Nawrocki v. Faulkner Ciocca Ford - ED Pa. - October 29, 2007
http://www.paed.uscourts.gov/documents/opinions/07D1296P.pdf
Under the facts of this case, Plaintiffs did not have a private cause of action under the Motor Vehicle Sales Finance Act (MVSFA), 68 P.S. sec. 601 et seq, for claims that a) the notice of repossession violated the MVSFA and b) the car dealer improperly applied for financing in the plaintiffs' name.
The "Pennsylvania Supreme Court has not ruled on whether the MVSFA creates a private right of action." However, in Witthoeft v. Kiskaddon, 733 A.2d 623, 616 (Pa. 1999), the Court "adopted a portion of the test from Cort v. Ash, 422 US 66, 78 (1975), to determine when a court may infer a private right of action under a statute"
Under the Witthoeft case, Pennsylvania courts consider whether
- plaintiff belongs to the class for whose special benefit the statute was enacted
- there is is an indication of any explicit or implicit legislative intent to create or deny such a remedy
- a private right of action would be consistent with the purpose of the legislative scheme.
The second of these "is the most important and [is] given the greatest weight."
The court noted that several sections of the MVSFA do specifically create private rights of action for their violation, citing examples. However, the court said that it could "not imply a private right of action in the entire MVSFA simply because the MVSFA contains provisions that the buyer can enforce." Such a reading would "ignore the difference between a statute that creates a private right of action and one that supplies an element of an existing cause of action. When a statute creates a private right of action, a plaintiff need only make out a violation of the statute to recover. On the other hand, when a statute supplies an element of a cause of action, the plaintiff must make out the violation of the statute and all of the other elements of the relevant cause of action before she can recover." (emphasis in original)
In this case, the court held that the violation of the sec. 623 notice provision supplied one element of a cause of action for the tort of conversion, i.e., interference with the plaintiff's use or possession of her car without her consent and "without lawful justification." (emphasis in original). However, "the MVSFA does not make a defective repossession notice in and of itself the subject of an implied cause of action."
There is no specific section of the MVSFA that covers an alleged application by a car dealer for financing in plaintiffs' names, without their knowledge or consent (even though such "behavior would likely violate the Fair Credit Reporting Act, which plaintiffs duly invoke.")
Wednesday, October 31, 2007
Tuesday, October 30, 2007
Consumer Protection Law - pleading - particularity
Nawrocki v. Faulkner Ciocca Ford - ED Pa. - Ocftober 29, 2007
http://www.paed.uscourts.gov/documents/opinions/07D1296P.pdf
Plaintiffs adequately pleaded their case with sufficient "heightened particularity" under the Pennsylvania Consumer Protection Law, 73 P.S. sec. 201-1 et seq., and F. R. Civ. 9(b), to withstand a Rule 12(b)(6) motion.
Tran v. Metropolitan Life Ins. Co., 408 F.3d 130, 140-1 (3d Cir. 2005), requires such a plaintiff to "make out the elements of common law fraud" -- which plaintiffs did in this case, when they "palpably alleged the necessary facts with far more particularity that the 'date, time or place" Rule 9(b) requires."
http://www.paed.uscourts.gov/documents/opinions/07D1296P.pdf
Plaintiffs adequately pleaded their case with sufficient "heightened particularity" under the Pennsylvania Consumer Protection Law, 73 P.S. sec. 201-1 et seq., and F. R. Civ. 9(b), to withstand a Rule 12(b)(6) motion.
Tran v. Metropolitan Life Ins. Co., 408 F.3d 130, 140-1 (3d Cir. 2005), requires such a plaintiff to "make out the elements of common law fraud" -- which plaintiffs did in this case, when they "palpably alleged the necessary facts with far more particularity that the 'date, time or place" Rule 9(b) requires."
