Rahemtulla v. Hassam - MD Pa. - March 24, 2008
http://www.pamd.uscourts.gov/opinions/mannion/05v0198-02.pdf
Courts are extremely cautious about permitting tort recovery based on contractual breaches.
"'While it is true that the mere existence of a contract between parties does not foreclose the possibility of a tort action arising between them, it does not follow that a plaintiff should be allowed to sue in tort for damages arising out of a breach of contract. To hold otherwise would be to blur one reasonably bright line between contract and tort, and hence introduce needless confusion into the judicial process, a step that Pennsylvania’s state and federal courts alike have refused to take.
"[T]he 'gist of the action' doctrine precludes plaintiffs from recasting ordinary breach of contract claims into tort claims, where such tort claims '(1) aris[e] solely from a contract between the parties; (2) when the duties allegedly breached were created and grounded in the contract itself; (3) where the liability stems from a contract; or (4) when the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract.'"
The conceptual distinction between a breach of contract claim and a tort claim is that the former arises out of “breaches of duties imposed by mutual consensus agreements between particular individuals,” while the latter aries out of “breaches of duties imposed by law as a matter of social policy.”....“In other words...,a claim should be limited to a contract claim when the parties’ obligations are defined by the terms of the contracts, and not by the larger social policies embodied by the law of torts.”
Sunday, March 30, 2008
contracts - parol evidence - Toy v. Metropolitan Life, etc.
Rahemtulla v. Hassam - MD Pa. - March 24, 2008
http://www.pamd.uscourts.gov/opinions/mannion/05v0198-02.pdf
"It has long been held that the parol evidence rule bars evidence of prior representations in a fully integrated written agreement.....Where a written contract contains an integration clause, “the law declares the writing to not only be the best, but the only evidence of [the parties’] agreement....”
The purpose of an integration clause is to give effect to the parol evidence rule: “Thus, the written contract, if unambiguous, must be held to express all of the negotiations, conversations, and agreements made prior to its execution, and neither oral testimony, nor prior written agreements, or other writings, are admissible to explain or vary the terms of the contract.”....
Therefore, where a party claims fraud in the inducement and the written contract is fully integrated, the parol evidence rule works to bar evidence of any representations made about any matter covered by the agreement prior to the contract’s execution. Id. However, in a situation commonly referred to as fraud in the execution, where the party proffering the evidence contends that certain terms were supposed to be included in the contract, but were omitted because of fraud, accident, or mistake, then parol evidence is admissible. Id. The Supreme Court of Pennsylvania has concisely stated this rule of law:
[W]hile parol evidence may be introduced based on a party’s claim that there was fraud in the execution of a 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. Toy v. Metro. Life Ins. Co., 928 A.2d 186, 205 (Pa. 2007) (internal citations omitted); see also Dayhoff, Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1300 (3d Cir. 1996).
The rationale behind this rule is “that a party cannot justifiably rely upon prior oral representations and then sign a contract containing terms that refute the alleged prior oral representations.” ....Otherwise, “the parol evidence rule would become a mockery, because all a party to the written contract would have to do to avoid, modify, or nullify it would be to aver (and prove) that the false representations were fraudulently made."
In this case...plaintiffs are not alleging fraud in the execution, which only applies to situations where the parties agree to include certain terms in an agreement, but such terms were omitted because of fraud, accident, or mistake.....Moreover, the plaintiffs failed to aver that [defendant's] alleged prior oral representations were fraudulently omitted from the integrated written contract; they should have insisted that the alleged representations made by Mr. Hassam be set forth in their integrated written agreements. [emphasis added]
[W]here a party asserts he relied on any understanding, promises, representations, or agreements made prior to the execution of the written contract or lease, that party should have protected himself by incorporating into the written agreement those promises or representations upon which he now relies)....[A plaintiff should protect] himself by incorporating the representations upon which he now purports to rely” into the agreement, because in light of the integration clause, he “cannot be bound by any representations other than those expressly contained within the Agreement”)....
http://www.pamd.uscourts.gov/opinions/mannion/05v0198-02.pdf
"It has long been held that the parol evidence rule bars evidence of prior representations in a fully integrated written agreement.....Where a written contract contains an integration clause, “the law declares the writing to not only be the best, but the only evidence of [the parties’] agreement....”
