consumer - state UDAP claims - federal court - removal

Byrd v. Car and SUV Outlet, et al. - ED Pa. - December 29, 2008

http://www.paed.uscourts.gov/documents/opinions/08D1533P.pdf

Plaintiff sued defendant, from which he bought a used car, for various alleged state-law causes of actions, including one under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, which claim alleged several distinct violations, including assertions that Defendants violated the UTPCPLby breaching two federal statutes, the Truth in Lending Act and the Equal Credit Opportunity Act. Defendants sought to remove the case to federal court.

The court refused the motion to remove, holding that it did not have jurisdiction, since plaintiff had sought relief only under state law, not federal law, which were "merely two theories on which Plaintiff plans to proceed to establish a state law UTPCPL violation."

The court also held that it could still have jurisdiction if “the vindication of [Plaintiff’s] right[s] under state law necessarily turned on some construction of federal law” but held that “the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction. The federal issue must be “an essential one in the forefront of the case and not collateral, peripheral, or remote”

The federal issues in this case were held to be "not essential to establishing Plaintiff’s right to relief....The TILA and ECOA violations are merely two theories, in addition to the various theories based on state law, that Plaintiff has asserted to establish his right to relief under the UTPCPL. This is insufficient, however, to establish federal jurisdiction."

UC - willful misconduct - employer disciplinary policy - lack of Board findings

Jones v. UCBR - Cmwlth. Court - December 31, 2008 - unpublished memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1097CD08_12-31-08.pdf

Claimant was terminated for several alleged incidents of no-call/no-show.

inconsistent Board findings - The court found that "[b]ecause the Board's findings are inconsistent with the evidence, this matter must be remanded for clarification...and a new decision."

no finding on employer compliance with its own disciplinary policy - Claimant argued that the employer did not comply with its own disciplinary policy and that therefore "she should be allowed to return to work for Employer to comply with the policy." The court said that "[w]here an employer promulgates a specific disciplinary system, a discharge under that system may not be deemed to be for willful misconduct if the employer fails to follow the specified process. PMA Reinsurance Corp. v. UCBR, 558 A.2d 623 (Pa. Cmwlth. 1989).

The Board made no findings on whether Employer followed its policy by giving warnings to Claimant after the alleged occurrences of her no calls/no shows, and the Board did not mention the issue in its decision. This issue therefore must be addressed upon remand of this matter. Accordingly, the Board's order is vacated and this matter is remanded to the Board for a clarification of its inconsistent findings of fact and for additional fact finding, if necessary, as to whether Employer complied with its written policy requiring that it provide employees with verbal and written warnings in the case of no call/no show occurrences."

mortgage foreclosure - abuse of process - elements/pleading

Birchall v. Countrywide Home Loans - ED Pa. - December 23, 2008

http://www.paed.uscourts.gov/documents/opinions/08D1517P.pdf

Claim for abuse of process dismissed for failure to allege sufficient facts. The bare allegation was that there was an abuse of process.

"To establish a claim for abuse of process, a plaintiff must show that the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed, (3) resulting in harm to the plaintiff. Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa. Super. 2002)."

pre-emption - cigarette warnings - FTC and state consumer protection laws

Altria Group v. Good - US Supreme Court - December 15, 2008

http://www.supremecourtus.gov/opinions/08pdf/07-562.pdf

From the court's syllabus....

Respondents, smokers of petitioners’ "light" cigarettes, filed suit, alleging that petitioners violated the Maine Unfair Trade Practices Act(MUTPA) by fraudulently advertising that their "light" cigarettes delivered less tar and nicotine than regular brands. The District Court granted summary judgment for petitioners, finding the state-lawclaim pre-empted by the Federal Cigarette Labeling and Advertising Act (Labeling Act). The First Circuit reversed, holding that the Labeling Act neither expressly nor impliedly pre-empts respondents’ fraud claim.

Held: Neither the Labeling Act’s pre-emption provision nor the Federal Trade Commission’s actions in this field pre-empt respondents’ statelaw fraud claim. Pp. 5–20.

(a) Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose. When the text of an expresspre-emption clause is susceptible of more than one plausible reading,courts ordinarily "accept the reading that disfavors pre-emption." The LabelingAct’s stated purposes are to inform the public of the health risks ofsmoking while protecting commerce and the economy from the ill effects of nonuniform requirements to the extent consistent with the first goal. Although fidelity to these purposes does not demand thepre-emption of state fraud rules, the principal question here is whether that result is nevertheless required by 15 U. S. C. §1334(b), which provides that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to theadvertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." Pp. 5–9.

(b) Respondents’ claim is not expressly pre-empted by §1334(b). As determined in several Supreme Court cases, the phrase "based onsmoking and health" modifies the state-law rule at issue rather than a particular application of that rule. The plurality in one case concluded that "the phrase ‘based on smoking and health’ fairly but narrowly construed" did not pre-empt the plaintiff’s commonlaw claim that cigarette manufacturers had fraudulently misrepresented and concealed a material fact, because the claim alleged a violation of a duty not to deceive—a duty that is not "based on" smokingand health. Respondents here also allege a violation of the duty not to deceive as codified in the MUTPA, which, like the common-law duty in Cipollone, has nothing to do with smoking and health. Respondents’ claim is not analogous to the "warning neutralization" claim found to be pre-empted in Cipollone. Reilly is consistent with Cipollone’s analysis. This Court disagrees with petitioners’ alternative argument that the express pre-emption framework of Cipollone and Reilly should be rejected.

(c) Various Federal Trade Commission decisions with respect to statements of tar and nicotine content do not impliedly pre-empt state deceptive practices rules like the MUTPA. Pp. 17–20. 501 F. 3d 29, affirmed and remanded.

STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined.

PFA - abuse - fear of imminent serious bodily injury; indecent assault

Thompson v. Thompson - Superior Court - December 16, 2008

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56023_08.pdf

Actual physical harm is not a prerequisite for the entry of a PFA order; the victim need only be in reasonable fear of imminent serious bodily injury. Fonner, 731 A.2d at 163. Mother establish that by evidence that

- Father forcibly grabbed Mother's breasts and crotch and yelled obscenities at their sons when they tried to intervene on her behalf.
- On one occasion Father came home drunk early in the morning, got into a fight with the older son, and then tried to hit him with his car.
- Father drinks and abuses cocaine, that she is afraid of Father, and that she fears for her children when they are in his custody.
- Father sideswiped eldest son with his car as son walked to school, because he was afraid that father was high on cocaine
- Father pushed and shoved youngest son and regularly threatened to hurt him

The court considered the sufficiency of the evidence in light of McCance v. McCance, 908 A.2d 905 (Pa. Super. 2006), where the Superior Court concluded that the evidence was sufficient to establish reasonable fear of imminent serious bodily injury where plaintiff testified that defendant stood in front of her car while she was in it and yelled obscenities and threats, that the defendant struck her car with such force that repairs were needed, and that the defendant had a drinking problem, anger issues and had been physically violent with other people in the past.

The evidence also establishes that Father has grabbed Mother in a sexual way when she arrived at his house to pick the children up, by grabbing her breasts and crotch while making lascivious comments such as, "You know you like it." This was indecent assault under 18 Pa. C.S.A. § 3126(a). "Accordingly, the evidence supports the PFA court’s determination."

UC - petition for review - preservation of issues

Patla v. UCBR - Cmwlth. Court - December 18, 2008

http://www.courts.state.pa.us/OpPosting/Cwealth/out/823CD08_12-18-08.pdf

The court granted the UCBR's motion to strike the appeal for failure of the petition for review to state appellant's objections with specificity, as required by Pa. R.A.P. 1513. The petition "merely that the determinations in the UCBR’s order were “not supported by the record,” and “that there is no legal basis for the UCBR’s denial of benefits.”

The court said that those objections did not "fairly embrace the willful misconduct issue, and failed to identify specific findings of fact that are allegedly unsupported by substantial evidence. Pearson v. UCBR, 954 A.2d 1260, 1263 (Pa. Cmwlth. 2008)."

To determine if a petition for review states a claimant’s objections with sufficient specificity, the court said that it looks to Pa. R.A.P. (Rule) 1513(d), which requires that a petition for review contain “a general statement of the objections to the order or other determination.” The general statement “will be deemed to include everysubsidiary question fairly comprised therein.” Rule 1513(d)(6).

However, more than a bare restatement of the scope of review is required, as the court held in Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005). In Deal, the court dismissed the petition for review because it stated only that the Board "was guilty of an error of law in deciding to reverse the decision of the Referee and deny benefits, and that there was a "a lack of substantial evidence to support the decision of the Board." It "did not contain any statement that fairly embraced the legal issue in the case and did not identify specific findings that were allegedly unsupported by substantial evidence; thus, the petition contained no issues for review."

"In the instant case, Claimant’s petition suffers from the same insufficiencies as the petition in Deal. Claimant’s Claimant’s Petition for Review offers no statement that this Court could deem “fairly embraces” willful misconduct, nor does it set forth what findings of fact were unsupported by the evidence. Accordingly, although developed in Claimant’s brief, his arguments regarding the issues will not be considered by this Court on appeal. See Deal."

In addition the claimant did not address any of the issues raised in the UCBR’s motion to strike the petition for review, despite the court’s direction to do so.