Monday, October 29, 2007
damages/remedies - election of remedies; rescission - need for prompt action
Schwartz v. Rockey - Pennsylvania Supreme Court - October 17, 2007
majority http://www.aopc.org/OpPosting/Supreme/out/J-4A&B-2007mo.pdf
concurring/dissenting http://www.aopc.org/OpPosting/Supreme/out/J-4A&B-2007codo.pdf
election of remedies
Held, filing a complaint seeking contract-related damages (e.g., money damages) does not, by itself, foreclose a subsequent amendment seeking an inconsistent, equitable remedy (e.g., rescission), at least where it is alleged that the plaintiff lacked knowledge of material facts at the time of filing, and in the absence of demonstrated detrimental reliance by the opposing party. The court noted "confusing congeries of doctrines [which] have been lumped together under the election of remedies label." A majority of jurisdictions, including the federal courts, apply modern rules of pleading to permit the simultaneous pleading of inconsistent claims for relief.
rescission - need for prompt action
Held, the Superior Court should not have disturbed the trial court holding that buyers of real property "failed to pursue rescission with sufficient promptitude* to support an award of such remedy." Buyers effectively affirmed the contract by living in the house for 6 years and by not promptly seeking to rescind once they became aware of previously undisclosed water damage. Prompt action is a prerequisite to the remedy of rescission. Fichera v. Gording, 227 A.2d 642, 643-4 (Pa. 1967).
* Yes, it's in the dictionary.
majority http://www.aopc.org/OpPosting/Supreme/out/J-4A&B-2007mo.pdf
concurring/dissenting http://www.aopc.org/OpPosting/Supreme/out/J-4A&B-2007codo.pdf
election of remedies
Held, filing a complaint seeking contract-related damages (e.g., money damages) does not, by itself, foreclose a subsequent amendment seeking an inconsistent, equitable remedy (e.g., rescission), at least where it is alleged that the plaintiff lacked knowledge of material facts at the time of filing, and in the absence of demonstrated detrimental reliance by the opposing party. The court noted "confusing congeries of doctrines [which] have been lumped together under the election of remedies label." A majority of jurisdictions, including the federal courts, apply modern rules of pleading to permit the simultaneous pleading of inconsistent claims for relief.
rescission - need for prompt action
Held, the Superior Court should not have disturbed the trial court holding that buyers of real property "failed to pursue rescission with sufficient promptitude* to support an award of such remedy." Buyers effectively affirmed the contract by living in the house for 6 years and by not promptly seeking to rescind once they became aware of previously undisclosed water damage. Prompt action is a prerequisite to the remedy of rescission. Fichera v. Gording, 227 A.2d 642, 643-4 (Pa. 1967).
* Yes, it's in the dictionary.
consumer protection - treble damages - standard for award
Schwartz v. Rockey - Pennsylvania Supreme Court - October 17, 2007
majority http://www.aopc.org/OpPosting/Supreme/out/J-4A&B-2007mo.pdf
concurring/dissenting http://www.aopc.org/OpPosting/Supreme/out/J-4A&B-2007codo.pdf
Stating that it was "best to adhere as closely as possible to the plain language of the statute, which on "on its plan terms, does not provide any standard pursuant to which a trial court may award treble damages," the state supreme court held that the discretion of a trial court to award treble damages under sec. 9.2 of the state Consumer Protection Law, 73 P.S. sec. 201-9.2, "should not be closely constrained by the common-law requirement associated with the award of punitive damages" i.e., "outrageous and egregious conduct," which might include an "evil motive" or "reckless indifference to the rights of others."
The Court said that question was a "very close one." It contrasted this decision with that in Johnson v. Hyundai Motor America, 698 A.2d 631 (Pa. Super. 1997), where the court mentioned a "heightened standard for assessing the availability of treble damages" and said that courts should be guided by punitive damages cases.
The statute mentions only the trial court's "discretion," which the court said "is not limitless, as we believe that awards of treble damages may be reviewed by appellate courts for rationality, akin to appellate review of the discretionary aspect of equitable awards...." Trial courts "should focus on the presence or absence 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" Consumer Protection Law."
The chief justice dissented on this issue, stating that "the case law regarding the nature of punitive damages is well reasoned and evidences the common-law principle applied on Pennsylvania. The plain language of the statute does not expressly alter this principle. Thus, absent such express direction from the Legislature to the contrary, I believe that the UTPCPL was intended to preserve the requirement that an award of treble damages be predicated upon a punitive damage analysis."
majority http://www.aopc.org/OpPosting/Supreme/out/J-4A&B-2007mo.pdf
concurring/dissenting http://www.aopc.org/OpPosting/Supreme/out/J-4A&B-2007codo.pdf
Stating that it was "best to adhere as closely as possible to the plain language of the statute, which on "on its plan terms, does not provide any standard pursuant to which a trial court may award treble damages," the state supreme court held that the discretion of a trial court to award treble damages under sec. 9.2 of the state Consumer Protection Law, 73 P.S. sec. 201-9.2, "should not be closely constrained by the common-law requirement associated with the award of punitive damages" i.e., "outrageous and egregious conduct," which might include an "evil motive" or "reckless indifference to the rights of others."