The purpose of an integration clause is to give effect to the parol evidence rule: “Thus, the written contract, if unambiguous, must be held to express all of the negotiations, conversations, and agreements made prior to its execution, and neither oral testimony, nor prior written agreements, or other writings, are admissible to explain or vary the terms of the contract.”....
Therefore, where a party claims fraud in the inducement and the written contract is fully integrated, the parol evidence rule works to bar evidence of any representations made about any matter covered by the agreement prior to the contract’s execution. Id. However, in a situation commonly referred to as fraud in the execution, where the party proffering the evidence contends that certain terms were supposed to be included in the contract, but were omitted because of fraud, accident, or mistake, then parol evidence is admissible. Id. The Supreme Court of Pennsylvania has concisely stated this rule of law:
[W]hile parol evidence may be introduced based on a party’s claim that there was fraud in the execution of a 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. Toy v. Metro. Life Ins. Co., 928 A.2d 186, 205 (Pa. 2007) (internal citations omitted); see also Dayhoff, Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1300 (3d Cir. 1996).
The rationale behind this rule is “that a party cannot justifiably rely upon prior oral representations and then sign a contract containing terms that refute the alleged prior oral representations.” ....Otherwise, “the parol evidence rule would become a mockery, because all a party to the written contract would have to do to avoid, modify, or nullify it would be to aver (and prove) that the false representations were fraudulently made."
In this case...plaintiffs are not alleging fraud in the execution, which only applies to situations where the parties agree to include certain terms in an agreement, but such terms were omitted because of fraud, accident, or mistake.....Moreover, the plaintiffs failed to aver that [defendant's] alleged prior oral representations were fraudulently omitted from the integrated written contract; they should have insisted that the alleged representations made by Mr. Hassam be set forth in their integrated written agreements. [emphasis added]
[W]here a party asserts he relied on any understanding, promises, representations, or agreements made prior to the execution of the written contract or lease, that party should have protected himself by incorporating into the written agreement those promises or representations upon which he now relies)....[A plaintiff should protect] himself by incorporating the representations upon which he now purports to rely” into the agreement, because in light of the integration clause, he “cannot be bound by any representations other than those expressly contained within the Agreement”)....
Friday, March 28, 2008
insurance - denial - bad faith
Brown v. Liberty Mutual Fire Insurance Co. - ED Pa. - March 26, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0350P.pdf
Defendant-insurer's motion for summary judgment on plaintiff's claim of bad faith under
Pennsylvania’s Bad Faith Statute, 42 Pa. C.S.A. § 8371, denied because of genuine issues of material fact.
The Bad Faith Statute, 42 Pa. C.S.A. § 8371, provides that in an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may
1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.
2) Award punitive damages against the insurer
3) Assess court costs and attorney fees against the insurer.
Bad faith on the part of an insurer is any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such a refusal be fraudulent. Leo v. State Farm Mutual Automobile Insurance Co., 1996 WL 37827 (E.D. Pa. Jan. 25, 1996).
Bad faith imports a dishonest purpose through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith. Id. Bad faith must be proven by clear and convincing evidence. Smolinsky v. State Farm Insurance Co., 2000 WL 1201384 (E.D. Pa. Aug. 8, 2000).
To recover a plaintiff must show that the defendant did not have a reasonable basis for denying benefits under the policy and that the defendant knew or recklessly disregarded its lack of a reasonable basis for denying the claim. Leo, 1996 WL 37827 at 2.
http://www.paed.uscourts.gov/documents/opinions/08D0350P.pdf
Defendant-insurer's motion for summary judgment on plaintiff's claim of bad faith under
Pennsylvania’s Bad Faith Statute, 42 Pa. C.S.A. § 8371, denied because of genuine issues of material fact.
The Bad Faith Statute, 42 Pa. C.S.A. § 8371, provides that in an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may
1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.
2) Award punitive damages against the insurer
3) Assess court costs and attorney fees against the insurer.