UC- failure to attend hearing - remand - good cause

Scott v. UCBR - Cmwlth. Court - December 18, 2008 - unreported memorandum opinion

http://www.courts.state.pa.us/OpPosting/Cwealth/out/985CD08_12-18-08.pdf

Held, that where good cause for a remand does not appear on the face of a request by a party who did not attend the initial hearing, it is error for the Board to grant a remand under 34 Pa. Code §101.24. In this case, claimant said that she did not attend because she couldn't find the location of the hearing, even though she had received proper and timely written notice.

The regulation provides: (a) If a party who did not attend a scheduled hearing subsequently gives written notice, which is received by the tribunal prior to the release of a decision, and it is determined by the tribunal that his failure to attend the hearing was for reasons which constitute “proper cause,” the case shall be reopened. Requests for reopening, whether made to the referee or Board, shall be in writing; shall give the reasons believed to constitute “proper cause” for not appearing …. (c) A request for reopening the hearing which is not received before the decision was mailed, but is received or postmarked on or before the 15th day after the decision of the referee was mailed to the parties shall constitute a request for further appeal to the Board and a reopening of the hearing, and the Board will rule upon the request. If the request for reopening is …. denied, the Board will append to the record the request, supporting material and the ruling on the request, so that it shall be subject to review in connection with any further appeal to the Commonwealth Court.

The Board has discretion regarding requests for remands to supplement a hearing record. Harrison v. UCBR, 457 A.2d 238 (Pa. Cmwlth. 1983). In reviewing a decision of the Board to deny a request for a remand, the court will reverse the Board’s decision only if the Board has abused its discretion. Department of Auditor General v. UCBR, 484 A.2d 829 (Pa. Cmwlth. 1984).

The usual purpose of a remand is to allow the submission of pertinent evidence that a party did not offer at the initial hearing because it was not available at that time. Brady v. UCBR, 539 A.2d 936 (Pa. Cmwlth. 1988). Thus, in Flores v. UCBR, 686 A.2d 66 (Pa. Cmwlth. 1996), the court held that the Board did not abuse its discretion in denying a request for a remand for the submission of evidence that had been available at the time of the original hearing. See also Fisher v. UCBR, 696 A.2d 895 (Pa. Cmwlth. 1997).

In Sanders v. UCBR, 524 A.2d 1031 (Pa. Cmwlth. 1987), the court held that the Board had abused its discretion in remanding a case for a second hearing where the employer had not offered good cause as to why it did not appear at the initial hearing. The Court held that it was not “necessary to remand a case to the Board for findings of good cause where, as here, the employer’s explanations on for its failure to appear do not--on their face--rise to the level of ‘proper cause’ as a matter of law.” Sanders, 524 A.2d at 1033 (citation omitted). See also, Ortiz v. UCBR, 481 A.2d 1383 (Pa. Cmwlth. 1984) (Board should decide case on the merits, without remand, where no proper cause for a remand.)

In this case, the reasoning in Sanders applies, despite the harsh result. If one assumes that claimant’s description of her efforts is accurate, the court held that she could have taken more reliable measures to ensure that she knew where she needed to be and how to get there. In this case, had she called the referee’s office and obtained information, she may have been able to avoid the mistake she made in her effort to appear at the hearing. Claimant did not take the necessary steps to protect her own interests. The Board did not abuse its discretion in denying claimant’s request to reopen the case and remand to the referee for additional testimony

Social Security - standard of proof

http://edocket.access.gpo.gov/2008/pdf/E8-30056.pdf

SUMMARY: We are amending our rules to clarify that we apply the preponderance of the evidence standard when we make determinations and decisions at all levels of our administrative review process.

These rules do not change our policy that the Appeals Council applies the substantial evidence standard when it reviews a decision by an administrative law judge (ALJ) to determine whether to grant a request for review.

We are also adding definitions of the terms ‘‘substantial evidence’’ and ‘‘preponderance of the evidence’’ for use in applying these rules.

DATES: These final rules are effective on January 20, 2009.

Note:
This rule change highlights the difference between standard of proof and standard of review. It is consistent with state law on the issues. “The degree of proof required to establish a case before an administrative tribunal is the same degree of proof used in most civil proceedings, i.e., a preponderance of the evidence.” Samuel J. Lansberry Inc v. PUC, 578 A.2d 600, 602 (Pa. Cmwlth. 1990). Accord, Steadman v. SEC, 450 U.S. 91 (1981) (discussing the proper standard of proof and the confusion between standard of proof and standard of review.

The proper standard of proof can be a constitutional matter and involve balancing of competing interests. See, e.g., Addington v. Texas, 441 U.S. 323 (1979); In Re Winship, 397 U.S. 357 (1970). In a Child Protective Services Law case, J.S. v. DPW, 596 A.2d 1114, 1116 n. 2 (Pa. 1991), the court suggested that the proper standard of proof in administrative hearings under that statute was “clear and convincing,” because the fundamental right to reputation under Article I, sec. 1, of the Pa. Constitution was at stake. See also, A.Y. v. DPW, 641 A.2d 1148, 1152, 1153-4 (discussing the importance of right to reputation). This is also the standard in welfare cases where fraud is being charged, 55 Pa. Code 275.31.

administrative law - commissions - powers

Deoria v. State Athletic Commn. - Cmwlth. Court - December 8, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1266CD08_12-8-08.pdf

A commission has the status set out in the Administrative Code of 1929, 71 P.S. §§51 - 732. As a statutorily created agency of the Commonwealth, a commission has only those powers expressly conferred upon it by statute or those powers which are necessarily implied from its express powers. DeMarco v. Department of Health, 397 A.2d 61 (Pa. Cmwlth. 1979) (Administrative agencies, being creatures of the legislature, are vested only with those powers conferred by the statute or such as are necessarily implied from a grant of such powers; where authority is conferred on such an extrajudicial body, the legislative grant of power to act in any particular case must be clear.); Human Relations Commission v. St. Joe Minerals Corp., 476 Pa. 302, 382 A.2d 731 (1978) (The power and authority to be exercised by administrative commissions must be conferred by legislative language clear and unmistakable. A doubtful power does not exist.). An agency must act within the strict and exact limits as statutorily defined. Id.

real property - tax sale - redemption - timely petition

U.S. Bank Natl. Assn. v. Parker - Superior Court - December 8, 2008

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56038_08.pdf

Upon payment of all the necessary costs and fees, the owner of any property sold under tax or municipal claim may redeem the property at anytime within nine months of acknowledgement of the sheriff’s deed. 53 Pa. C. S. § 5293(a).

It is undisputed that the sheriff’s deed was acknowledged on March 19, 2007. Thus, Appellant had until December 19, 2007, in order to file her petition to redeem. Unfortunately for Appellant, she filed her petition on December 24, 2007, i.e., five days late.

employment - public - suspension - due process

Dee v. Borough of Dunmore - 3d Cir. - December 5, 2008

http://www.ca3.uscourts.gov/opinarch/071720p.pdf

Public employee (fire fighter) had property and liberty interests in non-suspension without just cause under 42 USC 1983 and 53 P.S. § 46190. Case remanded for determination of whether there were exigent circumstances which justified suspension without prior notice and hearing.

UC- vol. quit - voluntary retirement

Degosky v. UCBR - Cmwlth. Court - December 4, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1129CD08_12-4-08.pdf

Subjective, unsubstantiated fear of a layoff, plus offer of voluntary retirement package did not establish good cause to quit a job. In Staub v. UCBR, 673 A.2d 434, 437 (Pa. Cmwlth. 1996), the court held that speculation pertaining to an employer’s financial condition and future layoffs, however disconcerting, does not establish the requisite necessitous and compelling cause. Instead, the relevant inquiry is whether surrounding circumstances at the time an employee voluntarily leaves indicate a likelihood that fears about his or her job security will otherwise materialize, that serious impending threats to the employee’s job will be realized and that the employee’s belief that his job is imminently threatened is well founded. Moreover, while the fact that an employer has made an offer of retirement or other incentive package is important, it is not dispositive of the issue. There must be some additional circumstances existing at the time the employee accepts the offer, e.g., a lack of suitable continuing work, either currently or at a discernible point in time, together with statements or actions of the employer showing a likelihood of imminent layoff.

Here, Claimant's fear of loss of his job was "only a subjectively perceived possibility." He was "never informed that his job was in imminent danger and his supervisors informed him only that they did not know the status of his job, and further, there was evidence that continuing work was available to him. Other than his speculation that his job was in imminent danger because some of his work had been moved to Texas, there is no evidence that would prove that his concerns would be realized.

UC - willful misconduct - rule violation - mistreatment of fellow workers

Torres-Williams v. UCBR - Cmwlth. Court - December 4, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/910CD08_12-4-08.pdf

Employer rule required workers to treat each other with "courtesy, honor, and respect." On December 31, 2007, Employer issued a warning to Claimant for improper verbal communications to patients and co-workers. On January 9, 2008, Claimant asked a question of a co-worker. When the co-worker indicated that she did not know the answer to Claimant’s question, Claimant responded “Jesus Christ, what do you know?” Employer fired claimant for that behavior the next day. Employer produced evidence as hearing of other similar incidents as well.

