contracts - statute of limitations - contract under seal

Driscoll v. Arena – Pa. Super.  – February 12, 2018  (2-1)

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Affirmed%20%2010342570932914664.pdf?cb=1

Held:  A contract which does not have “seal” or “L.S.” or other language to indicate that it was signed under seal is subject to the regular contract statute of limitation of four (4) years,  42 Pa. C.S. 55245(a)(8) and not the extended 20-years SOL for contracts under seal, 42 Pa. C.S. 55245(b)(1).

That result is not changed by the inclusion of a paragraph entitled “waiver” which includes the following language: ““Borrower intends this to be a sealed instrument and to be legally bound thereby.”

The court recognized that contracts under seal are a “vestige of the past.” 

Ed. note:  What the court did not say is that the seal practice is a trap for all but the very most sophisticated parties, and that virtually no one has the slightest idea of what “seal” means or does.   This seems like something that could be challenged in an appropriate case.  See, e.g., Investors Loan Corp.v. Perez, 74 D & C 2d149 (C.P.Adams 1975).

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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

debt collection - FDCPA - tine-barred debts - settlement offer "could" violated FDCPA

Tatis v. Allied Interstate, LLC – 3d Cir. – February 12, 2018

http://www2.ca3.uscourts.gov/opinarch/164022p.pdf

A collection letter sent to collect a time-barred debt that makes a “settlement offer” to accept payment “in settlement of” the debt may violate the FDCPA general prohibition against “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e.

The collection letter stated as follows: “[The creditor] is willing to accept payment in the amount of $128.99 in settlement of this debt. You can take advantage of this settlement offer if we receive payment of this amount or if you make another mutually acceptable payment arrangement within 40 days . . . .”

Huertas v. Galaxy Asset Management, 641 F.3d 28, 32–33 (3d Cir. 2011) (per curian) stands for the proposition that debt collectors do not violate 15 U.S.C. § 1692e(2)(A) when they seek voluntary repayment of stale debts, so long as they do not threaten or take legal action. But the FDCPA sweeps far more broadly than the specific provision found in § 1692e(2)(A). It prohibits “any false, deceptive, or misleading representation” associated with debt-collection practices. 15 U.S.C. § 1692e (emphasis added). Accordingly, this appeal requires us to decide whether collection letters may run afoul of the FDCPA by misleading or deceiving debtors into believing they have a legal obligation to repay time-barred debts even when the letters do not threaten legal action.

Since Huertas, three other United States Courts of Appeals have addressed the question presented in this appeal. All three have determined that, even absent threats of litigation, it is plausible that offers to “settle” time-barred debts could mislead the least-sophisticated debtor.  McMahon v. LVNV Funding, LLC, 744 F.3d 1010 (7th Cir. 2014);  Buchanan v. Northland Group, Inc. held that a settlement offer could “plausibly mislead an unsophisticated consumer into thinking her lender could enforce the debt in court.” 776 F.3d 393, 395 10 (6th Cir. 2015);  Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507, 513 (5th Cir. 2016).  The court was persuaded that these decisions offer the best interpretation of the FDCPA.

The court reiterated what it said in Huertas and elsewhere: standing alone, settlement offers and attempts to obtain voluntary repayments of stale debts do not necessarily constitute deceptive or misleading practices. See Huertas, 641 F.3d at 32–33; see also Campuzano-Burgos, 550 F.3d at 299 (noting that “[t]here is nothing improper about making a settlement offer”).   Nor did the court impose any specific mandates on the language debt collectors must use, such as requiring them to explicitly disclose that the statute of limitations has run. 

  The court did not, therefore, hold that the use of the word “settlement” is “misleading as a matter of federal law.” Buchanan, 776 F.3d at 400 (Kethledge, J., dissenting). Rather, in keeping with the text and purpose of the FDCPA, “we merely reiterate that any such letters, when read in their entirety, must not deceive or mislead the least-sophisticated debtor into believing that she has a legal obligation to pay the time-barred debt.”  See, e.g., Caprio, 709 F.3d at 149 (noting that “even the ‘least sophisticated debtor’ is expected to read any notice in its entirety”); Huertas, 641 F.3d at 33 (examining the specific language used in the letter from the perspective of the least-sophisticated debtor); Campuzano-Burgos, 550 F.3d at 300 (analyzing letters “as a whole”).

