state right-to-know law - non-citizen request - privileges and immunities

Lee v. Minner - 3rd Circuit - August 16, 2006

http://www.ca3.uscourts.gov/opinarch/053329p.pdf

Delaware's freedom of information law -- the equivalent of Pennsylvania's Right to Know Law, 65 P.S. sec. 66.1, et seq. -- was held to violate the privileges and immunities clause of the U.S. Constitution by restricting the right of citizens of other states to access, inspect and copy public documents.

Delaware's attorney general rejected the request of a N.Y. citizen for documents based on Delaware law, which said that "any cititzen of the state" could inspect and copy records. The AG wrote to the requester that his address indicated that he was not a citizen of Delaware and so denied his request.

The court held that the citizens-only provision violated Article IV, sec. 2, of the US Constitution, which provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. This provision was "designed to 'fuse into one national a collection of independent sovereign states…and its object was to place the citizens of each state upon the same footing…so far as the advantages resulting from citizenship in those States are concerned….The section, in effect, prevents a State from discriminating against citizens of other states in favor of its own" unless there is a "substantial reasons for the discriminatory pracftice, and the practice bears a substantial relation to the state's objectives."

Pennsylvania's right to know law, 65 P.S., sec. 66.1, similarly defines "requester" as a "person who is a resident of the Commonwealth and requests a record pursuant to this act."

fraud - silence/concealment - duty to disclose

Lutzky v. Petcove - ED Pa - August 21, 2006

http://www.paed.uscourts.gov/documents/opinions/06D1054P.pdf

Motion to dismiss of third party defendant, a real estate agent, denied. Plaintiff adequately pleaded fraud, predicated on a defendant's having withheld material information about the condition of real property. Concealment or silence may constitute fraud where there is a duty to speak, which exists here under the state real estate disclosure law, 69 P.S. sec. 7310, and case law that makes a seller's agent potentially liable.

FMLA - "eligible employee" - length of employment

Flannery v. Nextgen Healthcare - ED Pa. - August 10, 2006

http://www.paed.uscourts.gov/documents/opinions/06d1001p.pdf

Plaintiff was not an "eligible employee" under the FMLA, 29 USC 2612(a), since he had not been employed at least 12 months at the time his leave began. "[A]t least one year must span the period between the date when the employee was hired and when the medical leave begins."

FMLA - accrual of benefits

Sommer v. The Vanguard Group - 3d Circuit - August 234, 2006
http://www.ca3.uscourts.gov/opinarch/054034p.pdf

Plaintiff was entitled only to partial bonus payment, prorated on the basis of the time he was absent on an FMLA leave. Granting prorated rather than full benefits did not violate the FMLA, 29 USC sec. 2601 et seq. Under the terms of the employment agreement, the bonus was a "production" bonus rather than an "absence of occurrence" bonus, i.e., it was based on hours worked, not on the non-occurrence of a specified event. To hold other "would violate the very terms of the FMLA" which states that "the leavetaker shall not be entitled to the "accrual of any seniority or employment benefits during any period of leave" other than one to which he would have been entitled absent the leave.

abuse - contempt - appeal - final order

Takosky v. Henning - Superior Court - August 25, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s43012_06.pdf

Defendant's appeal from a finding of contempt was quashed. Although the trial court had found him in contempt, it had not imposed any sanctions or punishment. "It is well settled that unless sanctions or imprisonment is [sic] imposed, an Order declaring a party to be in contempt is held to be interlocutory and not appealable."

appeal - late appeal - nunc pro tunc

City of Philadelphia v. Tirrill - Commonwealth Court - August 23, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/78CD06_8-23-06.pdf

This case is about a potbellied pig. It is also about filing an appeal nunc pro tunc (NPT). The city filed a complaint against Occupant for having a farm animal - a Vietnamese potbellied pig - in his residence, contrary to the city health code. The trial court found that the pig was a "farm animal" and entered an order in November 2005. The Court sua sponte dismissed Occupant's appeal, because it was not filed until 36 days after the court order -- beyond the 30-day appeal period.

Occupant filed a leave to appeal NPT, 29 days after the court's dismissal order. Commonwealth Court affirmed in a 6-1 decision. Noting the Occupant did not offer any explanation about the 29-day delay in filing his NPT application, the court dismissed the appeal, since the application for relief was not filed promptly, within a reasonable time, once he knew of the need to take action.

