that, in the absence of an independent disclosure duty, “nondisclosure is not fraudulent, presupposes mere silence, and is not applicable where, by words or conduct, a false representation is intimated or any deceit practiced.” Id. at §174 (and the many cases cited therein); see also Stuart M. Speiser et al.,  The American Law of Torts §32:73 (1992).

Indeed, we have expressly held that the distinction between simple nondisclosure and concealment “is in accord with traditional principles of common law fraud.” Fox v. Kane-Miller Corp., 542 F.2d 915, 919 (4th Cir. 1976). In Fox, we upheld the district court’s reliance on the following explanation of this principle by Maryland’s highest court:  Concealment and non-disclosure are closely related and in any given situation usually overlap.... When [either is] done without intent to mislead and without misrepresentation, it has no effect except where there is a duty of disclosure.... To create a cause of action, concealment must have been intentional and effective - the hiding of a material fact with the attained object of creating or continuing a false impression as to that fact. The affirmative suppression of the truth must have been with intent to deceive.  Fegeas v. Sherrill, 218 Md. 472, 147 A.2d 223, 225 (1958) (quoting Restatement of Restitution §8 cmt. b (1937) and citing Restatement of Torts §550 (1938)).

Given this “close relationship” between nondisclosure and concealment, numerous decisions expressly distinguish between passive concealment - mere nondisclosure or silence - and active concealment, which involves the requisite intent to mislead by creating a false impression or representation, and which is sufficient to constitute fraud even without a duty to speak.

In short, at common law, no fiduciary relationship, no statute, no other independent legal duty to disclose is necessary to make active concealment actionable fraud - simple “good faith” imposes an obligation not to purposefully conceal material facts with intent to deceive. Strong v. Repide, 213 U.S. 419, 430, 29 S.Ct. 521, 53 L.Ed. 853 (1909); Tyler v. Savage, 143 U.S. 79, 98, 12 S.Ct. 340, 36 L.Ed. 82 (1892); Stewart, 128 U.S. at 388, 9 S.Ct. 101.  Colton, 231 F.3d at 898-99. Accord, e.g., Wells Fargo Bank v. Arizona Laborers, 38 P.3d 12, 21 (Ariz. 2002) (differentiating between mere silence or nondisclosure and intentional concealment and concluding that “[u]nlike simple nondisclosure, a party may be liable for acts taken to conceal, mislead or otherwise deceive, even in the absence of a fiduciary, statutory, or other legal duty to disclose.”).

The Colton court’s in-depth analysis is consistent with the observations made by our Superior Court in Youndt v. First National Bank, 868 A.2d 539 (Pa. 26 Super. 2005), and Baker v. Cambridge Chase, Inc., 725 A. 2d 757 (Pa. Super. 1999). In Youndt, the Superior Court concluded that the tort of fraudulent concealment in the Restatement (Second) of Torts §550 was not applicable because there was no allegation that the defendant in that case engaged in active concealment, but the court also stated that the defendant could be held liable for nondisclosure under the Restatement (Second) of Torts §551 if an enumerated duty to disclose existed. 868 A.2d at 549-51. In Baker, the Superior Court noted that for purposes of the Restatement (Second) of Torts §550, “concealment or other action” occurs, inter alia, when there is “an intentional concealment of true facts which is calculated to deceive the other party.” 725 A.2d at 769. Accordingly, we find the Colton court’s commentary consonant with Pennsylvania law and persuasive.

welfare - transfer of assets - renunciation of right to remaining principal in residual trust

Shell v. DPW – Cmwlth. Court – December 4, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/203CD13_12-4-13.pdf?cb=1

This case presents an issue of first impression as to whether a beneficiary’s renunciation of her right to the remaining principal in a terminated residual trust, originally created by will, constitutes a transfer of assets for less than fair consideration thereby affecting her eligibility for Medical Assistance - Long Term Care (MA-LTC) benefits.