UC - willful misconduct - absences - illness

Klampfer v. UCBR -  Cmwlth. Court – 2-1-18 – unreported memorandum opinion**

http://www.pacourts.us/assets/opinions/Commonwealth/out/540CD17_2-1-18.pdf?cb=1

Claimant was terminated after she called off work four (4) times within two weeks of her return to work after undergoing open heart surgery and being on approved FMLA leave.   Claimant got a doctor’s note, stating that her absences were legitimate, but was unable to provide it until after she was terminated.   The ER policy stated that termination would result with 4 chargeable absences (anything other than a death in the family within a 90-day period.  ER policy did not specify a time limit on providing a doctor’s note, which would have resulted in collapsing the four absences into one.

Willful misconduct

The court held that, under the circumstances, claimant did not commit willful misconduct.

An employer seeking to prove willful misconduct by a policy violation must demonstrate the existence of the policy, its reasonableness, and its violation. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518 (Pa. Cmwlth. 1999). “The employer must also show that the employee intentionally or deliberately violated the work rule.” Chester Cmty. Charter Sch. v. Unemployment Comp. Bd. of Review, 138 A.3d 50, 54 (Pa. Cmwlth. 2016) (emphasis added). This Court “must determine if the work rule is reasonable in light of all the circumstances and whether [a claimant] had good cause to violate the work rule.” Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 703 A.2d 452, 459 (Pa. 1997).

Absence due to illness is not willful misconduct.

“[T]he law is clear that absence due to illness is not willful misconduct.” Green v. Unemployment Comp. Bd. of Review, 433 A.2d 587, 589 (Pa. Cmwlth. 1981) (reversing Board determination that claimant’s seven absences constituted willful misconduct when some absences related to sickness); see Tritex Sportwear, Inc. v. Unemployment Comp. Bd. of Review, 315 A.2d 322 (Pa. Cmwlth. 1974). When the violation of an employer’s absence policy is grounds for termination, and the policy makes no distinction between absences for illness and absences for other reasons, there is no willful misconduct based on the policy violation alone. Green.

In this case, as in Green,  there was “ no willfulness in Claimant’s violation of the Policy when she was absent four times within 90 days as a result of her illness. When a claimant violates a policy because of her illness, we do not ascribe deliberate disregard to her violation. See Phila. Parking Auth. v. Unemployment Comp. Bd. of Review, 1 A.3d 965 (Pa. Cmwlth. 2010) (inadvertent violation of employer’s rule does not constitute willful misconduct). While such absences may be a reason for discharge, they are not a reason for a denial of UC benefits. Runkle v. Unemployment Comp. Bd. of Review, 521 A.2d 530 (Pa. Cmwlth. 1987); Green.   The fact that the manager warned Claimant about potential discipline as a result of her absences without documentation does not alter this conclusion.

The application of the ER policy is this case was unreasonable. Phila. Parking Auth. v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 609 C.D. 2015, filed November 17, 2015), 2015 WL 7356313 (unreported) (holding employer unreasonably applied policy to claimant who had serious health condition).   “[A]pply[ing] its regular policy for employees who have called in sick, to an employee who has requested, certified, and received leave under the FMLA is not reasonable.” Id., slip op. at 9, 2015 WL 7356313, *5.

Good cause

The court went on to hold that, even though claimant’s actions did not constitute willful misconduct, it nevertheless recogniaed that a claimant with a document illness has goode cause  for non-compliance with an employer directive.

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**An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

admin.law - credibility - review by factfinder who did not hear/see the evidence

J.K. v. Dept. of Human Services – Cmwlth. Court – January 30, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/367CD17_1-30-18.pdf?cb=1

Generally, “[d]eterminations as to credibility and evidentiary weight will not be disturbed on appeal absent an abuse of discretion.” F.V.C. v. DPW, 987 A.2d 223, 228 (Pa. Cmwlth. 2010). When the factfinder does not observe the testimony that is the basis of the evidence, a more thorough review of credibility determinations is required. See McElwee v. SEPTA, 948 A.2d 762, 774 n.10 (Pa. 2008). In McElwee, the Supreme Court stated that, “[t]he need for an articulated, reasoned basis for rejecting such testimony seems especially pronounced where, as here, the trial court did not observe witness demeanor but, instead, merely reviewed the deposition transcripts and documentary exhibits.” Id. A factfinder’s credibility determinations cannot be arbitrary. Id. 