"[A]ppeal periods are jurisdictional and may not be extended as a matter of grace or mere indulgence; othewise there would benon finality to judicial action….[T]he attractiveness of an argument on the merits is of no moment because the tribunal is without power to grant the requested relief" even with the appeal is filed one day late.

"Under extraordinary circumstances, however, a court may extend the appeal period by granting equitable relief in the form of a nunc pro tunc or 'now for then' appeal." This can happen where a) there has been fraud; b) there has been a breakdown in the court's operations; or c) non-negligent circumstances relating to either the appellant or his attorney caused the briefly untimely appeal.

In the latter instance, there is generally a due process requirement for the court to conduct an evidentiary hearing to allow the appellant an opportunity to prove the existence of those circumstances. Here the court noted that it was "troubling" that the Occupant did not ask for a hearing and also that "this Court did not offer them an opportunity to make a record supporting their claims." The court said, however, that a hearing was not necessary because Occupant "failed to file a prompt application for relief."

The dissent would have granted Occupant a hearing to offter an explanation for the delay in asking for NPT relief, since the court did not mention this issue in its order directing en banc argument in the case.

domestic relations - notice - incarcerated persons

http://www.pabulletin.com/secure/data/vol36/36-34/1668.html

The amended official note to Rule 1930.4 (effective immediately) says that "service upon an incarcerated person in a domestic relations action must also include notice of any hearing in such action, and specific notice of the incarcerated individual's right to apply to the court for a writ of habeas corpus ad testificandum to enable him or her to participate in the hearing. The writ is available where an incarcerated individual wishes to testify as provided by statute or rule, as well as where the individual's testimony is sought by another. Vanaman v. Cowgill, 363 Pa. Super. 602, 526 A.2d 1226 (1987). See 23 Pa.C.S.A. § 4342(j) and Rule 1930.3. In determining whether a writ of habeas corpus ad testificandum should be issued, a court must weigh the factors set forth in Salemo v. Salemo, 381 Pa. Super. 632, 554 A.2d 563 (1989)."

Pennsylvania Bulletin of August 26, 2006

http://www.pabulletin.com/secure/data/vol36/36-34/index.html

courts - rules - custody, divorce, support - effective immediately
http://www.pabulletin.com/secure/data/vol36/36-34/1668.html
NB - The amended official note to Rule 1930.4 says that "service upon an incarcerated person in a domestic relations action must also include notice of any hearing in such action, and specific notice of the incarcerated individual's right to apply to the court for a writ of habeas corpus ad testificandum to enable him or her to participate in the hearing. The writ is available where an incarcerated individual wishes to testify as provided by statute or rule, as well as where the individual's testimony is sought by another. Vanaman v. Cowgill, 363 Pa. Super. 602, 526 A.2d 1226 (1987). See 23 Pa.C.S.A. § 4342(j) and Rule 1930.3. In determining whether a writ of habeas corpus ad testificandum should be issued, a court must weigh the factors set forth in Salemo v. Salemo, 381 Pa. Super. 632, 554 A.2d 563 (1989)."

courts - local rules
Beaver - electronic filing - http://www.pabulletin.com/secure/data/vol36/36-34/1669.html
Carbon - arbbitration http://www.pabulletin.com/secure/data/vol36/36-34/1672.html
Lackawanna - domestic cases http://www.pabulletin.com/secure/data/vol36/36-34/1674.html
Susquehanna - arbitration - http://www.pabulletin.com/secure/data/vol36/36-34/1679.html

welfare - disproportionate share payments - high MA hospitals
http://www.pabulletin.com/secure/data/vol36/36-34/1696.html

custody - grandparents' rights

Hiller v. Fausey - Pennsylvania Supreme Court - August 22, 2006

majority - http://www.aopc.org/OpPosting/Supreme/out/J-53-2005mo.pdf
concurrence - http://www.aopc.org/OpPosting/Supreme/out/J-53-2005co.pdf
dissent - http://www.aopc.org/OpPosting/Supreme/out/J-53-2005do.pdf

In a 6-1 decision, the Supreme Court denied a due process challenge to the constitutionality of the state statute, 23 Pa. C.S. 5311, governing partial custody or visitation to grandparents upon the death of the grandparent's child, i.e., the grandchild's parent. The statute gives a court the power to grant reasonable partial custody or visitation where granting custody would be in the child's best interest and would not interfere with the parent-child relationship.

Over the objection of the father, the trial court granted partial custody (one weekend per month and one week in the summer) to maternal grandmother (MGM) of an 8 y/o boy who had had a close and loving relationship with the MGM. The trial court determined that, absent a court order, the father would not provide the MGM any opportunity to see the child, with whom she'd been closely involved, especially during the last two year's of his mother's illness. The court found that the child and MGM "showed a great deal of affection toward one another and shared a very close relationship."