Bad faith on the part of an insurer is any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such a refusal be fraudulent. Leo v. State Farm Mutual Automobile Insurance Co., 1996 WL 37827 (E.D. Pa. Jan. 25, 1996).
Bad faith imports a dishonest purpose through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith. Id. Bad faith must be proven by clear and convincing evidence. Smolinsky v. State Farm Insurance Co., 2000 WL 1201384 (E.D. Pa. Aug. 8, 2000).
To recover a plaintiff must show that the defendant did not have a reasonable basis for denying benefits under the policy and that the defendant knew or recklessly disregarded its lack of a reasonable basis for denying the claim. Leo, 1996 WL 37827 at 2.
bankruptcy - students loan
Sperazza v. Univ. of Maryland - ED Pa. - March 24, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0345P.pdf
The district court affirmed the bankruptcy court's denial of appellant's request to discharge his student loans. The facts are not sympatheric, but the case has a short, clear discussion of the issues, as follows:
The Bankruptcy Code does not allow a Chapter 7 debtor to discharge educational loans “unless excepting such debt from discharge . . . will impose an undue hardship on the debtor and the debtor’s dependents.” 11 U.S.C. § 523(a).
In order to establish undue hardship, a debtor must demonstrate that: (1) based on his current income and expenses, he cannot maintain a minimal standard of living for himself and his dependents if forced to repay the loans; (2) additional circumstances indicate that the debtor’s status is likely to persist for a significant portion of the loan repayment period; and (3) the debtor has made good faith efforts to repay the loans. Pa. Higher Educ. Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 304-05 (3d Cir. 1995) (adopting standard set forth in Brunner v. N.Y. State Higher Educ. Servs. Corp. (In re Brunner), 831 F.2d 395, 396 (2d Cir. 1987)).
It is the debtor’s burden to establish each prong of the Faish test by a preponderance of the evidence, all prongs must be satisfied, and if “one of the elements of the test is not proven, the inquiry must end there, and the student loans cannot be discharged.” Brightful v. Pa. Higher Educ. Assistance Agency (In re Brightful), 267 F.3d 324, 327-28 (3d Cir. 2001).
This “test must be strictly construed,” and “equitable concerns or other extraneous factors not contemplated by the test may not be imported into the analysis.” Id. at 328. Strict application of the Faish factors “safeguards the financial integrity of the student loan program by not permitting debtors who have obtained the substantial benefits of an education funded by taxpayer dollars to dismiss their obligations merely because repayment of the borrowed funds would require some major personal and financial sacrifices.” Id.
http://www.paed.uscourts.gov/documents/opinions/08D0345P.pdf
The district court affirmed the bankruptcy court's denial of appellant's request to discharge his student loans. The facts are not sympatheric, but the case has a short, clear discussion of the issues, as follows:
The Bankruptcy Code does not allow a Chapter 7 debtor to discharge educational loans “unless excepting such debt from discharge . . . will impose an undue hardship on the debtor and the debtor’s dependents.” 11 U.S.C. § 523(a).
In order to establish undue hardship, a debtor must demonstrate that: (1) based on his current income and expenses, he cannot maintain a minimal standard of living for himself and his dependents if forced to repay the loans; (2) additional circumstances indicate that the debtor’s status is likely to persist for a significant portion of the loan repayment period; and (3) the debtor has made good faith efforts to repay the loans. Pa. Higher Educ. Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 304-05 (3d Cir. 1995) (adopting standard set forth in Brunner v. N.Y. State Higher Educ. Servs. Corp. (In re Brunner), 831 F.2d 395, 396 (2d Cir. 1987)).
It is the debtor’s burden to establish each prong of the Faish test by a preponderance of the evidence, all prongs must be satisfied, and if “one of the elements of the test is not proven, the inquiry must end there, and the student loans cannot be discharged.” Brightful v. Pa. Higher Educ. Assistance Agency (In re Brightful), 267 F.3d 324, 327-28 (3d Cir. 2001).