child abuse - credibility - child's testimony tainted

J.K. v. Dept. of Human Services – Cmwlth. Court – January 30, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/367CD17_1-30-18.pdf?cb=1

Finding of abuse reversed where

            * on remand, ALJ made opposite findings from his initial findinds, based on same record

            * child’s testimony was tainted

Initial decision appealed and remanded, because of change in standard of proof from clear+convincing to preponderance, G.V. v. DPW, 91 A.3d 667 (Pa. 2014, GV II).  On remand, the same ALJ did a complete about face (or volte face, as the Court stated), without  any “articulated, reasoned basis” for doing so.  The intial objections to the child’s testimony (vague, conclusory, lacking in precision, etc.) were not obviated by the application of a different standard of proof.

In addition, the court held that the evidence showed that the child was not competent to testify because her testimony was tainted. 

“Examples of relevant factors showing “some evidence” of taint, are as follows: (1) the age of the child; (2) the existence of a motive hostile to the defendant on the part of the child’s primary custodian; (3) the possibility that the child’s primary custodian is unusually likely to read abuse into normal interaction; (4) whether the child was subjected to repeated interviews by various adults in positions of authority; (5) whether an interested adult was present during the course of any interviews; and (6) the existence of independent evidence regarding the interview techniques employed. Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006) (citing Delbridge, 855 A.2d at 41). The list is not exhaustive; further, the party asserting taint need not satisfy each and every factor.... The uncontroverted and accepted evidence of record establishes that every factor is applicable to this case.

and that “the Child’s testimony was tainted.  A witness whose testimony has been deemed tainted must be dismissed as incompetent.”

employment - govt. employment - free speech - First Amendment

Bradley v. West Chester University – 3d Cir. – January 26, 2018

http://www2.ca3.uscourts.gov/opinarch/171588p.pdf

Speech by government employees is constitutionally protected when the employee is speaking “as a citizen, not as an employee,” and when the speech “involve[s] a matter of public concern.”30 If these two prerequisites are not met, a public employee “has no First Amendment cause of action based on his or her employer’s reaction to the speech.”31

In Garcetti v. Ceballos, the United States Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes,” and that, therefore, “the Constitution does not insulate their communications from employer discipline.”32

On the other hand, in Dougherty v. School District of Philadelphia, we held that a school district employee was not speaking pursuant to his official duties—and was instead speaking as a citizen—when he disclosed alleged misconduct by the school superintendent to a local newspaper.40 And in Flora v. County of Luzerne, we held that a public defender sufficiently alleged that he was speaking as a citizen when he initiated a class action lawsuit on behalf of indigent criminal defendants and reported his county’s noncompliance with a Pennsylvania Supreme Court order to the Special Master whose report had given rise to that order.41

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30 Dougherty, 772 F.3d at 987. Here, the parties do not dispute that Ms. Bradley’s speech involved a matter of public concern.

31 Garcetti, 547 U.S. at 418.

32 Id. at 421; see also id. at 421-22 (“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”).

40 Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 983, 988 (3d Cir. 2014).

41 Flora v. Cty. of Luzerne, 776 F.3d 169, 173, 179-80 (3d Cir. 2015).

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Query -- What about the state constitution?

UC - self-employment - Uber driver

Lowman v. UCBR – Cmwlth. Court –  en banc – January 24, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/686CD16_1-24-18.pdf?cb=1 (26 pp.)

Donald Lowman petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) that affirmed the Referee’s decision that Claimant was ineligible for benefits under Section 402(h) of the Unemployment Compensation Law.  The Board concluded that Claimant’s work as an Uber driver constituted self-employment that rendered, 43 P.S. §802(h).  In relevant part, Section 402(h) provides that “an employe shall be ineligible for compensation for any week in which he is engaged in self-employment….” 43 P.S. §802(h).