Applying the decision in Troxel v. Granville, 530 U.S. 57 (2000), the trial and appellate courts found that the MGM had rebutted the presumption that father's decision to strictly limit MGM's contact would be in the child's best interest and that such contact would not interfere with the parent-child relationship. Both Superior Court and the Supreme Court noted that the Pennsylvania statute was "significantly narrower" than the Washington statute, termed "breathtakingly broad" by the U.S. Supreme Court.

The state supreme court applied a strict scrutiny analysis, given the fundamental nature of a parent's right to make decisions about one's children, but held that the infringement allowed under sec. 5311 was narrowly tailored to serve a compelling state interest - protecting the health and emotional welfare of children under its parens patriae powers. Stating that such a benefit does not always accrue with contact by grandparents, the court refused to close its mind "to the possibility that in some instances a court may overturn even the [presumptively correct] decisions of a fit parent to exclude a grandparent from a grandchild's life, especially where the grandparent's child is deceased and the grandparent relationship is longstanding and significant to the grandchild."

The court refused to require grandparents to prove that not granting them partial custody would harm the child, saying that such a standard "would set the bar too high." The court said that due process demanded only what the statute required -- a finding that contact with the grandparent would be in the child's best interest and not significantly interfere in the parent-child relationship, even given of the "special weight" given to a parent's presumptively correct decision about custody.

The concurring justice urged "even greater forward movement" toward the recognition of the rights of children in custody cases and said that "it is time to regard the best interest of the child as a fundamental and momentous right," urging the Court "to provide some guidance toward ascertaining a child's fundamental best interests."

The dissent said that grandparents should have to prove that lack of contact with them would cause harm to the child.

employment - wages - attorney fees

Voracek v. Crown Castle USA - Superior Court - August 22, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a13009_06.pdf

The appellate court upheld the grant of attorney fees to plaintiff's counsel in a case where the trial court awarded wages, pursuant to a contractual severance agreement. Part of the case involved mutual mistake and a reformation of the parties actual written agreement, which had mistakenly omitted the severance agreement.

The court rejected the argument that "because the trial court's decision was based on a finding of mutual mistake and not on a violation of the [wage payment and collection law,] there is no basis for a statutory award of attorneys' fees." The court said that to "ensure that employees who are successful in their actions against an employer are made whole again, the statute mandates an award of attorneys' fees in addition to any judgment awarded to a plaintiff….43 P.S. sec. 260.9a(f)."

contracts - mutual mistake - reformation

Voracek v. Crown Castle USA - Superior Court - August 22, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a13009_06.pdf

Clear and convincing evidence showed a mutual mistake when, after extensive negotiations and agreement about the inclusion of a specific contract provision, the parties' final written agreement omitted that provision.

In spite of an "unambiguous integration clause providing that the agreement superseded any and all prior agreements," the trial court properly admitted extrinsic evidence pursuant to the "doctrine of mutual mistake of fact…[which] occurs when the written instrument fails to set forth the true agreement of the parties." That extrinsic evidence showed that the parties intended to have the omitted provision as part of the agreement.

A contract may be reformed in such circumstances if "(1) the misconception entered into the contemplation of both parties as a condition of assent, and (2) the parties can be placed in their former position regarding the subject matter of the contract."

The evidence supporting the application of the doctrine "must be clear and convincing."

UC - voluntary quit - elimination of health care benefits

Brunswick Hotel & Conference Center v. UCBR - Commonwealth Court - August 23, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/464CD06_8-23-06.pdf

Claimant had good cause to quit her job when employer eliminated health care benefits that had previously been provided to her. Claimant continued to work for 8 months after this happened, showing that she made a reasonable effort to preserve her job.