Specifically, Dorothy Schell petitions for review of the final administrative action order of the Department of Public Welfare, affirming the adjudication and order of an administrative law judge ) recommending the denial of Petitioner’s appeal from the determination of the Northumberland County Assistance Office  that she was ineligible for MA-LTC benefits for the period from January 28, 2011, through August 16, 2012. We affirm.

arbitration - two-contract setting - no arb. clause in retail installment sales contract

Knight v. Springfield Hyundai – Pa. Super. – December 2, 2014

http://www.pacourts.us/assets/opinions/Superior/out/J-A23029-13o%20-%201016343761821856.pdf?cb=1

Pennsylvania has a well-established public policy that favors arbitration, and this policy aligns with the federal approach expressed in the Federal Arbitration Act.” . “Arbitration is a matter of contract, and parties to a contract cannot be compelled to arbitrate a given issue absent an agreement between them to arbitrate that issue.” . “Even though it is now the policy of the law to favor settlement of disputes by arbitration and to promote the swift and orderly disposition of claims, arbitration agreements are to be strictly construed and such agreements should not be extended by implication.

The Pennsylvania Legislature enacted the MVSFA in 1947 in an attempt to promote the welfare of its inhabitants and to protect its citizens from abuses presently existing in the installment sale of motor vehicles, and to that end exercise the police power of the Commonwealth to bring under the supervision of the Commonwealth all persons engaged in the business of extending consumer credit in conjunction with the installment sale of motor vehicles; to establish a system of regulation for the purpose of insuring honest and efficient consumer credit service for installment purchasers of motor vehicles; and to provide the administrative machinery necessary for effective enforcement. 69 P.S. § 602.

Pursuant to the MVSFA, if a buyer is purchasing a vehicle via installment sale, the contract must be in writing, signed by the buyer and the seller, “and shall contain all of the agreements between the buyer and the seller relating to the installment sale of the motor vehicle sold[.]” 69 P.S. § 613(A) (emphasis added).

There are no cases interpreting section 613(A) of the MVSFA. Looking at the clear and unambiguous language of the statute, it is apparent that when a buyer makes a purchase of a vehicle by installment sale, the retail installment sales contract (RISC) subsumes all other agreements relating to the sale. See 1 Pa.C.S.A. § 1921(b) (“When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”).

In this case, the Buyer’s Order contained an arbitration agreement, but the RISC did not. Thus, we conclude there was no enforceable arbitration agreement between Knight and Appellees, and the trial court erred as a matter of law by granting Appellees’ Preliminary Objections and submitting the case to binding arbitration.

UC - reconsideration - good cause

Laster v. UCBR – Cmwlth. Court – November 26, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/151CD13_11-26-13.pdf?cb=1

Claimant had problems with her supervisor.  When they reviewed a written report of the supervisor, claimant said she wasn’t accusing the supervisor of lying but one statement in the report was a lie.  Claimant was fired and referee found she'd committed willful misconduct.

Claimant timely appealed to the UCBR, which determined that although Employer had the right to discharge Claimant, Claimant’s statement to her supervisor that the supervisor was lying was not willful misconduct. (UCBR’s Decision, 10/12/12, at 3.) The UCBR explained:

 

The claimant may not have used the most appropriate language by spontaneously saying that it was a lie. The employer may have had reason to determine that the claimant could no longer work with her supervisor. However, the claimant’s comment was not so egregious as to rise to the level of disqualifying willful misconduct.

Therefore, the UCBR reversed the referee’s decision and awarded Claimant benefits.

By letter dated October 26, 2012, Employer requested reconsideration of the UCBR’s decision. In the five-page letter, Employer objected to Claimant’s petition for appeal to the UCBR, claiming that it was improperly filed by a different counsel than was present at the referee’s hearing and that it was replete with inaccurate and misleading statements. Employer also outlined numerous “inaccuracies” in the UCBR’s findings of fact and offered Employer’s “corrected” version of the facts.

The UCBR granted Employer’s request for reconsideration and vacated its prior order. The UCBR did not state any reason for granting reconsideration and did not take any additional evidence. The UCBR then entered a new order affirming the referee’s denial of benefits under section 402(e) of the Law. The UCBR concluded:

The claimant stated the supervisor was lying. At that point, the employer had reason to determine that the claimant could no longer work with her supervisor. However she phrased it, the claimant accused her supervisor of lying at a meeting with the Executive Director. That amounts to disqualifying willful misconduct.