Because the Department of Labor and Industry did not demonstrate that Claimant intended to enter into an independent business venture by becoming an Uber driver, we conclude that he remains eligible for benefits as a matter of law.   Accordingly, we reverse the Board’s April 22, 2016, order and remand for further proceedings.

discriminatory lending - Fair Housing Act - City of Phila. v. Wells Fargo

City of Phila. v. Wells Fargo – ED Pa. – Jan. 16, 2018

https://www.paed.uscourts.gov/documents/opinions/18D0032P.pdf

MEMORANDUM

On May 15, 2017, Plaintiff City of Philadelphia filed its 52-page Complaint alleging one claim against Defendants Wells Fargo & Co., Inc. and Wells Fargo Bank, N.A. for violating the Fair Housing Act, 42 U.S.C. §§ 36-1, et seq. The Complaint accuses Wells Fargo of engaging in discriminatory mortgage-lending practices against African-American and Latino residents of Philadelphia. Wells Fargo’s alleged practices constitute “reverse redlining,” which involves targeting minorities and minority communities with exploitive loan products that have higher costs and worse terms than those offered to similarly situated white borrowers.  

Publicly available loan data has been analyzed by the City to indicate the existence of “at least 1,067 discriminatory high-cost or high-risk loans issued to minority borrowers by Wells Fargo in Philadelphia between 2004 and 2014 that resulted in foreclosure.”  These loans are concentrated in areas of the city that have high rates of poverty and significant AfricanAmerican and Latino populations.  According to the City, this practice has “continue[d] through the present and has not terminated.”

The City alleges disparate treatment and disparate impact as theories for its FHA claim, Compl. and based on those theories, the City alleges two types of injuries: non-economic and economic. For its non-economic injuries, the City alleges that Wells Fargo’s conduct negatively impacts the ability of minority residents to own homes in Philadelphia, which injures the City’s “longstanding and active interest in promoting fair housing and securing the benefits of an integrated community.”  The City alleges that it expends resources combating housing discrimination and that Wells Fargo’s actions have interfered with those efforts. For its economic injuries, the City alleges that the discriminatory loans issued by Wells Fargo cause increases in foreclosures that diminish the City’s tax revenues and increase its spending on municipal services.

To remedy its injuries, the City seeks injunctive relief and damages.  On July 21, 2017, Wells Fargo filed a motion to dismiss and a motion to strike.  On November 3, 2017, Wells Fargo filed a motion to stay and/or limit discovery.

I will deny all motions. The motion to dismiss and motion to stay and/or limit discovery are discussed below, and the motion to strike will be addressed in a separate order

False Claims Act - whistleblower protection - but-for causation required

DiFiore v. CSL Behring, LLC – 3d Cir. – Jan. 3, 2018

http://www2.ca3.uscourts.gov/opinarch/164297p.pdf

Marie DiFiore asserted claims against her former employer, CSL Behring, for retaliation in violation of the False Claims Act, and for wrongful discharge under a theory of constructive discharge in violation of Pennsylvania state law.

Held: An employee’s protected activity must be the “but-for” cause of adverse actions to support a claim of retaliation under the FCA.

child abuse - using drugs during pregnancy

In the Interest of L.B. – Pa. Super. – 12-27-17

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20VacatedRemanded%20%2010336976031162337.pdf?cb=1

Held: A pregnant woman may commit child abuse under the Child Protective Services Law, 23 Pa.C.S. §§ 6301 et seq., based on use of illegal drugs while pregnant,  if CYS establishes that, by using the illegal drugs, the mother intentionally, knowingly, or recklessly caused, or created a reasonable likelihood of bodily injury to a child after birth.

tax sale - notice - "reasonable efforts" to find/notify property owner

Klemmer v. Fayette Co. Tax Claim Bureau – Cmwlth. Court – December 14, 2017

http://www.pacourts.us/assets/opinions/Commonwealth/out/260CD17_12-14-17.pdf?cb=1

Upset tax sale set aside because tax claim bureau (TCB) failed to make any effort to locate the property owner, much less “reasonable efforts” required by 72 P.S. 5860.607a(a), where the certified mail notice was returned unsigned to the TCB, because the property owner was incarcerated during all relevant periods.

From the opinion:

Notice, due process

The Tax Sale Law requires a tax claim bureau to give notice to the delinquent taxpayer before his property can be sold in satisfaction of overdue taxes.  . . .The United States Supreme Court has held that due process is implicated when property is taken for the collection of taxes, stating: [p]eople must pay their taxes, and the government may hold citizens accountable for tax delinquency by taking their property.   But before forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking. . . .To satisfy due process, a tax claim bureau must provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” . . . .The notice provisions of the Tax Sale Law “assure that no one is deprived of property without due process of law.” . . . .Accordingly, a tax claim bureau must strictly comply with each and every statutory notice provision, or the tax sale will be set aside.