The court contrasted this case, involving a total elimination of health care benefits, with cases where the cost of health insurance had increased -- Steinberg v. UCBR, 624 A2d 237 (Pa. Cmwlth. 1993) and Chavez v. UCBR, 738 A2d 77 (Pa. Cmwlth. 1999). Even in those cases, benefits were granted where the increased cost was a "substantial unilateral change," noting however that there was "no talismanic percentage for determining a change so substantial as to warrant" good cause to quit.

mandamus - ministerial duty v. discretionary act

Chadwick v. Office of Coroner - Commonwealth Court - August 17, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/605CD05_8-17-06.pdf

Mother of deceased sued the county coroner to try to force him to change his conclusion about the cause of the death of plaintiff's brother, which the coroner had held was suicide. The court held that mandamus does not lie to order a public official to exercise his discretion in a particular way. It can generally only be used to compel the offiicail to perform acts which are required or obliged to be performed, and which do not involve an exercise of discretion. The court noted that a "refusal to exercise discretion may be addressed in a mandamus action" but that was fundamentally different from the case where discretion has been exercised and the plaintiff disagrees with the decision, i.e., how it was exercised.

disability - ALJ decision - findings and reasons

Woodson v. Barnhart - ED Pa. - August 14, 2006

http://www.paed.uscourts.gov/documents/opinions/06D1039P.pdf

The ALJ's SSD/SSI decision was upheld concerning a) rejection of the treating physician's opinion and b) the evaluation of the claimant's credibility, but the case was remanded because the ALJ "failed to specifically evaluate" the claimant's subjective complaints of "severe fatigue," about which the ALJ made only the general statements that the claimant's testimony about this was "exaggerated." The "ALJ is obligated to provide reasons for his...findings -- supported by record evidence -- that are sufficiendtly specific to show the ALJ's reasoning and the weight he gave to teh Plaintiff's statements...According, I must remand this case to the ALJ for reconsideration and a clear and logical statement of the facts supporting his conclusions."

employment - Title VII - retaliation

Walsh v. Irvin Stern's Costumes, Inc. - ED Pa. - August 15, 2006

http://www.paed.uscourts.gov/documents/opinions/06D1024P.pdf

The court granted plaintiff's motion to reinstate her Title VII retaliation claim, which was based on her allegation that the employer a) fired her 3 weeks after she told management that she was pregnant and b) had threatened to seek criminal charges against her unless she withdrew her discrimination claim.

The court noted that the 3d Circuit case law, on which its prior dismissal had been based, had been "specifically and squarely" overturned by the US Supreme Court, in Burlington Northern & Santa Fe Rwy. v. White, 548 U.S. ___, 126 S.Ct. 2405 (2006) which "articulated a new, less stringent test for Title VII retaliation cases."

The prior dismissal was based on Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), where the court held that in order to satisfy the "adverse employment action" element of a Title VII case, the employer's retaliatory action had to affect the plaintiff's current or future employment. This holding was specifically abrogated in Burlington Northern , where the court held that "a plaintiff need only show the employer's actions 'would have been materially adverse to a reasonable employee or job applicant.' " 126 S.Ct. at 2409.

Pennsylvania Bulletin of August 19, 2006

http://www.pabulletin.com/secure/data/vol36/36-33/index.html

I did not see anything of particular interest to the legal aid community in this edition of the Pennsylvania Bulletin -- but, to quote P. Sternberg, "just my opinion."

writs of prohibition - King's Bench - Pa. Supreme Court

Mayer v. Garman - Pa. Supreme Court - August 4, 2006

Majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-140-2006mo.pdf
Concurring - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-140-2006co.pdf

Exercising its "inherent King's Bench supervisory power over inferior tribunals," the state supreme court vacated the trial court's order directing that the assets of a non-party to a divorce case be frozen.

The non-party was the "paramour" of the defendant/husband divorce; she lived in Hong Kong. No original process was ever served on her. The lower court sua sponte ordered her joinder in the case, reciting an "overarching mandate…to 'effectuate economic justice.' "

The Supreme Court issued a writ of prohibition against the lower court, which it determined had acted ultra vires, without compliance with the joinder rules, Pa. RCP 2251-2255, and in violation of due process principles giving potential parties formal notice and an opportunity to object to joinder. The court held that that test to apply the writ -- which is to be used with "great caution and forbearance" -- had been satisfied: there was no adequate remedy at law, and the requested relief was necessary to "secure order and regularity in judicial proceedings."

appeals - preservation of issues

B.C. v. Penn Manor School District - Commonwealth Court - August 13, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1150CD05_8-15-06.pdf

"[W]hen an issue was not raised below, it will not be addresed for the first time in this court. Pa. R.A.P. 1551. To preserve an issue for review, a litigant must make a timely objection at the hearing before the lower tribunal....Furthermore, the Rules of Appellate Procedure require a petitioner to set forth the location in the record where the issue was raised and preserved below. See Pa. R.A.P. 2117(c) (requiring the statement of the case in an appellate brief to identify the place and manner in which the issues were raised and preserved below); and Pa. R.A.P. 2119(c) (requiring argument in an appellate brief to identify where the issues were raised below.)"