The Court said that question was a "very close one." It contrasted this decision with that in Johnson v. Hyundai Motor America, 698 A.2d 631 (Pa. Super. 1997), where the court mentioned a "heightened standard for assessing the availability of treble damages" and said that courts should be guided by punitive damages cases.
The statute mentions only the trial court's "discretion," which the court said "is not limitless, as we believe that awards of treble damages may be reviewed by appellate courts for rationality, akin to appellate review of the discretionary aspect of equitable awards...." Trial courts "should focus on the presence or absence 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" Consumer Protection Law."
The chief justice dissented on this issue, stating that "the case law regarding the nature of punitive damages is well reasoned and evidences the common-law principle applied on Pennsylvania. The plain language of the statute does not expressly alter this principle. Thus, absent such express direction from the Legislature to the contrary, I believe that the UTPCPL was intended to preserve the requirement that an award of treble damages be predicated upon a punitive damage analysis."
Wednesday, October 24, 2007
real property - title insurance
Rood v. Commonwealth Land Title Insurance Company - Superior Court - October 18, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a24045_07.pdf
Title insurance policy held not to cover claim for defective on-site sewage system. The purpose of title insurance is to protect from loss arising from defects in the title which the buyer acquires. Such a contract is construed strictly in favor of the buyer. The court rejected coverage for the defective sewer system, in spite of the argument that the title was rendered unmarketable by this defect, whose disclosure might cause a reduction in price. The court looked to decisions from other states in reaching its decision, in which it found a "dearth of authorities dealing with this precise question." Ultimately, the court rejected the argument that sought to equate an abandoned septic tank with a "defect, lien or encumbrance affecting title to the property." It held that plaintiff's argument confused economic lack of marketability with title marketability. Summary judgment was properly granted to the defendant.
http://www.courts.state.pa.us/OpPosting/Superior/out/a24045_07.pdf
Title insurance policy held not to cover claim for defective on-site sewage system. The purpose of title insurance is to protect from loss arising from defects in the title which the buyer acquires. Such a contract is construed strictly in favor of the buyer. The court rejected coverage for the defective sewer system, in spite of the argument that the title was rendered unmarketable by this defect, whose disclosure might cause a reduction in price. The court looked to decisions from other states in reaching its decision, in which it found a "dearth of authorities dealing with this precise question." Ultimately, the court rejected the argument that sought to equate an abandoned septic tank with a "defect, lien or encumbrance affecting title to the property." It held that plaintiff's argument confused economic lack of marketability with title marketability. Summary judgment was properly granted to the defendant.
corporations - piercing the corporate veil
Fletcher-Harlee Corp. v. Szymanski and David Concrete Corp. - Superior Court - October 15, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a20038_07.pdf
It was appropriate to pierce defendant's corporate veil where defendant was the sole shareholder, director, and officer of several inter-related corporations. Citing Lumax Industries v. Aultman, 669 A2d 893 (Pa. 1995), the court reviewed the factors it considers in such cases, including whther
- the corporation is undercapitalized
- corporate formalities were followed
- relevant records were kept
- there was intermingling of personal and corporate funds
The court noted that there is no clear and well-settled rule about this doctrine in Pennsylvania. It relied heavily on Lumax and The Village at Camelback v. Carr, 538 A.2d 528 (Pa. Super. 1988), in which it held, inter alia, that a plaintiff does not have to show fraud in order for the doctrine to apply.
http://www.courts.state.pa.us/OpPosting/Superior/out/a20038_07.pdf
It was appropriate to pierce defendant's corporate veil where defendant was the sole shareholder, director, and officer of several inter-related corporations. Citing Lumax Industries v. Aultman, 669 A2d 893 (Pa. 1995), the court reviewed the factors it considers in such cases, including whther
- the corporation is undercapitalized
- corporate formalities were followed
- relevant records were kept
- there was intermingling of personal and corporate funds
The court noted that there is no clear and well-settled rule about this doctrine in Pennsylvania. It relied heavily on Lumax and The Village at Camelback v. Carr, 538 A.2d 528 (Pa. Super. 1988), in which it held, inter alia, that a plaintiff does not have to show fraud in order for the doctrine to apply.