This “test must be strictly construed,” and “equitable concerns or other extraneous factors not contemplated by the test may not be imported into the analysis.” Id. at 328. Strict application of the Faish factors “safeguards the financial integrity of the student loan program by not permitting debtors who have obtained the substantial benefits of an education funded by taxpayer dollars to dismiss their obligations merely because repayment of the borrowed funds would require some major personal and financial sacrifices.” Id.
Wednesday, March 26, 2008
state appellate procedure - interlocutory appeal - PRAP 341
Druot et al. v. Coulter et al. - Superior Court - March 26, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/m02001_08.pdf
Plaintiffs' appeal of order granting summary to defendants on all counts of plaintiffs' complaint was not a final, appealable order under P.R.A.P. 341 http://www.pacode.com/secure/data/210/chapter3/s341.html where the trial court order did not dispose of any of the defendants' counterclaims.
Where an order determines "fewer than all of the claims" in the case, PRAP Rule 341(c) allows an interlocutory appeal "only upon an express determination that an immediate appeal would facilitate resolution of the entire case."
http://www.courts.state.pa.us/OpPosting/Superior/out/m02001_08.pdf
Plaintiffs' appeal of order granting summary to defendants on all counts of plaintiffs' complaint was not a final, appealable order under P.R.A.P. 341 http://www.pacode.com/secure/data/210/chapter3/s341.html where the trial court order did not dispose of any of the defendants' counterclaims.
Where an order determines "fewer than all of the claims" in the case, PRAP Rule 341(c) allows an interlocutory appeal "only upon an express determination that an immediate appeal would facilitate resolution of the entire case."
SSA - immune system disorders - revised medical criteria for evaluation
Revised Medical Criteria for Evaluating Immune System Disorders - effective June 16, 2008
http://a257.g.akamaitech.net/7/257/2422/01jan20081800/edocket.access.gpo.gov/2008/pdf/E8-5023.pdf
http://a257.g.akamaitech.net/7/257/2422/01jan20081800/edocket.access.gpo.gov/2008/pdf/E8-5023.pdf
Monday, March 24, 2008
UC - voluntary quit - same-sex couple
Procito v. UCBR - Commonwealth Court - March 17, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/2402CD06_3-17-08.pdf
The majority held that the claimant, a partner in a same-sex relationship, "failed to meet her burden to prove that she terminated her job for a necessitous and compelling cause....As a consequence,....the Court need not address any constitutional issues that [claimant] raised inasmuch as this case certainly can be decided on non-constitutional grounds." The majority clearly wanted to side-step the issue of whether the follow-the-spouse doctrine could be applied to a same-sex couple.
One concurring judge (Pelligrini) agreed that "there is no evidence that Claimant's domestic situation caused her to leave her employment and relocate....All evidence indicates that her domestic partner moved....to be with her son in college because she wanted to, not because they heed to. This is clearly a personal choice and not a domestic reason that constitutes a necessitous and compelling reason to justify the award of benefits.
Another concurring judge (Leavitt) felt that under Wallace v. UCBR, 393 A.2d 43 (Pa. Cmwlth. 1978), the Court was "free to change [the follow-the-spouse] doctrine to include couples that are unmarried, whether by choice or compulsion" but that the General Assembly and not judges should make "the hard policy decisions on eligibility." She believes that Wallace was wrongly decided.
Judge Friedman dissented, noting first that while saying that the follow-the-spouse doctrine did not apply to unmarried couples, the majority actually applied it in this case in finding that the claimant failed to proved good cause in moving to another state to be with her partner. In addition, she would hold there was a "clear violation of Claimant's due process rights" by the referee's refusal to hear evidence about claimant's good cause to leave her job, thus denying her a "full and fair opportunity to be heard on the matter." (emphasis in original). She felt that the "UCBR's failure to apply the 'following spouse doctrine' because Claimant is not married to her domestic partner violates Claimant's equal protection rights," citing Wallace.
http://www.courts.state.pa.us/OpPosting/CWealth/out/2402CD06_3-17-08.pdf
The majority held that the claimant, a partner in a same-sex relationship, "failed to meet her burden to prove that she terminated her job for a necessitous and compelling cause....As a consequence,....the Court need not address any constitutional issues that [claimant] raised inasmuch as this case certainly can be decided on non-constitutional grounds." The majority clearly wanted to side-step the issue of whether the follow-the-spouse doctrine could be applied to a same-sex couple.