"commonwealth agency" - definition

Banacol Marketing Corp. v. Phila. Regional Port Authority et al. - Cmwlth. Court - Aug. 11, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/17CD06_8-11-06.pdf

Plaintiff/Appellant sued the Phila. Regional Port Authority (PRPA) in common pleas court, which sustained PRPA's preliminary objections to the court's jurisdiction, finding that PRPA was a "commonwealth agency" and that Plaintiff's case should have been filed with the Board of Claims, 62 Pa. C.S. sec. 1724(a)(3). Commonwealth Court affirmed.

The court said that a "commonwealth agency" -- for jurisdictional purposes -- is one which operates on a statewide basis and is predominantly controlled by the state. In this case, the PRPA was created by the General Assembly; its members are appointed by the Governor and the leaders of the General Assembly, and thus is a "commonwealth agency." By contrast, a "local agency" operates wthin a single county or municipality and is governed in large part by that local entity.

settlement agreements - existence/effect - dispute - hearing

Brannam v. Reedy - Commonwealth Court - August 14, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/2590CD05_8-14-06.pdf

A dispute about the existence or binding effect of a settlement agreement must be resolved by conducting an evidentiary hearing on the points in dispute. This is the case even where there is a written agreement signed by counsel, if it is alleged that counsel lacked authority to act. It was error for the lower court to have found "facts" based on the judge's personal experience rather than on the testimony of witnesses at a hearing, even where the judge claims "intimate knowlege" of the facts as a result of a prehearing conference.

employment - PHRC - settlement agreement - enforcement

Blue Comet Diner v. PHRC - Commonwealth Court - July 28, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/465CD05_7-28-06.pdf

In a 5-2 decision, the court held that a predetermination Settlement Agreement could not be enforced by the Pennsylvania Human Relations Commission without the PHRC having held a hearing and having made a finding that the employer had actually violated the PHRA, 43 P.S. 951 et seq.

The dissents argued that there was a valid regulatory procedure under 16 Pa. Code sec, 42.73 to cover this situation and that the majority's disposition would "adversely impact upon the Commission's ability to resolved discrimination complaints through conciliation and persuasion, " in addition to contravening the stated purposed of the statute. In addition, the dissents objected to the fact that the court had raised this issue sua sponte, arguing that it had been waived by the appellant, who had not raised it in proceedings below, and that the issue was not jurisdictional, citing Mechensky v. PHRC, 578 A.2d 589 (Pa. Cmwlth. 1990) and Reidel v. HRC of Reading, 739 A.2d 121 (Pa. 1999).

Reversed and remanded, http://www.aopc.org/OpPosting/Supreme/out/878mal2006.pdf - September 5, 2007, based on Reidel v. HRC of City of Reading, 739 A.2d 121 (Pa. 1999)

welfare - MH/MR- PFDS waiver

Gray v. DPW - Commonwealth Court - July 28, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/119CD06_7-28-06.pdf

The court upheld the denial of a mother's petition to pay her for her care of her 21-year-old moderately mentally retarded son under the Personal Family Direct Support (PFDS) Waiver Program.

The PFDS program was developed to enhance services to people with mental retardation living at home with their families or in their own homes, provided that, in the case of people over 18, there was no "qualified provider who is not a family member...available" to provide services or only at "an extraorginarily higher cost" than the fee negotiated with a family member.

The court held that there was substantial evidence to support DPW's finding that there were qualified non-family providers in the community capable to giving services to the son, at a reasonable cost.

Mother's claim that the regulation only applied to children under 18 was not considered, because it was only raised for the first time on appeal, and not during administrative proceedings.

custody - relocation - children's best interest

Fuehrer v. Fuehrer - Superior Court - August 2, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a19007_06.pdf

The Superior Court affirmed the grant of primary custody of the parents' two daughters, ages 6 and 9, to mother/appellee but reversed the trial court's allowance of mother's petition for relocation to the Netherlands.

Applying the Gruber factors set out in 583 A.2d 434 (Pa. Super. 1990), the court held that the proposed move to the Netherlands would only benefit the mother's potential love interest with a man she had met in an internet chat room. Although the trial court emphasized the mother's lack of good judgment, it did not consider whether the move would be in the children's best interest, ignoring the father's good relationship with the children and the fact that they were flourishing in their present environment. The court said that children who are very young need frequent contact with the non-custodial parent and that months without physical contact would disrupt the parent-child relationship.