Claimant requested reconsideration of the UCBR’s decision, which the UCBR denied.

In her petition for review, Claimant asserts that the UCBR abused its discretion in granting reconsideration and vacating its October 12, 2012, order without good cause. We agree.

The UCBR’s regulations provide that reconsideration will be granted “only for good cause in the interest of justice without prejudice to any party.” 34 Pa. Code §101.111(b). “In determining whether ‘good cause’ exists, the [UCBR] must consider whether the party requesting reconsideration has presented new evidence or changed circumstances or whether [the UCBR] failed to consider relevant law.” Ensle v. Unemployment Compensation Board of Review, 740 A.2d 775, 779 (Pa. Cmwlth. 1999). None of these requirements was met in this case.

In its reconsideration request, Employer did not allege a change of circumstance, seek to introduce new evidence that was unavailable at the time of the hearing, or articulate any legal theory that the UCBR failed to consider in its initial decision. Employer merely reargued its case before the UCBR, which is not “good cause” for granting reconsideration. See Bushofsky v. Unemployment Compensation Board of Review, 626 A.2d 687, 690 (Pa. Cmwlth. 1993) (stating that reconsideration is properly denied where the petitioner seeks to introduce “the evidence already offered”); Grcich v. Unemployment Compensation Board of Review, 440 A.2d 681, 682-83 & n.1 (Pa. Cmwlth. 1982) (holding that the UCBR improperly granted reconsideration and reversed its prior order where “the only additional factual elements contained in the record” after the UCBR’s initial decision were two employer letters asserting that the UCBR “‘completely ignore[d] the testimony of every witness except [claimant]’” and committed other improprieties) (quoting the record); see also Ensle, 740 A.2d at 779-80 (noting that the UCBR may not grant reconsideration merely to revisit credibility issues).

Moreover, “before the [UCBR] agrees to reconsider its own decision[,] there must appear of record some reason to support this exercise of discretion.” Flanagan v. Unemployment Compensation Board of Review, 407 A.2d 471, 473 (Pa. Cmwlth. 1979). Here, nothing in Employer’s reconsideration request, the UCBR’s order granting reconsideration, or the record demonstrates good cause. In addition, because the UCBR failed to state its reason for granting reconsideration and took no additional evidence, Claimant had no opportunity to present her position on the issue or issues being reconsidered. The UCBR acted in direct conflict with its own regulation, which states that reconsideration is proper “only for good cause in the interest of justice without prejudice to any party.” 34 Pa. Code §101.111(b). Therefore, we conclude that the UCBR abused its discretion in granting reconsideration without good cause.

Judgment - execution - entireties property - separate judgments v. spouses cannot be combined

ISN Bank v. Rajaratnam – Superior Cour – November 25, 2012

http://www.pacourts.us/assets/opinions/Superior/out/J-A26018-13o%20-%201016301321817376.pdf?cb=1

Appellant, ISN Bank appeals from the order of the trial court dated January 24, 2013 denying a motion to consolidate two judgments, one each against Appellees, a married couple.

This case presents an issue of first impression for Pennsylvania appellate courts, namely whether separate judgments entered against a husband and wife may be consolidated so that assets held as tenants by the entireties may be executed upon to satisfy a joint indebtedness. For the reasons that follow, we conclude that they may not be consolidated and affirm the trial court’s order.

No procedural mechanism exists in Pennsylvania to consolidate judgments against different people. Rule 3025.1 of the Pennsylvania Rules of Civil Procedure authorizes the consolidation of “two or more judgments entered against the same person in the same county,” Pa.R.C.P. 3025.1, but no similar rule sanctions the consolidation of two or more judgments entered against different people (whether husband and wife, or otherwise).

Even if a procedural mechanism did exist for consolidating judgments against different people, Pennsylvania substantive law would not permit consolidation in this case. In this regard, we begin with the 1912 decision in Beihl v. Martin, 236 Pa. 519, 84 A. 953 (1912), in which our Supreme Court discussed “the modern innovations on the common law respecting the property rights of married women.” Id. at 522, 84 A. at 954.