Claimant alleged that she did not have any bad intent when she made the remark and that it is not considered offensive in some cultures. The court said that she did not produce any authority "for her position that the lack of offensive intent constitutes good cause in a willful misconduct case. The sole questions the Board, and this Court, can consider are: (1) whether the statement is offensive, (2) whether the employee intended to make the statement and (3) whether the statement violated a rule of the employer. See Williams v. UCBR, 926 A.2d 568 (Pa. Cmwlth.), petition for allowance of appeal denied, 596 Pa. 712, 940 A.2d 368 (2007). Again, the evidence of record supports the Board’s findings and ultimate conclusion herein."

UC - appeal - petition for review - preservation/waiver of issues

Torres-Williams v. UCBR - Cmwlth. Court - December 4, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/910CD08_12-4-08.pdf

The court rejected the Board's attempt to quash or strike the petition for review based on claims that (1) the petition does not seek to challenge the basis of the Board’s decision, i.e., Claimant’s conduct constitutes willful misconduct, and (2) the petition for review does not seek to challenge matters over which this Court can exercise its powers of review, i.e., the Board’s factual findings, legal errors or constitutional violations.

The court said that it "has recently indicated that we may 'decline to consider issues a claimant fails to raise with sufficient specificity in his petition for review.” Pearson v. UCBR, 954 A.2d 1260, 1263 (Pa. Cmwlth. 2008). We have also dismissed a claimant’s petition for review where the claimant only asserted vague issues of error on the part of the Board or simply asserted that the Board’s decision was not supported by substantial evidence. See Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005).

A claimant must submit a statement in his or her petition for review that is more substantial than merely a recitation of our standard of review. Admittedly, the grounds for reversal as stated by Claimant in her petition for review are somewhat lacking. However, Claimant does allege in her petition that she is challenging the Board’s decision based upon “minimum grounds of evidence.” We interpret this statement as a challenge to the Board’s findings and its conclusion that Employer met its burden of establishing willful misconduct. Claimant’s argument herein is similar to the arguments raised by the claimant in Pearson, who alleged that the Board had failed to “review all the facts” and that “this case is not strong enough,” which we interpreted as a challenge to the employer’s burden of proof and which we relied upon in rejecting the application of the waiver doctrine. Pearson, 954 A.2d at 1263.12

child abuse - expungement - photos as evidence of severe pain - perpetrator criminally negligent

S.T. v. DPW - Cmwlth Court - December 4, 2008 (order directing publication of Sept. 24th opinion)

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/91CD08_12-4-08.pdf

Denial of expungment affirmed

photographic evidence showed "severe pain"
Photographic evidence held to be sufficient proof of severe pain. "A finding that a child has suffered severe pain does not need to be supported by witness testimony or medical evidence. D.N. v. DPW, 562 A.2d 433 (Pa. Cmwlth. 1989). In fact, this Court has concluded that photographs alone of a child’s injuries may support a finding that the injuries caused the child severe pain. City of Philadelphia, Office of Children, Youth and Family Services v. DPW, 767 A.2d 10 (Pa. Cmwlth. 2001).

The ALJ said the the photots "show bruises over much of the child’s body. The picture of the extensive bruising from the child’s abdomen to his groin is especially graphic. As such, the pictures depict the result of a savage beating that was far removed from any acceptable corporal punishment." From the photos one could "reasonably infer that the injuries caused severe pain."

petitioner was one of the "perpetrators" of the abuse
Petitioner/mother was held to be a perpetrator of the abuse, even thought it was her boyfriend who inflicted most of it. The " standard to be used when evaluating a perpetrator’s actions in administering corporal punishment is whether or not her actions equals that of criminal negligence. P.R. v. DPW, 569 Pa. 123, 801 A.2d 478 (2002)."

A person is criminal negligent "with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. 18 Pa. C.S. § 302(b)(4).

Petitioner, by her own testimony, decided to abdicate her parental responsibilities regarding discipline to her boyfriend. She then also chose not to be present in the room where she knew her son was being hit with a belt. Upon hearing her son cry, she entered his room. Once in the room, Petitioner did not suggest that she made any attempt to determine whether the punishment her son was receiving was appropriate. She did not raise any questions as to the force being used to hit the child or the location of the blows on his body. Instead, Petitioner’s only concern upon entering the room was to further punish S.P. for violating her “no crying while taking a beating” rule. After hitting S.P. herself, she chose to return the belt to her boyfriend so he could continue the punishment. She then left the room, again choosing not to monitor the situation. As such, Petitioner’s acts and omissions equal a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

consumer - arbitration clause - bank depositor agreement

Baylis v. Wachovia Bank, ED Pa., November 25, 2008

http://www.paed.uscourts.gov/documents/opinions/08D1397P.pdf

In customer's suit against a bank for allowing a wrongful attachment of her account, the court granted the bank's motion to compel arbitration, because of a depositor agreement that the bank customer said she never received. The court found that the custody "agreed to the terms of the depositor agreement, including the arbitration of disputes, because she continued to use her accounts." The customer said that she never got the depositor agreement and therefore could not have entered into a contract with the bank. She also argued that the agreement was a contract of adhesion and thus unenforceable.

A depositor agreement was allegedly mailed to the customer in 2003. The agreement included the following: 25. Arbitration of Disputes/Waiver of Jury Trial and Participation in Class Actions. If either you or we request, any irresolvable dispute or claim concerning your account or your relationship to us will be decided by binding arbitration under the expedited procedures of the Commercial Financial Disputes Arbitration Rules of the American Arbitration Association (AAA), and Title 9 of the US Code.

proof of mailing, presumption of receipt - The court accepted the affidavit of mailing of a 3rd party company which had a contract with the bank to mail notices to depositors. The court said that the "affidavit credibly recites that the affiant's company...was retained in 2003 to mail notices to bank depositors... [and] stated he found plaintiff's name in the database used to generate the mailing. The contents of the mailing included a letter to depositors and the new Deposit Agreement." The court accepted this as creating a presumption of receipt under F.R.Civ.P 6(e).

The court rejected depositor's attempt to overcome the presumption, distinguishing Carnathan v. Ohio National Life Insurance Co., No. 06-999, 2008WL 2578919, at *5 (M.D. Pa. June 26, 2008), which held the plaintiff in that case had offered sufficient evidence to overcome the presumption of receipt when he detailed his business’s handling of incoming mail and invoices. " The court distinguished Carnathan "both by the quantum of evidence offered to rebut the presumption and by the rights at stake. In Carnathan, the court found only the plaintiff had offered sufficient evidence to preserve the issue for trial. Id. If the Carnathan court had granted summary judgment, the plaintiff would have lost a disability policy for which he had diligently paid for 13 years....In this case, Baylis has offered less evidence of non-receipt to overcome the presumption and she retains all of her rights to be made whole in arbitration. For that reason, I find Baylis received the 2003 mailing of the depositor agreement including Paragraph 25 compelling arbitration."

not a contract of adhesion - Citing 3rd Circuit law, the court said that a "contract is “not unconscionable merely because the parties to it are unequal in bargaining position.” Alexander v. Anthony Int’l, L.P., 341 F.3d 256, 265 (3d Cir. 2003). The dominant party must use its position to impose “terms that unreasonably favor one party to which the disfavored party does not truly assent.” Id. The Third Circuit held an arbitration clause is not unconscionable, even in a contract of adhesion, because “plaintiffs who sign valid arbitration agreements . . . retain the full range of . . . substantive rights.” Gay v. CreditInform, 511 F.3d 369, 391-92 (3d Cir. 2007) (holding a depositor to the terms incorporated by reference on a signature card). A consumer who objects to the terms of a contract of adhesion “certainly could have decided to forego obtaining [the bank’s] services.” Id. at 391 n.15.

Baylis’s contract with Wachovia is not unconscionable and she could have terminated her agreement with Wachovia had she objected to the arbitration clause. Because I find Baylis received the depositor agreement and entered into the contract by continuing to use her account, I conclude Baylis agreed to arbitrate any dispute with Wachovia. I will grant Wachovia’s Motion to Compel Arbitration.

federal courts - 11th Amendment - SEPTA - FLSA claims

Cooper et al. v. SEPTA - 3d Cir. - November 26, 2008

http://www.ca3.uscourts.gov/opinarch/071522p.pdf

SEPTA not entitled to 11th Amendment immunity for plaintiffs' FLSA claims for wages for pre-safety inspections.

issue preclusion - UC referee decision has no preclusive effect in wrongful discharge case

Gonzalez v. AMR, American Airlines - 3d Circuit - November 26, 2008

http://www.ca3.uscourts.gov/opinarch/065161p.pdf

A UC claimant lost a referee hearing and took no further appeal. He then sued under the state wrongful discharge statute, and the employer moved to dismiss on issue preclusion grounds.

There is a four-prong test for issue preclusion, including whether the issue determined in the prior action the same as that in the subsequent action.

In this case, there was no preclusive effect since, the issue in the UC case - willful misconduct - was not the same as the issues involved in the employee's cause of action under the state wrongful discharge statute.

admin. law - adequate findings - remand

Resource Staff, Inc. v. UCBR - Cmwlth. Court - November 25, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/779CD08_11-25-08.pdf

The court ordered a remand of this UC self-employment case, because of the UCBR's failure to "address all of the factual issues that are essential to the legal determination of Claimant's eligibility for benefits. "We recognize that the record contains ample testimony and other evidence that would support additional, necessary findings; however, it is for the UCBR, and not this court, to provide findings of fact that are sufficiently specific" to decide the legal issues in the case.