Focus on the actions of the TCB, not the property owner

In reviewing the validity of a tax sale, the court must focus “not on the alleged neglect of the owner, which is often present in some degree, but on whether the activities of the [tax claim bureau] comply with the requirements of the [statute].” Consolidated Reports, 132 A.3d at 644 (quoting Smith, 834 A.2d at 1251). It is the conduct of the tax claim bureau that is determinative of compliance with the statutory notice provisions.

Reasonable efforts requirement

Where a notice to the property owner is either returned without the required signed return receipt, or there are other circumstances which raise a “significant doubt” as to actual receipt of the notice, then before a tax sale can take place, the TCB “must exercise reasonable efforts to discover the whereabouts of [the property owner]and notify him.  72 P.S./ 5860.607a(a).      The statutory list of possible “reasonable efforts” details the “mandatory minimum search required,” but what constitutes a reasonable effort is fact-specific.  . . . .It matters not that the reasonable effort may not have borne fruit. An effort must still be undertaken. . . . Futility is not a defense to a tax claim bureau’s failure to exercise reasonable efforts.  Further, the tax claim bureau must do a reasonable search even where the address to which the tax claim bureau sent the notices is correct. . . .. Here, the Tax Claim Bureau did not offer evidence that it undertook any effort to locate Taxpayer. 

UC - financial eligibility - proof of earnings - testimony, written records

Kearsley v. UCBR – Cmwlth. Court – 11-28-17 – unreported* memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/294CD17_11-28-17.pdf?cb=1

Held:  UCBR erred in rejecting claimant’s testimony about her wages and her 1009 form, without making any credibility findings, and in holding that written pay stubs were the only competent evidence of her wages.

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

Paternity - acknowledgment - 23 Pa. C.S. 5103.

S.N.M. v. M.F. – Superior Court – November 20, 2017

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Reversed%20%2010332512427696831.pdf?cb=1

Held:  Trial court erred in ordering putative father’s (PF) 2016 motion for genetic testing, where custody order had been entered between mother and PF, including PF’s formal acknowledgment of paternity.

In R.W.E. v. A.B.R., 961 A.2d 161 (Pa. Super. 2008), the Court stated that a signed, witnessed, voluntary acknowledgment of paternity shall be considered a legal finding of paternity if it is not rescinded by the signatories within sixty days of its signing. 23 Pa.C.S. § 5103(g)(1). After sixty days, the acknowledgment may only be challenged in court on the basis of fraud, duress or material mistake of fact, if established by the challenger through clear and convincing evidence. 23 Pa.C.S.  § 5103(g)(2). Id. at 167. Thus, because PF signed the acknowledgment of paternity and presented nothing to show fraud, duress or material mistake of fact, the paternity of child was established and cannot be challenged at this point.   Accord,  D.M. v. V.B., 87 A.3d 323, 327 (Pa. Super. 2014)

See also Wachter v. Ascero, 550 A.2d 1019, 1021 (Pa. Super. 1988) (stating that “blood test should not have been ordered … even for humanitarian purposes, and should never be ordered unless it is to establish paternity in a proceeding where paternity is a relevant fact and has not already been determined in a prior proceeding”). Here, the custody agreement, made an order of court, is such a proceeding that determined paternity. Accordingly, the trial court abused its discretion in granting the genetic testing.

UC - willful misconduct - good cause - religious belief

Kaite v. UCBR – Cmwlth. Court – November 29, 2017

http://www.pacourts.us/assets/opinions/Commonwealth/out/851CD16_11-29-17.pdf?cb=1

Claimant had good cause to refuse employer direction for her to get a fingerprint background check, where she had a sincerely held religious belief against fingerprinting, in spite of the fact that she did not belong to an particular church or other religious organization. 