One concurring judge (Pelligrini) agreed that "there is no evidence that Claimant's domestic situation caused her to leave her employment and relocate....All evidence indicates that her domestic partner moved....to be with her son in college because she wanted to, not because they heed to. This is clearly a personal choice and not a domestic reason that constitutes a necessitous and compelling reason to justify the award of benefits.
Another concurring judge (Leavitt) felt that under Wallace v. UCBR, 393 A.2d 43 (Pa. Cmwlth. 1978), the Court was "free to change [the follow-the-spouse] doctrine to include couples that are unmarried, whether by choice or compulsion" but that the General Assembly and not judges should make "the hard policy decisions on eligibility." She believes that Wallace was wrongly decided.
Judge Friedman dissented, noting first that while saying that the follow-the-spouse doctrine did not apply to unmarried couples, the majority actually applied it in this case in finding that the claimant failed to proved good cause in moving to another state to be with her partner. In addition, she would hold there was a "clear violation of Claimant's due process rights" by the referee's refusal to hear evidence about claimant's good cause to leave her job, thus denying her a "full and fair opportunity to be heard on the matter." (emphasis in original). She felt that the "UCBR's failure to apply the 'following spouse doctrine' because Claimant is not married to her domestic partner violates Claimant's equal protection rights," citing Wallace.
Sunday, March 23, 2008
contracts- duty of good faith & fair dealing - no separate cause of action
Morgan Truck Body v. Integrated Logistics Solutions - ED Pa. - March 20, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0320P.pdf
Although the UCC, 13 Pa. C.S. 1203, and common law, as reflected in the Restatement of Contracts, sec. 205, impose a duty of good faith and fair dealing in the performance of a contract, Creeger Brick & Building Supply Inc. v. Mid-State Bank & Trust Co., 560 A.2d 151, 153 (Pa. Super. 1989), "Pennsylvania does not recognize this theory as an independent cause of action."
http://www.paed.uscourts.gov/documents/opinions/08D0320P.pdf
Although the UCC, 13 Pa. C.S. 1203, and common law, as reflected in the Restatement of Contracts, sec. 205, impose a duty of good faith and fair dealing in the performance of a contract, Creeger Brick & Building Supply Inc. v. Mid-State Bank & Trust Co., 560 A.2d 151, 153 (Pa. Super. 1989), "Pennsylvania does not recognize this theory as an independent cause of action."
federal courts - interlocutory appeals
Photomedex, Inc. v. St. Paul Fire & Marine Ins. Co. - ED Pa. - March, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0321P.pdf
Federal courts have discretion to certify an issue for immediate appeal under 28 U.S.C. § 1292(b), when the court issues a non-final order and certifies that
a) the order involves a controlling question of law
b) as to which there is substantial ground for difference of opinion,
c) and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.
The court must certify that all three factors are met. Even then, the district court should exercise its discretion to certify only in exceptional cases. The Third Circuit has held that the certification procedure is not mandatory; permission to appeal is wholly within the discretion of the courts, even if the § 1292(b)] criteria are present.
In this case, the defendant failed to show a “substantial ground for difference of opinion” under the second element. A substantial ground for difference of opinion “refers to the legal standard applied in the decision for which certification is sought and whether other courts have substantially differed in applying that standard.”
http://www.paed.uscourts.gov/documents/opinions/08D0321P.pdf
Federal courts have discretion to certify an issue for immediate appeal under 28 U.S.C. § 1292(b), when the court issues a non-final order and certifies that
a) the order involves a controlling question of law
b) as to which there is substantial ground for difference of opinion,
c) and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.
The court must certify that all three factors are met. Even then, the district court should exercise its discretion to certify only in exceptional cases. The Third Circuit has held that the certification procedure is not mandatory; permission to appeal is wholly within the discretion of the courts, even if the § 1292(b)] criteria are present.