UC - self-employment

Resource Staff, Inc. v. UCBR - Cmwlth. Court - November 25, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/779CD08_11-25-08.pdf

This case was remanded because of the UCBR's failure to "address all of the factual issues that are essential to the legal determination of Claimant's eligibility for benefits " and the issue of whether claimant was an employee or independent contractor.
In its opinion the court noted the following:

- A determination regarding the existence of an employer/employee relationship is a question of law that depends upon the unique facts of each case. Danielle Viktor, Ltd. v. DLI, Bureau of Tax Operations, 586 Pa. 196, 892 A.2d 781 (2006).

- 43 P.S. §753(l)(2)(B) establishes a presumption that an individual earning wages for services rendered is an employee, as opposed to an independent contractor, and it also allows a putative employer to overcome that presumption by showing that: (a) the individual was free from control and direction in the performance of his work; and (b) in the performance of his services, the individual was customarily engaged in an independently established business or occupation. Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee.

- The issue of control of the putative employer "must be based on the totality of circumstances" and involves "many factors, such as: whether there was a fixed rate of remuneration; whether taxes were deducted from the claimant’s pay; whether the presumed employer supplied equipment and/or training; whether the presumed employer set the time and location for the work; whether the presumed employer had the right to monitor the claimant’s work and review his performance; and the requirements and demands of the presumed employer. No single factor is controlling."

ripeness - delay in court review

Philips Bros. Electrical Contractors v. Turnpike Commission - November 24, 2008 - Cmwlth. Court

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/318CD08_11-24-08.pdf

Held, that there was an adequately developed record and sufficiently concrete contest to rule on prospective bidder's protest filed in anticipation of solicitation of bids. The case was thus ripe for review by court.

The doctrine of ripeness arises out of a judicial concern not to become involved in abstract disagreements of administrative policies. Texas Keystone, Inc. v. DCNR, 851 A.2d 228 (Pa. Cmwlth. 2004). The doctrine insists on a concrete contest, where there is a final agency action so that the courts can properly exercise their function. Id. Court rulings applying the ripeness doctrine are premised on policies of sound jurisprudence; courts should not give answers to academic questions, render advisory opinions, or make decisions based on assertions of hypothetical events that might occur in the future. Phila. Entm’t & Dev. Partners, L.P. v. City of Phila., 594 Pa. 468, 937 A.2d 385 (2007). Township of Derry v. Pa. Dep’t of Labor & Industry, 593 Pa. 480, 482, 932 A.2d 56, 57-58 (2007).

In deciding whether the doctrine of ripeness bars our consideration of a declaratory judgment action, we consider “whether the issues are adequately developed for judicial review and what hardships the parties will suffer if review is delayed.” Alaica v. Ridge, 784 A.2d 837, 842 (Pa. Cmwlth. 2001)...The factors we consider under our “adequately developed” inquiry include: whether the claim involves uncertain and contingent events that may not occur as anticipated or at all; the amount of fact finding required to resolve the issue; and whether the parties to the action are sufficiently adverse. Id. Under the “hardship” analysis, we may address the merits even if the case is not as fully developed as we would like, if refusal to do so would place a demonstrable hardship on the party. Id.

However, the court held that there was no "requisite harm occasioned by delay in review...." The harms alleged pertained to the merits of the case and not to anything caused by delayed review. The "Prospective Bidder suffers no demonstrable hardship if review is delayed until the time frame set forth in the statute....[The statute] provides a complete remedy upon timely review" and the court saw "no demonstrable harm to the parties if review is delayed."

federal courts - private right of action - No Child Left Behind

Newark Parents Assn. v. Newark Public Schools - 3d Circuit - November 20, 2008

http://www.ca3.uscourts.gov/opinarch/074002p.pdf

In a case of "first impression in the federal courts," the 3d Circuit affirmed a decision concluding that Congress did not confer on individuals an enforceable right of action under the No Child Left Behind Act (“NCLBA” or the “Act”), 20 U.S.C. § 6301 et seq., and 42 U.S.C. § 1983.

The court dismissed an action by parents against the school system, alleging that because the Newark public school system failed to live up to its obligations under certain provisions of the Act, appellants are entitled to privately enforce those provisions.

UC - willful misconduct - bank employee

Stezzi v. UCBR - Cmwlth. Court - Novembwer 20, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/913CD08_11-20-08.pdf

Claimant, a bank tell/manager, was held to be guilty of willful misconduct for putting four night deposit bags in a waste basket, in violation of employer procedures about processing money bags, and causing a monetary loss to employer of about $6275.00.

The court found "no merit in Claimant’s contention that the Board held her to a higher standard of conduct in violation of Grieb v. UCBR, 573 Pa. 594, 827 A.2d 422 (2003), that she was held to a higher standard than a management employee who must inspect teller areas for items of value left unprotected at the end of the day.

Contrary to Claimant’s assertion, the Board’s statement simply recognizes every employer may rightfully expect its employees will not place bags of money in trash cans. The statement represents an alternate legal theory for its decision to deny benefits. See Tongel v. UCBR, 501 A.2d 716 (Pa. Cmwlth. 1985) (work rule violation need not be shown where the behavior standard is obvious, and the employee's conduct is so inimical to the employer's best interests that discharge is a natural result).

The court rejected tha argument that "the Board’s conclusion that her conduct fell below the standards of behavior an employer may rightfully expect of its employees is ludicrous because her trash can was in a secured area.....It does not matter the general area may have been secure. Employer has specific rules in place for handling night deposit bags, which Claimant admittedly violated."

The court has "repeatedly held a bank employee’s failure to follow an employer’s procedure may constitute willful misconduct so as to disqualify the employee from receiving benefits. See Fusaro v. UCBR, 483 A.2d 1013 (Pa. Cmwlth. 1984) (teller discharged for intentionally failing to follow employer’s check cashing policies ineligible for benefits); Adolphus v. UCBR, 471 A.2d 152 (Pa. Cmwlth. 1984) (teller discharged for intentionally failing to follow check cashing, money order, and cash counting procedures ineligible for benefits); Schmutz v. UCBR, 459 A.2d 1378 (Pa. Cmwlth. 1983) (teller discharged for intentionally failing to enter all transactions into computer in violation of bank procedures ineligible for benefits).

UC - credibility; fact-finding; refusal to obey employer directive

Penn-Delco Schoot District v. UCBR - Cmwlth. Court - November 17, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/537CD08_11-17-08.pdf

1) The UCBR is the ultimate arbiter of credibility and fact-finding, citing Peak v. UCBR, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985). and Treon v. UCBR, 499 Pa. 455, 453 A.2d 960 (1982)

2) "[E]xcessive absenteeism, when properly reported and justified, is not willful misconduct, and illness is a proper justification. See Sprague v. UCBR, 647 A.2d 675, 680 (Pa. Cmwlth. 1994) (six properly reported absences based on illness did not constitute willful misconduct); Tri-Corp v. UCBR, 432 A.2d 1158, 1159–60 (Pa. Cmwlth. 1981) (properly reported two week leave for illness did not constitute willful misconduct).

3) “Where an employee is discharged for refusing or failing to follow an employer’s directive, both the reasonableness of the demand and the reasonableness of the employee's refusal must be examined.” Dougherty v. UCBR, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).

Where the action of the employee is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. UCBR, 450 A.2d 305 (Pa. Cmwlth. 1982). “In other words, if there was ‘good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.” Id. at 308.

Here, it is undisputed that Employer scheduled a mandatory meeting with Claimant, and Claimant did not attend....The Board determined Employer’s mandatory meeting directive was unreasonable in light of Claimant’s medical documentation which had not yet released her to return to work. The Board also concluded Claimant had good cause to refuse Employer’s unreasonable request.

The Board’s determinations are supported by substantial evidence. Accordingly, we affirm the Board’s conclusion that Claimant’s failure to attend the mandatory meeting did not constitute willful misconduct. See Thompson v. UCBR, 723 A.2d 743, 744 (Pa. Cmwlth. 1999) (finding claimant’s illness to be good cause for violating employer rule requiring absent employees to find replacement workers); Kindrew v. UCBR, 388 A.2d 801, 802–03 (Pa. Cmwlth. 1978) (finding an employer’s requirement that claimant attend work or face dismissal unreasonable if claimant were ill).

UC- appeal - timeliness

Carson Helicopters v. UCBR - Cmwlth. Court - November 14, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/253CD08_11-14-08.pdf

Employer should have been granted permission to appeal nunc pro tunc where the referee decision was erroneously dated 5 days prior to the date of the actual referee. Both dates were listed on the Referee Decision. In addition, the Board should have accepted the employer's hearsay testimony at the hearing, because it was corroborated by official documents - the referee decision and envelope in which it was mailed.

Moreover, under any state of facts, it is uncontroverted that the Board received Employer’s appeal before the statutory 15-day deadline had expired. "The Board’s conduct in this manner was not only sloppy but shocking in its disregard of its statutory responsibilities."