From the opinion:

The employer bears the burden of proving the existence of the work rule and its violation, and once the employer establishes that, the burden then shifts to the claimant to prove that the violation was for good cause. Oliver v. UCBR, 5 A.3d 432, 438 (Pa. Cmwlth. 2010). Where the state denies benefits because of conduct mandated by a religious belief, putting substantial pressure on a person to modify behavior and violate that belief, a burden upon religion exists. Cassatt v. UCBR, 642 A.2d 657, 659 (Pa. Cmwlth. 1994). The burden that a denial places on a claimant’s right to free exercise must be sufficiently compelling to override the claimant’s First Amendment rights. Id.

................

The United States Supreme Court has held that a conditioning of the availability of benefits upon an employee’s willingnessto violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties. Sherbert v. Verner, 374 U.S. 398, 406 (1963).

................

The Board found that Petitioner’s beliefs were personal and not religious because the Petitioner, at the time of the hearing, indicated she is not a member of any formal, recognized or organized religion. (R.R. 37a.) The Board 8 concluded the beliefs were personal because she kept her religion quiet and only practiced in her home. Id. The United States Supreme Court rejected the notion that to claim the protection of the Free Exercise Clause one must be responding to the commands of a particular religious organization. Frazee v. Illinois Department of Employment Security, 489 U.S. 829, 834 (1989). This Court cautioned in Monroe that the Court must avoid any predisposition toward conventional religions so that unfamiliar faiths are not branded as secular beliefs. Monroe, 535 A.2d at 1225.   See also, U.S. Equal Employment Opportunity Commission [EEOC] v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017

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LT - excessive sec. deposit - violation of UTPCPL - treble damages

E.S. Management v. Gao et al. – Superior Court – November 15, 2017

http://www.pacourts.us/assets/opinions/Superior/out/26978276.pdf?cb=1

Landlord found liable to four Chinese national students at Carnegie Mellon University

* excessive security deposit (more than two months), in violation of  68 P.S. 250.511a

* UTPCPL violation – students were in China, had limited English proficiency, lease at 15 pages, single-spaced,

   students given only two days to review it – lease never executed - L refused to return deposit

* treble damages award under UTPCPL affirmed – egregious conduct present but not required -

“Discretion to treble damages under the UTPCPL should not be closely constrained by the common-law requirements associated with the award of punitive damages. . . . Nevertheless, the discretion of courts of original jurisdiction is not limitless, as we believe that awards of treble damages may be reviewed by the appellate courts for rationality, akin to appellate review of the discretionary aspect of equitable awards, as previously discussed. Centrally, courts of original jurisdiction should focus on the presence of intentional or reckless, wrongful conduct, as to which an award of treble damages would be consistent with, and in furtherance of, the remedial purposes of the UTPCPL. Schwartz v. Rockey, 932 A.2d 885, 898 (Pa. 2007) (internal citation and footnote omitted).”

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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

name change - transgender person - right to hearing

In re A.S.D – Pennsylvania Superior Court – November 20, 2017

majority opinion

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20VacatedRemanded%20%2010332513427696900.pdf?cb=1

concurring opinion

http://www.pacourts.us/assets/opinions/Superior/out/Concurring%20Opinion%20%20VacatedRemanded%20%2010332513427697006.pdf?cb=1

Transgender person (male to female) petitioned under 54 Pa. C.S.  702 for change of name, alleging consistent use, avoidance of identification issues, and lessening of social stigma.  Applicant had been convicated of 3d degree felony more than two (2) years prior to name change petition but was not on probation or parole and thus satisfied all statutory conditions under sec. 702 (c)(1), as the trial court recognized.  However, the trial court denied the petition, without holding a hearing, citing the criminal conviction, and provided that the applicant could re-file in 12 months.

The majority reversed and remanded for a hearing, citing In re Harris, 707 A.2d 225 (Pa. Super. 1997), which mandated a hearing if a petitioner satisfied all statutory prerequisites, after which it could grant or deny the petition.  

The concurring judge felt tha compliance with the “technical requirements” of the name-change statute “should be the sole consideration...utilized by the trial court,” citing the concurring opinion of Juge Popovich in In re Harris.  The judge felt that the petition should be granted “if, upon holding the hearing, the court find no indication that the name change is being sought for fraudulent purposes.”