In this case, the defendant failed to show a “substantial ground for difference of opinion” under the second element. A substantial ground for difference of opinion “refers to the legal standard applied in the decision for which certification is sought and whether other courts have substantially differed in applying that standard.”
contracts - implied-in fact
Morgan Truck Body v. Integrated Logistics Solutions - ED Pa. - March 20, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0320P.pdf
Under Pennsylvania law, “an implied-in-fact contract is a true contract arising from mutual agreement and intent to promise, but where the agreement and promise have not been verbally expressed. The agreement is inferred from the conduct of the parties."
"Contracts are often spoken of as express or implied. The distinction involves, however, no difference in legal effect, but lies merely in the mode of manifesting assent. Just as assent may be manifested by words or other conduct, sometimes including silence, so intention to make a promise may be manifested in language or by implication from other circumstances, including course of dealing or usage of trade or course of performance. Restatement (Second) of Contracts § 4 cmt. a; see also Rissi v. Cappella, 918 A.2d 131, 140 (Pa. Super. 2007)
"When parties continue to conduct business following the expiration of their written agreement, the law may recognize their relationship as an 'implied-in-fact' contract."
http://www.paed.uscourts.gov/documents/opinions/08D0320P.pdf
Under Pennsylvania law, “an implied-in-fact contract is a true contract arising from mutual agreement and intent to promise, but where the agreement and promise have not been verbally expressed. The agreement is inferred from the conduct of the parties."
"Contracts are often spoken of as express or implied. The distinction involves, however, no difference in legal effect, but lies merely in the mode of manifesting assent. Just as assent may be manifested by words or other conduct, sometimes including silence, so intention to make a promise may be manifested in language or by implication from other circumstances, including course of dealing or usage of trade or course of performance. Restatement (Second) of Contracts § 4 cmt. a; see also Rissi v. Cappella, 918 A.2d 131, 140 (Pa. Super. 2007)
"When parties continue to conduct business following the expiration of their written agreement, the law may recognize their relationship as an 'implied-in-fact' contract."
Friday, March 21, 2008
attorney fees - civil rights - sec. 1988 - "prevailing party"
People Against Police Violence v. City of Pittsburgh - 3d Cir. - March 17, 2008
http://www.ca3.uscourts.gov/opinarch/064457p.pdf
Plaintiffs were the "prevailing party" under 42 USC sec. 1988 where they achieved relief on the merits of their claims in the form of a preliminary injunction, which was dissolved only after the defendant city passed a new ordinance, even though the case was dismissed by agreement of all parties without a final judgment in favor of plaintiffs. The City never pressed the court to reach a judgment on the merits and eventually acceded to all of plaintiffs' claims.
This decision is in line with that of "nearly every Court of Appeals to have the addressed the issue." The great majority of the courts have held that "relief obtained via a preliminary injunction can, under appropriate circumstances, render a party 'prevailing.'" Such circumstances existed here, where "(1) the trial court, based upon a finding of a likelihood of plaintiffs’ success on the merits, entered a judicially enforceable order granting plaintiffs virtually all the relief they sought, thereby materially altering the legal relationship between the parties; (2) the defendant, after opposing interim relief, chose not to appeal from that order and remained subject to its restrictions for a period of over two years; and (3) the defendant ultimately avoided final resolution of the merits of plaintiffs’ case by enacting new legislation giving plaintiffs virtually all of the relief sought in the complaint." The final resolution of the case involved the required "judicial imprimatur" required by Supreme Court precedent.
"At the end of the proceedings, plaintiffs had achieved precisely what they sought on an enduring basis, and that success was a result of plaintiffs’ efforts and court-enforced victories rather than defendant’s voluntary actions."
http://www.ca3.uscourts.gov/opinarch/064457p.pdf
Plaintiffs were the "prevailing party" under 42 USC sec. 1988 where they achieved relief on the merits of their claims in the form of a preliminary injunction, which was dissolved only after the defendant city passed a new ordinance, even though the case was dismissed by agreement of all parties without a final judgment in favor of plaintiffs. The City never pressed the court to reach a judgment on the merits and eventually acceded to all of plaintiffs' claims.