Tuesday, October 16, 2007
insurance - bad faith statute, 43 Pa. C.S. 8371 - statute of limitations - common law duty of good faith/fair dealing
Ash v. Continental Insurance Company - Pennsylvania Supreme Court - October 11, 2007
http://www.aopc.org/OpPosting/Supreme/out/J-7-2006mo.pdf
State bad-faith insurance statute, 42 Pa. C.S. 8371, held to resemble tort more than contract and thus come under the two year statute of limitations in 42 Pa. C.S. 5524.
The court rejected plaintiff's argument that because a bad-faith claim involves both tort and contract concepts, like a consumer-protection claim, Gabriel v. O'Hara, 534 A.2d 488 (Pa. Super. 1987), it should come under the catch-all six-year statute of limitations.
The opinion contains an extended discussion of the duty of good faith and fair dealing, which is most often associated with contract claims. The court held that an action for violation of the statutory duty in sec. 8371 is "distinct from the common law cause of action for breach of the contractual duty of good faith" and distinguished the contract cases involving that duty.
The court said that "Pennsylvania courts have held that the key difference between tort actions and contract actions is this: ' [t]ort actions lie for breaches imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals....With this distinction in mind, we note the legislature apparently determined the protections afforded by the Unfair Insurance Practices Act [40 P.S. 1171.1 et seq.] were insufficient to curtail bad faith acts by insurers and that it was in the public interest to enact sec. 8371 as an additional protection....Therefore, the duty under sec. 8371 is one imposed by law as a matter of social policy rather than one imposed by mutual consensus, and an action to recover damages for a breach of that duty derives primarily from the law of torts."
http://www.aopc.org/OpPosting/Supreme/out/J-7-2006mo.pdf
State bad-faith insurance statute, 42 Pa. C.S. 8371, held to resemble tort more than contract and thus come under the two year statute of limitations in 42 Pa. C.S. 5524.
The court rejected plaintiff's argument that because a bad-faith claim involves both tort and contract concepts, like a consumer-protection claim, Gabriel v. O'Hara, 534 A.2d 488 (Pa. Super. 1987), it should come under the catch-all six-year statute of limitations.
The opinion contains an extended discussion of the duty of good faith and fair dealing, which is most often associated with contract claims. The court held that an action for violation of the statutory duty in sec. 8371 is "distinct from the common law cause of action for breach of the contractual duty of good faith" and distinguished the contract cases involving that duty.
The court said that "Pennsylvania courts have held that the key difference between tort actions and contract actions is this: ' [t]ort actions lie for breaches imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals....With this distinction in mind, we note the legislature apparently determined the protections afforded by the Unfair Insurance Practices Act [40 P.S. 1171.1 et seq.] were insufficient to curtail bad faith acts by insurers and that it was in the public interest to enact sec. 8371 as an additional protection....Therefore, the duty under sec. 8371 is one imposed by law as a matter of social policy rather than one imposed by mutual consensus, and an action to recover damages for a breach of that duty derives primarily from the law of torts."
Friday, October 12, 2007
settlement agreements - enforcement
Thomas v. University of Pennsylvania - ED Pa. - October 2, 2007
http://www.paed.uscourts.gov/documents/opinions/07D1204P.pdf
Held, the parties entered into a binding settlement agreement of plaintiff's race discrimination case.
At a settlement conference, the parties agreed that defendant would pay plaintiff, a former employee, a certain amount. The court then dismissed the case. However, a dispute arose when the defendant added a no-rehire provision to the final written settlement agreement. Plaintiff objected to this provision and asked the court to vacate its dismissal of the case. Defendant eventually agreed to withdraw the offending provision. "The issue is whether the University's agreement to delete the language that [plaintiff' found unacceptable constituted an acceptance of an offer to settle the case" --a position advanced by the university, which sought enforcement of the agreement.