The concurring judge said:

In enunciating his position, Judge Popovich highlighted the rationale underlying the change of name statute, noting that the primary purpose is to prohibit fraud by those trying to avoid financial obligations. This intent is reflected in the penalty provision of the statute, which applies only to ‘person[s] violating the provision of this chapter for the purpose of avoiding payment of taxes or other debts.’ Id. at 229 (Popovich, J., concurring) (citing Commonwealth v. Goodman, 676 A.2d 234, 236 (Pa. 1996)). He observed that the statute is purely procedural, and absent an indication of fraudulent intent, “[t]his is where the inquiry ends.” Id. at 229. . . . .

I believe that the hearing required by 54 Pa.C.S. § 701(a.1)(3) is intended to provide a forum for individuals or creditors to oppose a proposed name change based on suspected fraudulent purposes or other nefarious intent. In re Miller, 824 A.2d 1207, 1210-1211 (Pa.Super. 2003) (stating “the necessity for judicial involvement in name change cases centers on government concerns that persons not alter their identity to avoid financial obligations.”) (brackets and citation omitted). Hence, any hearing held pursuant to the Judicial Change of Name statute should focus only upon evidence relating to these concerns and the requirements enunciated in § 702. I fear that any reason utilized outside the dictates of the statute to deny a petition raises the specter of pretext and constitutes an abuse of discretion.

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mortgage assistance - HEMAP - applicant not eligible

Bowman v. PHFA – Cmwlth. Court – November 14, 2017 – unreported memorandum opinion* 

http://www.pacourts.us/assets/opinions/Commonwealth/out/379CD17_11-14-17.pdf?cb=1 (18 pp.)

Held:  Applicant not eligible for HEMAP mortgage assistance. Substantial evidence supported findings that  a) there was no reasonable prospect that applicant would be able to resume full mortgage payments within 24 month, or b) that she was suffering from financial hardship due to circumstances beyond her control.

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)
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Comments by Peter Schneider of CLS 

This is an interesting decision. HEMAP denial was affirmed on the basis that there was no reasonable prospect of resuming payments, but Commonwealth Court disagreed with the hearing examiner’s finding that hardship was not beyond borrower’s control:

B. Financial Hardship

Petitioner’s failure to satisfy the reasonable prospect element of Act 91 is

dispositive of her application for a HEMAP loan. However, we write briefly to

highlight the errors the Hearing Examiner made when considering the issue of

financial hardship.

Act 91 provides that the mortgagor must establish that she “is suffering

financial hardship due to circumstances beyond the mortgagor’s control which

render the mortgagor unable to correct the delinquency or delinquencies within a

reasonable time and make full mortgage payments.” 35 P.S. § 1680.404c(a)(4). Act

91 does not define the phrase “circumstances beyond the mortgagor’s control.”

However, Act 91 indicates that PHFA “may consider information regarding the

mortgagor’s employment record, credit history and current income.” 35 P.S.

§ 1680.404c(a)(10). On the issue of the mortgagor’s employment record, PHFA’s

HEMAP Policy Statement adds that “[u]nemployment or underemployment,

through no fault of the homeowner” are examples of circumstances beyond the

mortgagor’s control that result in financial hardship to the mortgagor. 12 Pa. Code.

§ 31.205(b)(1).10

In contrast, PHFA will not consider “[t]ermination of employment

by the homeowner without a necessitous cause or termination of the homeowner’s

employment by an employer for willful misconduct” to be circumstances beyond the

mortgagor’s control. 12 Pa. Code § 31.205(c)(2). Section 31.205 of the Policy

Statement does not define “necessitous cause” or “willful misconduct.” However,

these same terms appear in Section 402(b) and (e) of the Unemployment

Compensation (UC) Law.11

In concluding that Petitioner did not suffer a financial hardship due to

circumstances beyond her control, the Hearing Examiner found both that Petitioner

“voluntarily terminated” her position with Human Services and that she was “forced

to resign.” (Examiner’s Decision at 2, 6.) These findings are inconsistent. See Pa.

Liquor Control Bd. v. Unemployment Comp. Bd. of Review, 648 A.2d 124, 126 (Pa.