This decision is in line with that of "nearly every Court of Appeals to have the addressed the issue." The great majority of the courts have held that "relief obtained via a preliminary injunction can, under appropriate circumstances, render a party 'prevailing.'" Such circumstances existed here, where "(1) the trial court, based upon a finding of a likelihood of plaintiffs’ success on the merits, entered a judicially enforceable order granting plaintiffs virtually all the relief they sought, thereby materially altering the legal relationship between the parties; (2) the defendant, after opposing interim relief, chose not to appeal from that order and remained subject to its restrictions for a period of over two years; and (3) the defendant ultimately avoided final resolution of the merits of plaintiffs’ case by enacting new legislation giving plaintiffs virtually all of the relief sought in the complaint." The final resolution of the case involved the required "judicial imprimatur" required by Supreme Court precedent.
"At the end of the proceedings, plaintiffs had achieved precisely what they sought on an enduring basis, and that success was a result of plaintiffs’ efforts and court-enforced victories rather than defendant’s voluntary actions."
Monday, March 17, 2008
consumer - fraud - parol evidence - pleading
Jeffries v. Ameriquest Mortgage Co. - ED Pa. - February, 2008
http://www.paed.uscourts.gov/documents/opinions/08d0166p.pdf
Defendant's motion for summary judgment was denied on virtually all of plaintiff's claims in this "predatory lending lawsuit," because in each instance, there was found to be a genuine issue of material fact. Plaintiff's claims included negligence, fraud, TILA, HOEPA, RESPA, Pa. Fair Credit Extension Uniformity Act, and UTPCPL.
The opinion discusses both a) the problems raised by the Toy case, 928 A.2d 186 (Pa. 2007) concerning parol evidence, and b) the pleading requirements under the state CPL, 73 P.S. 201-1 et seq.
fraud, parol evidence, and Toy
The court held that under Toy, plaintiff would have to prove that she had justifiably relied on defendant's representations. "Jefferies argues that she alleges fraud in the execution, meaning that evidence of the oral statements can be properly introduced to show justifiable reliance." Fraud in the execution "is at issue where 'a party alleges that he was mistaken as to the terms and the actual contents of the agreement he executed due to the other’s fraud.' Toy, 928 A.2d at 205. For fraud in the inducement, 'a party alleges that he was induced into entering the agreement through the other’s fraud.' Id." The defendant did not address the issue and thus did not meet its burden of showing there was no genuine issue of material fact.
The court noted that '[u]nder the fraud exception to the parol evidence rule, 'parol evidence may be introduced to vary a writing meant to be the parties’ entire contract[] when a party avers that the contract is ambiguous or that a term was omitted from the contract because of fraud, accident or mistake.' Toy, 928 A.2d at 204. The [Pennsylvania Supreme Court] has only applied this exception to allegations of fraud in the execution, not to allegations of fraud in the inducement. Id. at 204-05. Thus, 'when fraud in the execution is alleged, representations made prior to contract formation are not considered superseded and disclaimed by a fully integrated written agreement, as they are when fraud in the inducement is asserted.' ” Id. at 206-07.
UPTCPL - justifiable reliance
Toy et al. hold that a plaintiff alleging violations of the CPL "must prove justifiable reliance, which is an element of common law fraud....Thus, to avoid summary judgment, [plaintiff] must be able to show that there is a genuine issue as to whether she justifiabily relied on the oral statements. In n. 33, the court reviews the issue of fraudulent v. deceptive and the amendment to the CPL, ending with the holding in Toy.
http://www.paed.uscourts.gov/documents/opinions/08d0166p.pdf
Defendant's motion for summary judgment was denied on virtually all of plaintiff's claims in this "predatory lending lawsuit," because in each instance, there was found to be a genuine issue of material fact. Plaintiff's claims included negligence, fraud, TILA, HOEPA, RESPA, Pa. Fair Credit Extension Uniformity Act, and UTPCPL.