Settlement agreement are governed by ordinary principles of contract law, including the need for a meeting of the minds on all terms. An agreement to settle a lawsuit, voluntarily entered into, is binding on the parties, whether or not made in the present of the court, and even in the absence of a writing. Such an agreement is binding even where one party had a change of heart between the time s/he agreed to the terms of the settlement and when those terms were reduced to writing.
When plaintiff told the court that she would accept a certain financial settlement provided that there was no bar to her being rehired, she made a definite and specific offer to settle. When the University accepted, plaintiff became bound by the terms of her offer. Once the offer was accepted, the case was settled. A settlement is at bottom a contract, and it is basic contract law that an offer cannot be withdrawn after it has been accepted.
http://www.paed.uscourts.gov/documents/opinions/07D1204P.pdf
Held, the parties entered into a binding settlement agreement of plaintiff's race discrimination case.
At a settlement conference, the parties agreed that defendant would pay plaintiff, a former employee, a certain amount. The court then dismissed the case. However, a dispute arose when the defendant added a no-rehire provision to the final written settlement agreement. Plaintiff objected to this provision and asked the court to vacate its dismissal of the case. Defendant eventually agreed to withdraw the offending provision. "The issue is whether the University's agreement to delete the language that [plaintiff' found unacceptable constituted an acceptance of an offer to settle the case" --a position advanced by the university, which sought enforcement of the agreement.
Settlement agreement are governed by ordinary principles of contract law, including the need for a meeting of the minds on all terms. An agreement to settle a lawsuit, voluntarily entered into, is binding on the parties, whether or not made in the present of the court, and even in the absence of a writing. Such an agreement is binding even where one party had a change of heart between the time s/he agreed to the terms of the settlement and when those terms were reduced to writing.
When plaintiff told the court that she would accept a certain financial settlement provided that there was no bar to her being rehired, she made a definite and specific offer to settle. When the University accepted, plaintiff became bound by the terms of her offer. Once the offer was accepted, the case was settled. A settlement is at bottom a contract, and it is basic contract law that an offer cannot be withdrawn after it has been accepted.
contracts - sales - venue - approval/acceptance of credit
84 Lumber Co. v. Fish Hatchery, L.P. et al. - Superior Court - Ocftober 1, 2007
http://www.aopc.org/OpPosting/Superior/out/a23003_07.pdf
Plaintiff-appellant is a building supplier who sued defendants-appellees for breach of contract, alleging non-payment for lumber and building materials purchased at plaintiff's retail location in Northampton County. Plaintiff sued in Washington County, the location of its corporate headquarters and the place where defendants' credit application was approved. Defendants were located in Lehigh County, as was the residential construction project for which the materials were purchased.
Defendants filed preliminary objections alleging improper venue, and the lower court transferred the case to Northampton County, which was a) the location of the lumber yard where defendants bought the materials, b) the location where defendants applied for credit, and c) the location where defendants made payments to plaintiff.
Noting that trial courts have "considerable discretion" in change-of-venue cases, the appellate court interpreted Rule 1006 (venue for civil actions generally) and Rule 2130 (venue where partnerships are parties), and sustained the change of venue to the Northampton County, where it held that the "transaction" had taken place and "not merely some part of the transaction...." The court said that the civil rules do not permit a lawsuit to be instituted in any country where some facet of a complex transaction -- such as the approval of the buyer's credit application -- has occurred.
The court said that there was no "substantial relationship" between Washington County and the parties' dispute which would justify venue there. It was at the retail location in Northampton County "where the offer to purchase goods was accepted by Appellant in its delivery of such good for payment." [sic] The court rejected the contention that approval of credit amounted to the actual acceptance of the contract, since there was no suggestion that the approval was necessary to form the contract.
http://www.aopc.org/OpPosting/Superior/out/a23003_07.pdf
Plaintiff-appellant is a building supplier who sued defendants-appellees for breach of contract, alleging non-payment for lumber and building materials purchased at plaintiff's retail location in Northampton County. Plaintiff sued in Washington County, the location of its corporate headquarters and the place where defendants' credit application was approved. Defendants were located in Lehigh County, as was the residential construction project for which the materials were purchased.