Cmwlth. 1994) (noting that an employee who resigns in order to avoid an imminent

discharge has not voluntarily resigned but has been discharged and is entitled to UC

benefits if she has not committed willful misconduct). If Petitioner was forced to

resign in order to avoid an imminent discharge and did not commit an act of willful

misconduct, it may have been that the termination of her employment with Human

Services was through no fault of her own, and the loss of that employment, in

combination with the death of her mother and the resultant loss of $1,500 a month

in rental income, constituted a financial hardship due to circumstances beyond

Petitioner’s control. Thus, had Petitioner not failed to satisfy the reasonable prospect

element, we would have remanded this matter for the Hearing Examiner to resolve

this inconsistency on the issue of financial hardship.

9 A mortgagor may reapply for assistance from PHFA if “there is a material change in

circumstances.” 35 P.S. §1680.404c(b).

10 We have never held that 12 Pa. Code § 31.205 is a statement of policy and not a

regulation, but, as noted, we have held that the section that follows it, 12 Pa. Code § 31.206, is a

statement of policy, and all of subchapter B of chapter 31 of the Pennsylvania Code, which

addresses HEMAP, is referred to as a “policy statement.”

11 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.

§ 802(b), (e).

UC - willful misconduct - social media policy not violated

Waverly Heights Ltd. v. UCBR – Commonwealth Court – November 13, 2017

http://www.pacourts.us/assets/opinions/Commonwealth/out/312CD17_11-13-17.pdf?cb=1

Held: Tweet of claimant on her personal Twitter page held not to violate ER social media policy.

Tweet of July 2016:  “@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!”

Social media policy provided:

[Employer] has an interest in promoting and protecting its reputation[,] as well as the dignity, respect, and confidentiality of its residents, clients, and employees as depicted in social medial, whether through [Employer’s] own postings or that of others. Towards that end, [Employer] will actively manage the content of its social media sites to uphold the mission and values of the company. Also, [Employer] expects employees who identify themselves with [Employer] in either internal or external social media to conduct themselves according to this policy.

Where an employer seeks to deny UC benefits based on a work-rule violation, the employer must prove the existence of a work rule, the reasonableness of the rule and the employee's violation of the rule. Maskerines v. UCBR, 13 A.3d 553, 557 (Pa. Cmwlth. 2011). If the employer meets its burden, the burden then shifts to the claimant to demonstrate good cause for her actions. Johns, 87 A.3d at 1010. Here, Employer terminated Claimant for violating its Social Media Policy because she represented herself as Employer’s Vice President.

Protection of Victims of Sexual Violence or Intimidation Act (PVSVIA), 42 Pa.C.S. §§ 62A01-62A20 - standard of proof - preponderance of the evidence

EAM v. AMD III – Superior Court – October 26, 2017

http://www.pacourts.us/assets/opinions/Superior/out/25875005.pdf?cb=1

The standard of proof under the Protection of Victims of Sexual Violence or Intimidation Act (PVSVIA), 42 Pa.C.S. §§ 62A01-62A20, is a preponderance of the evidence, like the Protection from Abuse Act, 23 Pa. C.S. 6101 et seq., despite the fact that the definition of “sexual violence” is defined by reference to the Crimes Code, 18 Pa. C.S. ch. 31.

The court said that the “argument that the PVSVIA requires a finding of proof beyond a reasonable doubt, is untenable in light of the statutory framework as a whole. Thus, we reject Appellant’s premise that a criminal conviction or other finding of proof beyond a reasonable doubt is a prerequisite to a successful PVSVIA claim.” 

By its express terms, the statute is meant to provide “safety and protection from future interactions with” the person who abused them, “regardless of whether they seek criminal prosecution....This chapter provides the victim with a civil remedy requiring the offender to stay away from the victim....”   [emphasis in original]

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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

UC - late appeal - claimant negligence

Constantini v. UCBR – Cmwlth. Court – November 8, 2017

http://www.pacourts.us/assets/opinions/Commonwealth/out/1673CD16_11-8-17.pdf?cb=1 (2-1 decision).

Held:  Claimant not entitled to late appeal nunc pro tunc where she admitted having put aside notice of determination—out of frustraton with an adverse decision—and not examining it closely until the appeal time had passed.  

NOTE:  I think claimant was properly denied a late appeal in this case.  Even so, the case is disturbing because the Notice of Determination was dated June 3 but not mailed until June 6.  Although claimant was not granted a late appeal, the Court noted that appeal date “should have been June 21”—one day later than the date on the Notice (June 20).   The claimant did not file her appeal until June 28, five days after speaking with a Department rep., who advised her to file an appeal.