UC - vol. quit - sexual harassment

Willow Valley Retirement Community v. UCBR - Cmwlth. Court - 11-12-08 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/188CD08_11-12-08.pdf

Claimant testified that the ER vice-president/COO told her that she "needed to show more emotion and use the feminine side of her personality in order to improve her business relationships." This evidence was unchallenged by the employer.

The court held that these comments "are sexually discriminatory and degrading on their face. Claimant reasonably understood his comments to mean that she should be less strong and play up her sexuality in the performance of her job." The comments "went beyond conduct that must be tolerated in a work place and produced circumstances which would compel a reasonable person to terminate employment."

Claimant acted reasonably in resigning, without going through regular complaint channels. She "believed that there was no recourse to remedy the situation," since the vice president/COO was the second highest person in the organization.

Her attempt to rescind her resignation after the employer took steps to replace her is irrelevant, because this was a voluntary quit with cause of a necessitous and compelling reason. Because "Claimant has demonstrated circumstances which produced real and substantial pressure to terminate employment, Claimant only needed to show that she made a reasonable attempt to preserve her employment relationship or show that such action was futile to remain eligible for benefits."

real property - tax sale - notice

Popple v. Luzerne Co. Tax Claim Bureau - Cmwlth. Court - November 12, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2224CD07_11-12-08.pdf

Former owners (F/O) objected to tax sale nearly four years after it took place. The court held that due process was satisfied and F/Os were "personally served" and had actual notice of tax sale under 72 P.S. §5860.602 where

- the notice was sent to the "care of" address listed on the deed and
- the address was the same as two businesses (including a realty co.) which they owned
- was signed for by a person with the same last name, as their agent, who had many times signed for mail for the F/Os

"[A]ctual notice of a pending tax sale waives strict compliance with statutory notice require-ments, and technical deficiencies in those notice requirements do not invalidate a tax sale." Stanford-Gale v. Tax Claim Bureau, 816 A.2d 1214, 1217 (Pa. Cmwlth. 2003) "[A]ctual notice is such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put him upon inquiry." Sabbeth v. Tax Claim Bureau, 714 A.2d 514, 517 (Pa. Cmwlth. 1998).

Here, the court considered the "totality of the circumstances," including that that"Bureau sent notice to the address for the grantees indicated on the deed, and it was signed for by someone with the same last name who was permitted by the Post Office to receive certified mail at this post office box, who indicated his capacity as 'Agent' and who signed for certified mail addressed to the [F/Os] on other occasions. As a result, the Court concludes that the Bureau followed common sense business practices and that the [former owners] had implied actual notice...."

mortgage - particular debt v. open-ended; rules of prof. conduct do not create cause of action

Weiss & Associates v. Tulloch - Superior Court - October 30, 2008

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56033_08.pdf

Plaintiff law firm took several mortgages to secure payment of attorney fees by defendant. Plaintiff got a portion of the proceeds on two properties, then foreclosed on a third for alleged ongoing liability for attorney fees by defendants.

Held, the mortgage on the third property was not an open-ended one but a "formal documents of a specific character that should be strictly construed" to cover payments of a motrgage that covered only a specific advance of funds and nor more. Here, neither than note nor the mortgage indicated coverage of future attorney fees.

Judgment for plaintiff vacated and case remanded for entry of judgment for defendant.

Defendant's claim that plaintiff's violation of the rules of professional conduct, concerning conflicts of interest, was rejected. The rules address grounds for disciplinary action against attorneys and are not substantive law. A violation of the rules does not create a cause of action.

Home Improvement Consumer Protection Act (HICPA) - summary

Summary of Home Improvement Consumer Protection Act (HICPA)
Act 132 of 2008; Act of October 17, 2008- SB 100, PN 2484 - effective July 1, 2009


A. § 2 - Definitions – highlights
• Covers repair, replacement, demolition, construction, painting, HVAC, etc.
• Protects only private residences
• Protects only primary residence, if owner has three or more residences
• Protects only owner or those authorized to act on owner’s behalf
• Total cash price must be more than $500
• New home construction not covered


B. § 3 - Contractor Registration with Bureau of Consumer Protection
• Registration required before doing any work or holding out as “contractor”
• Public access to registration information – toll-free number
• No HICPA licenses can be granted to licensees under the Secondary Mortgage Loan Act, 7 P.S. §6601 et seq., or the Mortgage Banker/Brokers and Consumer Equity Protection Act, 63 P.S. §456.101 et seq.


C. § 4 - Registration information
Contractors must provide the following information to the Bureau of Consumer Protection:
• Name(s), address, driver’s license #, federal employer ID #, SSN
• Prior relevant criminal offenses (fraud, etc.)
• Prior bankruptcies – last 10 years
• Civil judgments related to home improvement (H/I) transaction
• Proof of liability insurance – personal injury ($50k), property damage ($5k)


D. § 7(a) - Home Improvement Contracts – not valid/enforceable, unless...
• Written, legible, signed by all parties
• ID info on all contractors, subcontractors
• Contains the entire agreement
• Description of work, materials, specs
• No changes without written change order
• Sales price, down payments
• Contractor agreement to maintain liability insurance
• Toll-free number to Bureau of Consumer Protection
• Notice of right of rescission w/o penalty w/in 3 business days of signing
• Copy of completed contract to owner at time of execution


E. § 7(e) - Voidable clauses – voidable by the owner
• Hold-harmless clause
• Waiver of any local/state/federal safety or building code requirement
• Confession of judgment clause
• Waiver of right to jury trial
• Assignment of wages
• Agreement not to assert any claim or defense
• Grant of attorney fees or costs to contractor
• Release of liability for collections of payments, repossession
• Waiver of rights under HICPA
• Automatic/recurring renewal provision (w/exceptions)


F. § 7(f) - Home improvement retailer contracts (HIRC)
• Covers retailers (undefined) with >$50M net worth who do not perform home improvements
• H/I retailer shall comply with HICPA contract requirements (sec. 7 of SB 100)
• HIRCs not valid or enforceable, unless in writing with all of following:
▫ name, address, phone of retailer
▫ information about person signing for retailer
▫ complies with most provisions in (D), above


G. § 7(g) - Contractor right of equitable recovery
• Nothing in HICPA precludes contractor from recovery of payment
• For work performed
• Based on reasonable value of services requested by the owner, if
• Contractor has complied with (D), above, and
• Court determines it would be “inequitable” to deny such recovery


H. § 7(e) - Arbitration clause
• Nothing in this act shall preclude a court from setting aside an arbitration clause on any basis permitted under Pennsylvania law.”
• If the contract contains an arbitration clause, it shall meet the following requirements or be deemed void upon motion of either party
▫ text of clause must be in capital letters
▫ 12 pt. bold-face type
▫ on separate page from rest of contract
▫ separate line for each party to show assent to be bound
▫ not effective unless both parties sign and date
▫ shall clearly state whether decision is binding or appealable to court
▫ shall state whether facts/documents/decision are confidential
• This provision might well be pre-empted by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. See e.g., Gay v. CreditInform, 511 F.3d 369 (3d Cir. 2007).


I. § 8(a) - Home Improvement Fraud is a crime
A person commits “home improvement fraud” if with the intent to defraud, or, injure anyone, or with the knowledge that he is facilitating fraud or injury by anyone, the actor:

• Makes a false/misleading statement to encourage a person to enter into a H/I contract, or to justify an increase in a previously agreed upon price; or
• Receives an advance payment and fails to perform the contract when specified, and fails to return the payment. Exception: force majeure, labor strike, etc.; or
• Misrepresents or conceals identifying contractor ID information – while soliciting a person to enter into an agreement; or
• Damages property to induce a person to enter into a contract; or
• Falsely represents a government affiliation to induce entry into a contract; or
• Misrepresents an item as a special order; or
• Alters a H/I contract or payment agreement without the consumer’s consent; or
• Publishes a false or deceptive advertisement, in violation of relevant state law about advts.


J. § 8(b), (c), (d) - Prosecution of Home Improvement Fraud
• Grading – M-1 or felony, depending on $, age of victim, priors etc.
• Penalties may include revocation/suspension of H/I contractor certificate
• DAs have authority to investigate and start prosecutions
• State Atty. Genl. can investigate/prosecute multi-county violators


K. § 9 - Prohibited Acts
No person shall:
• Fail to register, as required
• Fail to refund money w/in 10 days of request for refund, if all the following apply
▫ no substantial work has been performed at time of request
▫ more than 45 days have elapsed since starting date in contract
• Accept a certificate of completion or the like, knowing that it is false or work isn’t complete
• Knowingly use a false proof of performance in order to make/accept an assignment, or get/grant credit or loan or right to receive payment under an H/I contract
• Abandon or fail to perform a H/I contract, without justification (e.g., nonpayment)
• Materially deviate from plans/specs, without signed/dated change order, with prices
• Be involved in financing, knowing that the H/I contract states higher than actual price
• Advertise or offer to perform a H/I contract if the person does not intend to accept or per­form the contract at the advertised price
• Demand or received any payment before the contract is signed
• Receive a deposit of more than 1/3 of the contract price (contracts of more than $1,000)
• For a salesman to fail to account for/remit a payment to a contractor whom s/he represents
• Change liability or identifying information, after the contract is entered into, in a fraudulent or deceptive manner likely to cause confusion or misunderstanding, without advising the owner in writing within 10 days of any such change.