Defendants filed preliminary objections alleging improper venue, and the lower court transferred the case to Northampton County, which was a) the location of the lumber yard where defendants bought the materials, b) the location where defendants applied for credit, and c) the location where defendants made payments to plaintiff.
Noting that trial courts have "considerable discretion" in change-of-venue cases, the appellate court interpreted Rule 1006 (venue for civil actions generally) and Rule 2130 (venue where partnerships are parties), and sustained the change of venue to the Northampton County, where it held that the "transaction" had taken place and "not merely some part of the transaction...." The court said that the civil rules do not permit a lawsuit to be instituted in any country where some facet of a complex transaction -- such as the approval of the buyer's credit application -- has occurred.
The court said that there was no "substantial relationship" between Washington County and the parties' dispute which would justify venue there. It was at the retail location in Northampton County "where the offer to purchase goods was accepted by Appellant in its delivery of such good for payment." [sic] The court rejected the contention that approval of credit amounted to the actual acceptance of the contract, since there was no suggestion that the approval was necessary to form the contract.
Tuesday, October 09, 2007
declaratory judgment - ripeness - challenge to admin. regulations
Township of Derry v. Dept. of Labor and Industry - Pa. Supreme Court - September 26, 2007
http://www.aopc.org/OpPosting/Supreme/out/J-116-2007mo.pdf
Request for declaratory relief challenging DLI regulations concerning the definition of "state-owned building" was held to be ripe, overruling the Commonwealth Court's sua sponte dismissal on ripeness grounds.
The Supreme Court held that
- the issues were adequately developed
- the parties would suffer hardship if review were delayed
- there was an actual and ongoing controversy
- the issues were concrete and adequately developed for judicial review
The Court also noted that evidence in an administrative enforcement proceeding would be different from the evidence relevant to the plaintiff's challenge. "The enforcement process has not been accepted as a substitute for declaratory judgment review in...circumstances involving substantial challenges to state administrative regulations....[I]ndeed, the concept of pre-enforcement review has expressly been approved."
http://www.aopc.org/OpPosting/Supreme/out/J-116-2007mo.pdf
Request for declaratory relief challenging DLI regulations concerning the definition of "state-owned building" was held to be ripe, overruling the Commonwealth Court's sua sponte dismissal on ripeness grounds.
The Supreme Court held that
- the issues were adequately developed
- the parties would suffer hardship if review were delayed
- there was an actual and ongoing controversy
- the issues were concrete and adequately developed for judicial review
The Court also noted that evidence in an administrative enforcement proceeding would be different from the evidence relevant to the plaintiff's challenge. "The enforcement process has not been accepted as a substitute for declaratory judgment review in...circumstances involving substantial challenges to state administrative regulations....[I]ndeed, the concept of pre-enforcement review has expressly been approved."
Friday, October 05, 2007
UC - willful misconduct - single standard
Dept. of Corrections v. UCBR - Pa. Supreme Court - October 4, 2007
http://www.aopc.org/OpPosting/Supreme/out/272MAL2007sd.pdf
The court reversed a Commonwealth Court decision denying benefits to a prison guard who did not report rumors of a planned attack on an inmate and did not not intervene when he heard the inmate being beaten, because of the officer's fear of reprisals and fear for his own safety. The lower court said that such fears did not constitute good cause for his actions. The court said that its conscience was shocked by the Board's conclusion "that a corrections officer who refuses to report a threat of violence against an inmate and refuses to render aid to an inmate being beaten could use fear for his own personal safety as good cause justification for his refusal to render aid....We can do nothing but express our outrage" that the DOC's Office of Professional Responsibility was aware of and condoned claimant's conduct and that of others in his situation.
The Supreme Court reversed and remanded for reconsideration in light of its decisions in Navickas v. UCBR, 787 A.2d 284 (Pa. 2001) and Grieb v. UCBR, 827 A.2d 422 (Pa. 2003), holding that the UC Act "sets for a single governing standard of willful misconduct and rejecting the idea that a higher standard may apply based upon the type or nature of the employment involved."