The court contrasted the case of Goldfarb v. Goldfarb, 861 A2d 340, in which mother's petition to relocated to Israel was granted, since family had lived in Israel before, they would be returning to familiar culture, mother had extensive family support there, and 2 of 3 children had been born there.

contracts - forfeiture - subtantial performance

Atlantic LB, Inc. v. Vrbicek - Superior Court - August 4, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a21008_06.pdf

Given the terms of the lease in this case, the commercial tenant was held to be not in default and entitled to exercise an option to buy. The trial court "properly utilized the doctrine of substantal performance...to avoid an unacceptable forfeiture."

The lease had a "time is of the essense" clause, and the tenants were chronically late in paying rent over several extended periods. However, under terms of the lease, "nonpayment alone was insufficient...to constitute an automatic default." The lease had a specific term stating that continued failure to perform for 10 days after written notice of nonperformance was given was a default. In each of two instances, the tenants cured the rent defaults within the 10 days periods and no rent was owing at the time the landlord brought the case.

Although "Pennsylvania law permits forfeiture of a tenant's rights for non-payment of rent...[a] court should not enforce forfeiture 'when the contract has been carried out or its literal fulfillment has been prevented by oversight or uncontrollable circumstances." The "doctrine of substantial performance has been created as an instrument of justice intended to avoid forfeiture because of technical, inadvertent or unimportant questions....The doctrine is 'intended for the protection and relief of those who have faithfully and honestly endeavored to perform their contracts in all material and substantial particulars."

The court stressed that the doctrine was applicable in this case "because of the language of the agreement as written....[T]his decision is not intended to be used indiscriminately as authority in all commercial leases for nonpayment of sums due. To the contrary, we emphasise the importance of careful attention to how these agreements are drafted and to the terms of the agreements as drafted" -- noting again that in this case, default was defined as failure to cure within 10 days of notice of default.

fictitious names - capacity to sue

Stash and Sons v. New Hollard Credit Company - Superior Court - August 2, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s24042_06.pdf

"[T]hose who deal with an unregistered party and accept the benefits of business transactions, having full knowledge of the party's true identify notwithstanding the fictious name, are estopped to deny the party's capacity to sue...If such a person knows with who he is dealing and is not deceived, he cannot assert the lack of capacity to sue under the Fictitious Names Act (FNA)," 54 Pa. C.S. 331.

The FNA says that an entity which has failed to register its fictitious name "shall not be permitted to maintain any action in a tribunal" in Pennsylvania and that, before such an entity can institute a lawsuit, it must register the name and pay a fine. The court held that this provision was penal in nature and should not be extended beyond the purposes for which it was enacted -- a) to protect people giving credit in reliance on the fictitious name and b) to establish the identities of the people operating the business. In this case, it was clear that all of this information was known, thus estopping the appellant/defendant from claiming harm and contesting the appellee/plaintiff's capacity to sue.

Pennsylvania Bulletin of August 12, 2006

The link http://www.pabulletin.com/secure/data/vol36/36-32/index.html

- courts- appellate rules - proposed - interlocutory appeals as of right - PRAP 311
http://www.pabulletin.com/secure/data/vol36/36-32/1532.html

- courts - civil rules - proposed - foreclosure - mortgages on both personal/real property - UCC 9604(a) - http://www.pabulletin.com/secure/data/vol36/36-32/1533.html

- courts - civil rules - proposed - videotape depositions - Rule 4017.1
http://www.pabulletin.com/secure/data/vol36/36-32/1534.html

- Indpt. Reg. Review Commn. - notice of comments - child care facilities
http://www.pabulletin.com/secure/data/vol36/36-32/1558.html

Pennsylvania Bulletin of August 5, 2006

The link http://www.pabulletin.com/secure/data/vol36/36-31/index.html

- court rules - local - Philadelphia - transcripts http://www.pabulletin.com/secure/data/vol36/36-31/1486.html

- education - child care curriculum grants
http://www.pabulletin.com/secure/data/vol36/36-31/1498.html

- health - children- safe sleep promotion - mini-grants http://www.pabulletin.com/secure/data/vol36/36-31/1508.html

- Governor - directives - Directives Management System http://www.pabulletin.com/secure/data/vol36/36-31/1496.html

- PUC- passenger services and property/household goods carriers http://www.pabulletin.com/secure/data/vol36/36-31/1493.html

- PUC- biennial report concerning Chapter 14 http://www.pabulletin.com/secure/data/vol36/36-31/1527.html