L. § 10 – Unfair Trade Practices & Consumer Protection Law (UTPCPL)
• A violation of any provisions of HICPA shall be deemed a violation of the UTPCPL.
• Nothing in HICPA shall preclude an owner from exercising a right under the UTPCPL.


M. § 11 – Regulations
The Bureau of Consumer Protection may adopt rules and regulations to carry out HICPA.


N. § 12 – Pre-emption of local registration
• Registration – registration under HICPA precludes other fees/licensing/registration
• Building permits – Local govt. can require building permits and reasonable permit fee
• Local govt. responsibilities remain under Pa. Construction Code and Worker’s Comp. Law
• No effect on trade licensing standards (plumber, electrician, etc.)
• No effect on local regs. for liability insurance adopted before 01-06 and in effect on 07-09


O. § 13 – Exemptions - HICPA does not apply to local, state or federal government


P. § 14 – Repeal - All inconsistent acts are repealed.


prepared by:

Donald Marritz, staff attorney
Regional Housing Legal Services
October 31, 2008

Truth in Lending - tolerance for accuracy - special pleading not required

In re Sterten - 3d Circuit - November 4, 2008

http://www.ca3.uscourts.gov/opinarch/072237p.pdf

The Truth in Lending Act, 15 U.S.C. § 1601, et seq., imposes disclosure requirements on creditors, exposing them to such penalties as money damages, attorney’s fees and recission for failure to disclose finance charges accurately. See § 1635(a) & (g); § 1640(a).

However, in 1995, in an effort to prevent creditors from being subject to “extraordinary liability” for small disclosure discrepancies, Congress amended the Act to include a “tolerances for accuracy” provision. Under that provision, a creditor is not liable for undisclosed finance charges if those charges fall within a specified range of error. 15 U.S.C. § 1605(f).

We decide whether a Truth in Lending Act defendant who does not specifically defend on the ground that any inaccuracies in its disclosure fell within the tolerance range waives the protection that provision provides. In procedural parlance, we decide whether a tolerances for accuracy defense is affirmative (requiring that it be pled specifically) or general (thus not requiring that it be pled specifically).

We hold that the defense is general, and that a defendant need not specifically raise the Act’s tolerances provision in order to avoid liability for disclosure errors that fall within its range.

attorney fees - foreign judgment - English rule

Olympus Corp v. Canady - Superior Court - October 30, 2008

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15025_08.pdf

Pennsylvania courts must give full faith and credit under the Uniform Foreign Money Judgment Recognition Act, 42 Pa. C.S. 22001 et seq. to a judgment of the UK High Court of Justice, which included an award of fees against the appellant (plaintiff in the UK court), under the long-standing "English rule," which provides for attorney fees to the prevailing party.

Such an award is remedial and not a penalty, does not violate any public policy of Pennsylvania, and was implicitly acquiesced in by the appellant, who sought recourse in the English courts.

social security - $ increases - Title II and SSI, etc.

SUMMARY: We have determined—
(1) A 5.8 percent cost-of-living increase in Social Security benefits under title II of the Social Security Act (the Act), effective for December 2008;

(2) An increase in the Federal Supplemental Security Income (SSI) monthly benefit amounts under title XVI of the Act for 2009 to $674 for an eligible individual, $1,011 for an eligible individual with an eligible spouse, and $338 for an essential person;

(3) The student earned income exclusion to be $1,640 per month in 2009 but not more than $6,600 in all of 2009;

(4) The dollar fee limit for services performed as a representative payee to be $37 per month ($72 per month in the case of a beneficiary who is disabled and has an alcoholism or drug addiction condition that leaves him or her incapable of managing benefits) in 2009;

(5) The dollar limit on the administrative-cost assessment charged to attorneys representing claimants to be $83 in 2009;

(6) The national average wage index for 2007 to be $40,405.48;

(7) The Old-Age, Survivors, and Disability Insurance (OASDI) contribution and benefit base to be $106,800 for remuneration paid in 2009 and self-employment income earned in taxable years beginning in 2009;

(8) The monthly exempt amounts under the Social Security retirement earnings test for taxable years ending in calendar year 2009 to be $1,180 and $3,140;

(9) The dollar amounts (‘‘bend points’’) used in the primary insurance amount benefit formula for workers who become eligible for benefits, or who die before becoming eligible, in 2009 to be $744 and $4,483;

(10) The bend points used in the formula for computing maximum family benefits for workers who become eligible for benefits, or who die before becoming eligible, in 2009 to be $950, $1,372, and $1,789;

(11) The amount of taxable earnings a person must have to be credited with a quarter of coverage in 2009 to be $1,090;

(12) The ‘‘old-law’’ contribution and benefit base to be $79,200 for 2009;

(13) The monthly amount deemed to constitute substantial gainful activity for statutorily blind individuals in 2009 to be $1,640, and the corresponding amount for non-blind disabled persons to be $980;

(14) The earnings threshold establishing a month as a part of a trial work period to be $700 for 2009; and

(15) Coverage thresholds for 2009 to be $1,700 for domestic workers and $1,500 for election workers.

disability - "closely approaching retirement age"

http://edocket.access.gpo.gov/2008/pdf/E8-25532.pdf

SUMMARY: We are modifying the rules we use to determine disability under titles II and XVI of the Social Security Act (‘‘Act’’) to revise the definition of persons ‘‘closely approaching retirement age’’ from ‘‘60–64’’ to ‘‘60 or older.’’

These changes acknowledge that we make disability determinations for persons over age 64. We are also making minor technical changes that will not have any effect on how we determine your eligibility for benefits.

DATES: These rules are effective October 29, 2008.

child abuse - expungement - founded report - collateral estoppel

C.J. v. DPW - Cmwlth. Court - October 24, 2008

http://www.courts.state.pa.us/OpPosting/Cwealth/out/591CD08_10-24-08.pdf
An adjudication of dependency and finding of abuse under the Juvenile Act bars a request for expunction from a founded report of child abuse under the Child Protective Services Law, under the doctrine of collateral estoppel.

Our recent decision in K.R. v. DPW, 950 A.2d 1069 (Pa. Cmwlth. 2008), holding the Department may rely on findings made in a dependency proceeding to deny a request for expunction of a founded child abuse report, compels the same result here.

An administrative hearing on the expunction request is not permitted because the petitioner was given a full and fair hearing to defend against the allegations in the dependency proceedings. He cannot collaterally attack the trial court’s dependency and abuse findings. The Court’s determination in K.R. allows for application of res judicata in expunction proceedings where, as here, the findings of fact in dependency proceedings establish child abuse at the hands of a named perpetrator.

Collateral estoppel bars a subsequent lawsuit where (1) an issue decided in a prior action is identical to one presented in a later action; (2) the prior action resulted in a final judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to the prior action, or is in privity with a party to the prior action; and (4), the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action.

The dispositive legal and factual issues were identical in both proceedings here, and the remaining criteria of collateral estoppel are similarly met.

PFA - past abuse - present fear of bodily injury

Buchalter v. Buchatler - Superior Court - October 27, 2008

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a23044_08.pdf

Past abuse that was subject of prior consent order held relevant to plaintiff's allegation of present fear of bodily injury, even

In essence, the trial court reasons that if Patricia is not believed as to the allegations in the present petition, then there is no need to hear testimony about prior abuse. We disagree. “In the context of a PFA case, the court’s objective is to determine whether the victim is in reasonable fear of imminent serious bodily injury….”

The facts surrounding the prior PFA consent order are relevant to an understanding as to the reasonableness of plaintiff's fear relative to the present petition. Moreover, merely determining that a party is not credible is not a basis in itself to exclude relevant testimony.
The court also cited Miller v. Walker, 665 A.2d 1252 at 1259, for the proposition that it was proper in that case to consider abuse which had occurred 6 years before.

disability - SSA general objections and remand request rejected

Morales v. Astrue - ED Pa. - October 23, 2008

http://www.paed.uscourts.gov/documents/opinions/08D1252P.pdf

SSA submission of "merely of generalized arguments, disagreeing with the Magistrate Judge’s result...do not impugn the validity of the Magistrate Judge’s Recommendation."

SSA request for remand for further evidentiary development also denied where the facts were fully developed before the ALJ and the Commissioner does not specify what additional evidence might be available.

UC - overpayment - fault - misstatement about ability to work

Presbery v. UCBR - Cmwlth. Court - October 22, 2008 - unreported mem. opinion

http://www.courts.state.pa.us/OpPosting/Cwealth/out/2355CD07_10-22-08.pdf

Claimant was at fault for an overpayment that occurred when she misrepresented her ability to work when applying for UC after being in a car accident. Her own medical evidence showed that she had not been released for work and was not able/available during a period of several months after her application for benefits.

UC - vol. quit - health/safety concerns

KK Fit, Inc. v. UCBR - Cmwlth. Court- October 22, 2008 - unreported memorandum opinion

http://www.courts.state.pa.us/OpPosting/Cwealth/out/349CD08_10-22-08.pdf

The court upheld the UCBR decision that the claimant had good cause to quit her job as the director of a children's gym, whose clients included infants.