The Commonwealth Court decision is reported at 919 A/2d 316 (Pa. Cmwlth. 2007) http://www.courts.state.pa.us/OpPosting/CWealth/out/1205CD06_2-28-07.pdf. The lower court cited it decision in Williams v. UCBR, 648 A.2d 1321 (Pa. Cmwlth. 1994), the court noted its prior holdings that a "corrections officer, like law enforcement officials, occupy positions of great responsibility and trust, and thus, must adhere to demanding standards, which are higher than those applied to many other professions."
A concurring opinion in the lower court noted that the statement was in direct conflict with the Supreme Court's decision in Navickas v. UCBR, 778 A.2d 284, 290-1 (Pa. 2001), where the court rejected a higher standard of care for a health care worker, stating that that is a "question...of policy...not posed by the Unemployment Compensation Law we are called upon to construe. The Act sets for a single governing standard of willful misconduct, one that does not draw distinctions based upon the type or nature of the employee involved."
http://www.aopc.org/OpPosting/Supreme/out/272MAL2007sd.pdf
The court reversed a Commonwealth Court decision denying benefits to a prison guard who did not report rumors of a planned attack on an inmate and did not not intervene when he heard the inmate being beaten, because of the officer's fear of reprisals and fear for his own safety. The lower court said that such fears did not constitute good cause for his actions. The court said that its conscience was shocked by the Board's conclusion "that a corrections officer who refuses to report a threat of violence against an inmate and refuses to render aid to an inmate being beaten could use fear for his own personal safety as good cause justification for his refusal to render aid....We can do nothing but express our outrage" that the DOC's Office of Professional Responsibility was aware of and condoned claimant's conduct and that of others in his situation.
The Supreme Court reversed and remanded for reconsideration in light of its decisions in Navickas v. UCBR, 787 A.2d 284 (Pa. 2001) and Grieb v. UCBR, 827 A.2d 422 (Pa. 2003), holding that the UC Act "sets for a single governing standard of willful misconduct and rejecting the idea that a higher standard may apply based upon the type or nature of the employment involved."
The Commonwealth Court decision is reported at 919 A/2d 316 (Pa. Cmwlth. 2007) http://www.courts.state.pa.us/OpPosting/CWealth/out/1205CD06_2-28-07.pdf. The lower court cited it decision in Williams v. UCBR, 648 A.2d 1321 (Pa. Cmwlth. 1994), the court noted its prior holdings that a "corrections officer, like law enforcement officials, occupy positions of great responsibility and trust, and thus, must adhere to demanding standards, which are higher than those applied to many other professions."
A concurring opinion in the lower court noted that the statement was in direct conflict with the Supreme Court's decision in Navickas v. UCBR, 778 A.2d 284, 290-1 (Pa. 2001), where the court rejected a higher standard of care for a health care worker, stating that that is a "question...of policy...not posed by the Unemployment Compensation Law we are called upon to construe. The Act sets for a single governing standard of willful misconduct, one that does not draw distinctions based upon the type or nature of the employee involved."
Thursday, October 04, 2007
IFP - denial - frivolous action
Bailey v. Wakefield - Commonwealth Court - October 4, 2007
http://www.aopc.org/OpPosting/CWealth/out/1084CD07_10-4-07.pdf
Three prisoners sought a writ of mandamus against officers of a state correctional institution in the county court where the SCI is located. The trial court denied the plaintiffs' IFP petition on the grounds that the action was frivilous, pursuant to Pa. R.C.P. 240(j) http://www.pacode.com/secure/data/231/chapter200/s240.html.
A "frivolous" action is one that lacks an arguable basis either in law or in fact. A complaint is frivolous if it does not set forth a valud cause of action. The plaintiffs' complaint did allege a valid cause of action, claiming violations of state and federal constitutions and prison regulations and policies.
However, the complaint is still frivolous because the form of action - mandamus - cannot address the constitutional rights that they pleaded. Mandamus is only appropriate where the right to be enforced is very clear. Here, the defendants had a lot of discretion, because of the need for orderly administration of the prison. Mandamus is not maintainable in the circumstances.