One is the basic attributes of property held in a tenancy by the entireties is that, fundamentally the estate rests on the legal unity of husband and wife. It is therefore a unit, not made up of divisible parts subsisting in different natural persons, but is an indivisible whole, vested in two persons actually distinct, yet to legal intendment one and the same. Each is seised of the whole estate from its inception, and upon the death of one, while the right of survivorship remains to the other, that other takes no new title or estate. It is this striking peculiarity of the estate—the entirety alike in husband and wife—that operates to exempt it from execution and sale at the suit of a creditor of either separately. The enforcement of such process would be the taking of the property of one to pay the debt of another. Id. at 522-23, 84 A. at 954. Because of this “striking peculiarity,” the Supreme Court observed that any disposition of property held as tenants by the entireties must be based upon a “joint act” of husband and wife together.

Based upon the basic principles established in Beihl, the law of Pennsylvania has developed to provide that in order to execute upon property held as a tenancy by the entireties, a creditor must obtain a judgment against both the husband and the wife as joint debtors: The law of Pennsylvania is quite clear that a judgment creditor may execute on entireties  property to enforce his judgment if both spouses are joint debtors. However, if only one spouse is a debtor, entireties property is immune from process, petition, levy, execution or sale. In the latter situation, the judgment creditor has only a potential lien against property held by the entireties based on the debtor spouse's expectancy to become sole owner. Further, where a husband and wife own property as tenants by the entireties, they may alien it without infringing upon the rights of one spouse's creditors. Klebach v. Mellon Bank, N.A., 565 A.2d 448, 450 (Pa. Super. 1989) (citations omitted); see also Arch Street Bldg. & Loan Assn. v. Sook, 158 A. 595, 596 (Pa. Super. 1932) (“In order to bind the land held by entireties, judgment must include both of the parties.”); Napotnik v. Equibank and Parkvale Sav. Ass'n, 679 F.2d 316, 321 (3d Cir. 1982)  (“[A] creditor with a joint judgment on a joint debt may levy upon the property itself and thus upon the interests of both spouses.”).

 Beihl establishes the requirement of “joint action” by spouses to permit execution on property held as a tenancy by the entireties, but did not address what type of “joint action” is required of spouses to create a joint debt to permit an encumbrance. Beihl does not resolve the question of whether the “joint action” requirement must be satisfied by the performance of a single act performed by husband and wife together, or if instead separate acts resulting in the same indebtedness will suffice. In this case, Customers Bank contends that although the two judgments at issue here resulted from separate acts (i.e., signing two different guarantee agreements), the end result of these separate acts was a joint indebtedness of the Rajaratnams, thus permitting consolidation of the judgments to reach their entireties property to satisfy said joint indebtedness.  

 As noted, no Pennsylvania appellate court has addressed this issue. In A. Hupfel’s Sons v. Getty, 299 F. 939 (3d Cir. 1924), however, the Third Circuit Court of Appeals, applying Pennsylvania law, considered whether  separate acts by spouses resulting in a joint indebtedness may result in the encumbrance of entireties property under the principles set forth in Beihl. While the decision in A. Hupfel’s Sons is not binding upon this Court, we may consider it as persuasive authority on the issue now before this Court. See, e.g., Commonwealth v. Dunnavant, 63 A.3d 1252, 1255 n.2 (Pa. Super. 2013), appeal granted on other grounds, __ Pa. __, 73 A.3d 524 (2013).

 We agree with the Third Circuit that separate actions by spouses resulting in separate judgments are not sufficient to encumber entireties property.2 To establish a joint debt that may serve as the basis for a lien on entireties property, the two spouses must act together in the same transaction and in so doing incur a joint liability.3 Only by acting together will the spouses satisfy Beihl’s “joint action” requirement, as their mutual decision to incur a joint debt demonstrates a willingness to “strip the estate of its attributes and create a wholly different estate in themselves.” Beihl, 236 Pa. at 527-28, 84 A. at 956. In the present case, the separate judgments against the Rajaratnams were entered pursuant to separate documents, in separate transactions, and for separate considerations.