The gym had two ongoing problems about which claimant complained for 5 months, to no avail. There were wiring problems and torn upholstery; some infants were eating pieces of the stuffing.

A third problem involved spider in the gym. One child had a bad reaction to a spider bite and had to be taken to the ER. The employer promised to take care of this problem, but claimant discovered that the exterminator visit had been cancelled and quit. The spider problem was not dealt with until 10 days later.

The Referee found that Claimant “acted as a reasonable person in inferring that [Employer] probably did not intend to take care of the problem immediately, as had been the case with the upholstery and the wiring.” Accordingly, the Referee affirmed the Service Center’s determination. Employer appealed the Referee’s decision to the Board. On appeal, the Board adopted and incorporated the Referee’s findings and conclusions, resolved the conflicts in testimony in favor of Claimant, and concluded that Employer “did not make timely and reasonable efforts to correct the serious safety issues present in the children’s gym.” The court held that these findings were "amply supported" by substantial evidence and the relevant law.

In order to show a necessitous and compelling cause to quit, the claimant must show that: “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.” An employee has a necessitous and compelling reason for terminating employment when the job jeopardizes her health or safety, or when the work results in a violation of the law.

Claimant acted reasonably in terminating her employment when she did. Claimant brought to Employer’s attention two serious safety issues regarding the electrical and upholstery defects which went unaddressed on a permanent basis for nearly five months that Claimant continued with her employment, when another safety issue arose, i.e., the problem with the spiders, at which time Claimant approached Employer about her decision to resign.

Claimant opted to trust Employer that the spider issue would be taken care of in a timely manner and, when she found out that Employer had cancelled the exterminator, she quit her employment. Employer did not address the safety issues. When Employer did not address the spider issue when it said it would, it was not unreasonable for Claimant to believe said safety condition would continue to go unaddressed, because the "Employer did not address the safety issues in a timely manner."

Claimant acted with ordinary common sense and made a reasonable effort to preserve her employment by taking proactive measures to address the safety concerns, while timely notifying the appropriate people of the various safety concerns. A reasonable person would act in the same manner both out of concern for her own safety from the faulty electrical wiring, as well as the lingering safety hazards to the children that were under her care. Based on the totality of the circumstances, and the gravity of the complaints that were not addressed, we cannot conclude that the Board erred as a matter of law in granting Claimant benefits.

real property - tax sale - notice to deceased's estate

In re Upset Price Tax Sale - Cmwlth. Court - October 22, 2008 - unreported mem. opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1102CD07_10-22-08.pdf

Trial court abused its discretion is setting aside tax sale, because of inadequate notice, where notice of the sale was properly sent under the Real Estate Tax Sale Law, RESTL, 721 PS 5860.602(e)(1), to the decedent owner's personal representative (PR), who had extensive contact with the Tax Claim Bureau.

Here, the PR specifically informed the TCB that the owners, her cousins, were deceased and that she was the person responsible to pay the taxes. She informed the TCB where she lived and that she was the designated agent of the family with respect to the Property for its tax liabilities. She was also appointed as the Administratrix of the estate, of her deceased cousin, who remained a record owner of the Property.

The TCB and the PR had previously corresponded regarding the Property and the PR actually prevented a previous upset tax sale when she entered into an agreement with the TCB to pay delinquent taxes on the Property. The parties stipulated that the Board of Assessment’s records since at lease 1999 listed a registered address for the owners as “c/o the PR” at her place of residence, the same address where the tax sale notices were mailed and received.

It would not have constituted ordinary sound business practices for the TCB to send notices to a person who was deceased to an address where it knew that the PR, the designated agent and person responsible for paying the taxes, did not reside.

Because the Section 602(e)(1) “first” notice was sent to and received by the PR, no additional notice or efforts to ascertain the identity and whereabouts of the owner of record were required by the TCB....TCB proved that it gave the requisite notice and there is evidence that the addressee received it. Accordingly, the order of the trial court which invalidated the upset tax sale of the Property is reversed.
-

public employement - termination - due process

Palmer v. Bartosh - Cmwlth. Court - October 23, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/137CD08_10-23-08.pdf

Plaintiff, a school teacher, stated claim for relief under 42 USC 1983 against defendant school administrators, in their individual capacities, for dismissing him from his public employment

"Plaintiff allged alleged that the Defendants, acting under the color of state law: engaged in a secret investigation; refused to allow a witness to observe their interviews with students; coerced and/or coached students into making accusations against Mr. Palmer, which the students thereafter refused to repeat under oath; failed to advise Mr. Palmer of the specific accusations against him or give him the opportunity to rebut them; and thereby obtained Mr. Palmer’s discharge from his employment."

"We conclude that these allegations of specific conduct taken by the Defendants, which must be taken as true at this stage of this proceeding, constitute sufficient facts to state a claim for deprivation of a property right to employment and reputation in violation of the Fourteenth Amendment and article 1, section 1 of the Pennsylvania Constitution, and, therefore, the trial court erred in sustaining the POs to Count VII against the Defendants in their individual capacities."

The Fourteenth Amendment requires due process where the deprivation of an individual’s property right, such as the right to continued public employment, is implicated. Andresky v. West Allegheny School District, 437 A.2d 1075 (Pa. Cmwlth. 1981).

Similarly, article I, section 1 of the Pennsylvania Constitution provides that an individual’s right to property and reputation may not be deprived without due process. R. v. Commonwealth, 535 Pa. 440, 636 A.2d 142 (1994); Pennsylvania Bar Association v. DPW, 607 A.2d 850 (Pa. Cmwlth. 1992).

Due process of law requires that an individual is entitled to adequate notice of the charges against him and an opportunity to be heard. Dunn v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 189 (Pa. Cmwlth. 2003). Adequate notice, for procedural due process purposes, requires at a minimum that notice contain a sufficient listing and explanation of the charges against the individual. Id.

civil procedure - POs - failure to respond

Joloza v. PennDOT - Cmwlth. Court - October 23, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/485CD08_10-22-08.pdf

It was error fro the trial court to sustain the defendant's preliminary objections (demurrer) solely on the basis of plaintiff's failure to respond to the POs, without even considering the allegations in the plaintiff's complaint.

UC - "unemployed"

Scott v. UCBR - Cmwlth. Court - October 21, 2008 - unreported memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/305CD08_10-21-08.pdf

School employee was not "unemployed" under 43 PS sec. 753(u) and 801 where she continued to receive wages and health benefits under a collective barg. agreement during a period in which she was not working, over the summer.

custody - public schooling v. home schooling - no presumption

Staub v. Staub - Superior Court - October 21, 2008

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A13018_08.pdf

The court rejected father's request that it "adopt a clear but narrow rule that requires children to attend public schools when parents who share legal custody cannot agree on home schooling versus public schooling. We decline to adopt such a rule or presumption. To the contrary, we hold that the well-established best interests standard, applied on a case by case basis, governs a court’s decision regarding public schooling versus home schooling."

UC - appellate brief - no case citations; willful misconduct

Miracle v. UCBR - Cmwlth. Court - October 20, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/250CD08_10-20-08.pdf

appellate brief - Rule 2101 - no case citations -The court refused to quash claimant's brief, even though it did not contain any case citations. The court found that the "argument articulated are sufficient to allow the court to engage in appellate review.

willful misconduct - Claimant's failure to comply with the employer's reasonable work request (entering an incident in a master log) was reasonable, and that claimant's failure to do so, without good cause, constituted willful misconduct.

disability - mental impairment - severity

Velazquez v. Astrue - ED Pa. - October 2008

http://www.paed.uscourts.gov/documents/opinions/08D1220P.pdf

Finding of non-severity of mental impairment not supported by substantial evidence. Case remanded.

" In order to meet the step two severity test, an impairment need only cause a slight abnormality that has no more than a minimal effect on the ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921; S.S.R. 96-3p, 85-28. The Third Circuit Court of Appeals has held that the step two severity inquiry is a “de minimus screening device to dispose of groundless claims.” McCrea v. Comm. of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004); Newell v. Comm. of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003). “Any doubt as to whether this showing has been made is to be resolved in favor of the applicant.” Id.

The medical records from 2000 and 2001 show serious symptoms and limitations arising from Velazquez’s mental impairment including GAF scores between 45 and 58....Although the ALJ listed most of the evidence, she did not mention the GAF scores or sufficiently explain why the state medical consultant’s conclusion of non-severity was most consistent with the evidence, especially in light of the many serious findings from Velazquez’s treating and examining mental health professionals.

While the evidence may not establish disabling depression, the evidence also does not appear to establish that Velazquez’s depression was groundless. As a result, on remand, the ALJ shall re-assess her determination regarding Velazquez’s depression and support her decision with substantial evidence. Likewise, the ALJ shall conform her RFC assessment and any hypothetical questions to reflect her properly supported conclusions.

evidence - clear and convincing evidence

Kistler v. State Ethics Commission - Cmwlth. Court - October 17, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1352CD07_10-17-08.pdf

" Clear and convincing proof is evidence that is so clear, direct, weighty and convincing that it enables the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue. In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88 (1998)."