"Because there is no way that [plaintiffs] can be successful, the trial court properly denied the petition to proceed in forma pauperis and dismissed the action seeking a writ of mandamus as frivolous."
http://www.aopc.org/OpPosting/CWealth/out/1084CD07_10-4-07.pdf
Three prisoners sought a writ of mandamus against officers of a state correctional institution in the county court where the SCI is located. The trial court denied the plaintiffs' IFP petition on the grounds that the action was frivilous, pursuant to Pa. R.C.P. 240(j) http://www.pacode.com/secure/data/231/chapter200/s240.html.
A "frivolous" action is one that lacks an arguable basis either in law or in fact. A complaint is frivolous if it does not set forth a valud cause of action. The plaintiffs' complaint did allege a valid cause of action, claiming violations of state and federal constitutions and prison regulations and policies.
However, the complaint is still frivolous because the form of action - mandamus - cannot address the constitutional rights that they pleaded. Mandamus is only appropriate where the right to be enforced is very clear. Here, the defendants had a lot of discretion, because of the need for orderly administration of the prison. Mandamus is not maintainable in the circumstances.
"Because there is no way that [plaintiffs] can be successful, the trial court properly denied the petition to proceed in forma pauperis and dismissed the action seeking a writ of mandamus as frivolous."
Wednesday, October 03, 2007
bankruptcy - conversion - bad faith
In re Piccoli - ED Pa. - September 27, 2007
http://www.paed.uscourts.gov/documents/opinions/07D1167P.pdf
Denial of bankrupt's motion to convert Ch. 7 to Ch. 13 case upheld by district court, because of finding that the bankrupt was acting in bad faith, based largely on pre-petition conduct.
Bankrupt (B) transferred her interest in her home to her daughter and son-in-law only 16 months before filing, for no consideration. She also understated the value of her home and misrepresented the value of her unsecured claims. The court applied the factors in the case of In re Pakuris, 262 B.R. (Bankr. ED Pa. 2001) and In re Lilley, 91 F.3d 491 (3d Cir., 1996).
The court found that, under a fact-intensive inquiry --
- B's motion for conversion was to avoid fair payment to creditors
- conversion would be waste of judicial resources, since there would probably be re-conversion to Ch. 7
- home equity would give more to creditors in Ch. 7 than Ch. 13 case
- there is no absolute right to convert Ch. 7 to Ch. 13 - Marrama v. Citizens Bank - 127 S.Ct. 1105 (2007)
- B's conduct was "atypical" and not consistent with that of an honest and forthright but unfortunate debtor
- the timing in her case was "suspicious"
- B showed a lack of candor
http://www.paed.uscourts.gov/documents/opinions/07D1167P.pdf
Denial of bankrupt's motion to convert Ch. 7 to Ch. 13 case upheld by district court, because of finding that the bankrupt was acting in bad faith, based largely on pre-petition conduct.
Bankrupt (B) transferred her interest in her home to her daughter and son-in-law only 16 months before filing, for no consideration. She also understated the value of her home and misrepresented the value of her unsecured claims. The court applied the factors in the case of In re Pakuris, 262 B.R. (Bankr. ED Pa. 2001) and In re Lilley, 91 F.3d 491 (3d Cir., 1996).
The court found that, under a fact-intensive inquiry --
- B's motion for conversion was to avoid fair payment to creditors
- conversion would be waste of judicial resources, since there would probably be re-conversion to Ch. 7
- home equity would give more to creditors in Ch. 7 than Ch. 13 case
- there is no absolute right to convert Ch. 7 to Ch. 13 - Marrama v. Citizens Bank - 127 S.Ct. 1105 (2007)
- B's conduct was "atypical" and not consistent with that of an honest and forthright but unfortunate debtor
- the timing in her case was "suspicious"
- B showed a lack of candor
Monday, October 01, 2007
discovery - pre-complaint discovery - new state court rules
order http://www.aopc.org/OpPosting/Supreme/out/483civ.5.pdf
rule http://www.aopc.org/OpPosting/Supreme/out/483civ.5attch.pdf
There are a number of new, related state court rules about pre-complaint discovery, but the primary one is Rule 4003.8:
"A plaintiff may obtain pre-complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party."
rule http://www.aopc.org/OpPosting/Supreme/out/483civ.5attch.pdf
There are a number of new, related state court rules about pre-complaint discovery, but the primary one is Rule 4003.8:
"A plaintiff may obtain pre-complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party."
Subscribe to:
Posts (Atom)