UC- willful misconduct

Keystone Central School District v. UCBR - Cmwlth./ Court - October 15, 2008 - unreported en banc memorandum opinion (5-2)

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1864CD07_10-15-08.pdf

Learning support teacher was not guilty of willful misconduct for her conduct during testing of learning disabled students. The UCBR's findings that her actions were consistent with state exam testing accommodations, each child's IEP, and instructions from her superiors were supported by substantial evidence.

paternity by estoppel

Ellison v. Lopez - Superior Court - October 15, 2008

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a18031_08.pdf

Defendant estopped from denying paternity of child born out of wedlock where

- there was no fraud or misrepresentation by mother

- defendant was always aware that there was a question about paternity

- defendant held child out as his own and assumed parental role for at least two years, despite paternity questions

- defendant did not ask for paternity testing for two years, despite child's lack of resemblance to him

UC - appeal - notice of issues - timeliness of appeal

Plut v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2283CD07_10-14-08.pdf

Issue of timeliness of claimant's appeal was properly considered, even though not listed on the notice of hearing.

The referee gave claimant the option of continuing the hearing because the issue was not listed, but not the "chance to refused to decide the timeliness issue" under 34 Pa. Code101.87. http://www.pacode.com/secure/data/034/chapter101/s101.87.html.

Nonetheless, following Dilenno v. UCBR, 429 A.2d 1288 (Pa. Cmwlth 1288, 1289 (Pa. Cmwlth. 1981), the court said the timeliness of an appeal is a jurisdictional prerequisite that is always at issue, cannot be waived by the referee by the failure to list it on the notice of hearing, and can be raised by the court on its own motion at any time.

UC- vol. quit - good cause - change in work schedule

Philadelphia Park Casino v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/726CD08_10-14-08.pdf

Claimant had good cause to quit his job where he has negotiated a work shedule with the employer, for religious and health reasons, and employer unilaterally changed the schedule.

UC - hearing - continuance - good cause - new job

Ammon v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/795CD08_10-14-08.pdf

Refusal to grant claimant's last minute request for a continuance was an abuse of discretion, where it resulted from an unexpected, last-minute opportunity to begin employment on the day of the hearing.

Normally, last-minute requests are disfavored. However, in this case the request was supported by "proper cause" under 34 Pa. Code § 101.23 http://www.pacode.com/secure/data/034/chapter101/s101.23.html.

The refusal to grant it would penalize a person who actually found work and would be "contrary to the goal of stabilizing employment." Shegan v. UCBR, 564 A.2d 1022, 1025 n. 5 (Pa. Cmwlth. 1989).

pre-emption - state/local

Hoffman Mining Company v. Zoning Hearing Board - Cmwlth. Court - October 15, 2008

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2122CD07_10-15-08.pdf

Whether a state statute preempts local regulation is determined by the intent of the General Assembly. The General Assembly can specifically express its intent by either providing that municipalities may enact ordinances not inconsistent with state law, limiting what subjects of regulation that may be enacted, or by expressly forbidding municipal regulation altogether.

However, the General Assembly is often silent and is not presumed to have preempted the field by legislating in it; therefore, it must clearly be shown that it was the General Assembly’s intent to preempt the field by legislation. Retail Master Bakers Association v. Allegheny County, 400 Pa. 1, 161 A.2d 36 (1960); Baird v. Township of New Britain, 633 A.2d 225 (Pa. Cmwlth. 1993).

The presumption against preemption is based on the understanding that what is being preempted is the ability of the municipality, through its elected local officials, to address the needs of its citizens.

UC - willful misconduct - lateness

Turner v. UCBR - Cmwlth. Court - October 8, 2008 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/519CD08_10-8-08.pdf

Claimant was guilty of willful misconduct when she stopped on her way to work to get shoes (because her feet hurt), without telling the employer that she was doing so and would be late. Claimant had a history of lateness and had been given a final warning.

child abuse - "imminent risk" - OCYF Bulletin

Montgomery Co. CYS v. DPW - Cmwlth. Court - Octobwer 8, 2008 - unreported memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/376CD08_10-8-08.pdf

No risk of imminent serious injury by momentary inattention of daycare worker, especially considering the definition of "imminent risk" in proposed regs.

disability - treating physician opinion; credibility

Wilson v. Astrue - ED Pa. November 28, 2007

http://www.paed.uscourts.gov/documents/opinions/07D1402P.pdf

Benefits granted in this case, with good discussions of standards for evaluating opinion of treating physician and judging claimant credibility.

appellate rules - petitioner for allowance of appeal - PRAP 1115

order - http://www.courts.state.pa.us/OpPosting/Supreme/out/196aplt.1.pdf

rule - http://www.courts.state.pa.us/OpPosting/Supreme/out/196aplt.1attach.pdf

evidence - offers to compromise - Pa. R. Evid. 408

http://www.courts.state.pa.us/OpPosting/Supreme/out/451spct.1attach.pdf

http://www.courts.state.pa.us/OpPosting/Supreme/out/451spct.1rpt.pdf

http://www.courts.state.pa.us/OpPosting/Supreme/out/451spct.1.pdf

UC - vol. quit - intolerable conditions - unjust accusations

First Federal Savings Bank v. UCBR - Commonwealth Court - October 2, 2008

http://www.courts.state.pa.us/OpPosting/Cwealth/out/427CD08_10-2-08.pdf

Held that claimant had good cause/necessitour & compelling reason to quit her job, where

- she was a valued management employeee

- a fellow employee “engaged in outbursts, was talking, defiant and argumentative, and was quite disrespectful to the claimant personally.”

- claimant expressed her concerns about this to senior management, who did not do anything about it

- claimant established that “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.”

- She had ‘good cause’ for voluntarily leaving (i.e. that cause which is necessitous and compelling) resulting from circumstances which produced pressure to terminate employment that was both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.”

- "Perhaps most important to the present case, it is well established that “a claimant need not indefinitely subject herself to unjust accusations and abusive conduct.” However, “[r]esentmentof a reprimand, absent unjust accusations, profane language or abusive conduct …mere disappointment with wages … and personality conflicts, absent intolerable working atmosphere … do not amount to necessitous and compelling causes.”

- Claimant demonstrated more than a mere belief of unjust accusations, as the Board concluded that Claimant was, in fact, unjustly reprimanded with abusive language and that Claimant was subjected to intolerable working conditions.

- Claimant made attempts on various occasions to preserve her employment relationship with Employer without success. Claimant took her concerns to senior management officials and was reasonable in doing so

consumer - UTPCPL - fraud in the inducement - parol evidence

Devine v. America's Whole Lender, et al. - ED Pa. - September 25, 2008

http://www.paed.uscourts.gov/documents/opinions/08D1132P.pdf

Plaintiff's evidence about defendant's preliminary, fraudulent misrepresentations is barred by the Pennsylvania application of the parol evidence rule barring evidence about fraud in the inducement.

From the opinion (read it and weep)

Under Pennsylvania law, evidence of prior or contemporaneous oral or written negotiations or agreements is generally inadmissible to explain or vary the terms of a contract that covers or purports to cover the entire agreement of the parties. Yocca v. The Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004); Bardwell v. Willis Co., Inc., 100 A.2d 102, 104 (Pa. 1953). In Yocca, the Pennsylvania Supreme Court explained the fraud exception to the parol evidence rule as follows:

"Notably, while parol evidence may be introduced based on a party's claim that there was fraud in the execution of the contract, i.e., that a term was fraudulently omitted from the contract, parol evidence may not be admitted based on a claim that there was fraud in the inducement of the contract, i.e., that an opposing party made false representations that induced the complaining party to agree to the contract. Yocca, 854 A.2d at fn. 26; see also HCB Contractors v. Liberty Place Hotel Assocs., 652 A.2d 1278, 1279 (Pa. 1995)."

The plaintiffs claim they signed the loan documents based on defendant's assurances that the payment option they desired would be added to the package after execution of the documents. This is fraud in the inducement. The parol evidence rule bars the introduction of this evidence because plaintiffs seek to vary the terms of the written loan documents, which purported to cover the parties' entire agreement. There is no evidence that a term was fraudulently omitted from the contract. Thus, what happened here does not fall within the fraud exception under Yocca.

Given Pennsylvania's adoption of the parol evidence rule, the plaintiffs cannot be said to have justifiably relied on the defendants' representations regarding the amount of the monthly payments due under the loans because these representations are in direct conflict with the parties' contract. Yocca, 854 A.2d at 502. Thus, plaintiffs' claim under the UTPCPL fails.

Accordingly, the court will grant summary judgment on plaintiffs' claims under the catch-all provision of the UTPCPL which are based on defendants' alleged misrepresentations.6

n. 6 - The plaintiffs' brief in opposition to the defendants' motion for summary judgment for the first time asserts that their claims "are based in part on the ground that a violation of any portion of the UTPCPL, notably here the violations of 73 P.S. section 201-7 and the violation of any other consumer protection laws, such as the TILA, constitute per se violations of section 201-4(2) of the TPCPL." However, paragraph 32 of the plaintiffs' complaint premises their per se violations of the UTPCPL on the defendants' alleged violations of the Pa. Credit Services Act and the Pa. Loan Broker Trade Practices Regulations ("LBTP") only. To the extent the plaintiffs have premised their claims under the UTPCPL on the alleged violations of TILA and § 201-7 of the UTPCPL, such claims come too late.