The opinion discusses both a) the problems raised by the Toy case, 928 A.2d 186 (Pa. 2007) concerning parol evidence, and b) the pleading requirements under the state CPL, 73 P.S. 201-1 et seq.
fraud, parol evidence, and Toy
The court held that under Toy, plaintiff would have to prove that she had justifiably relied on defendant's representations. "Jefferies argues that she alleges fraud in the execution, meaning that evidence of the oral statements can be properly introduced to show justifiable reliance." Fraud in the execution "is at issue where 'a party alleges that he was mistaken as to the terms and the actual contents of the agreement he executed due to the other’s fraud.' Toy, 928 A.2d at 205. For fraud in the inducement, 'a party alleges that he was induced into entering the agreement through the other’s fraud.' Id." The defendant did not address the issue and thus did not meet its burden of showing there was no genuine issue of material fact.
The court noted that '[u]nder the fraud exception to the parol evidence rule, 'parol evidence may be introduced to vary a writing meant to be the parties’ entire contract[] when a party avers that the contract is ambiguous or that a term was omitted from the contract because of fraud, accident or mistake.' Toy, 928 A.2d at 204. The [Pennsylvania Supreme Court] has only applied this exception to allegations of fraud in the execution, not to allegations of fraud in the inducement. Id. at 204-05. Thus, 'when fraud in the execution is alleged, representations made prior to contract formation are not considered superseded and disclaimed by a fully integrated written agreement, as they are when fraud in the inducement is asserted.' ” Id. at 206-07.
UPTCPL - justifiable reliance
Toy et al. hold that a plaintiff alleging violations of the CPL "must prove justifiable reliance, which is an element of common law fraud....Thus, to avoid summary judgment, [plaintiff] must be able to show that there is a genuine issue as to whether she justifiabily relied on the oral statements. In n. 33, the court reviews the issue of fraudulent v. deceptive and the amendment to the CPL, ending with the holding in Toy.
attorney fees - civil rights - 42 USC 198
Enright v. Springfield School District - ED Pa. - March 13, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0293P.pdf
There is nothing very remarkable about this case, but it does review some relevant case law on sec . 1988 attorney fees and shows the kind of scrutiny that a fee petition might expect to get.
http://www.paed.uscourts.gov/documents/opinions/08D0293P.pdf
There is nothing very remarkable about this case, but it does review some relevant case law on sec . 1988 attorney fees and shows the kind of scrutiny that a fee petition might expect to get.
Thursday, March 13, 2008
consumer - warranty - reduction - limitation of action/time to sue - time of agreement
Hrycay v. Monaco Coach Co. - ED Pa. - March 7, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0272P.pdf
Plaintiffs bought a motor home on July 7, 2005, but did not take delivery/possession until July 15th, at which time they received a copy of a 12-month Limited Warranty, which required them to bring an enforcement action within 90 days after the expiration of the warranty. Plaintiffs allege that on July 7th, they were told only that the warranty was for 12 months, but nothing about about the further limitation about when they had to sue.
They had a lot of problems with the motor home, including an extended period in the shop and brought suit in May 2007 for breach of warranty, the Pennsylvania UTPCPL, 73 P.S. 201-1 et seq., and the Magnuson-Moss Warranty Improvement Act, 15 USC 2301.
Defendant/seller moved for summary judgment, arguing that plaintiffs had 15 months from the date of purchase to bring suit, i.e., on or before October 15, 2006. Plaintiffs argued that there was no "agreement" under UCC 2-725(a) to limit the period in which to bring a warranty claim, since they were not furnished with a copy of the limitation clause until after the date of purchase, July 7, 2005.
"Generally, the statute of limitations for breach of warranty claims is four years, 13 Pa. C.S. 2725(a). However, the UCC permits the statutory period to be reduced upon agreement of the parties to a period not less than one year. Id. Thus, the question before the Court is whether the parties reduced the limitations period by their original agreement. The UCC defines 'agreement” as “[t]he bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance as provided in this title.' 13 Pa. C.S. § 1201"
The court denied defendant's motion for summary judgment, holding that plaintiffs "presented enough evidence to constitute a genuine issue of material fact as to whether an 'agreement' existed between the parties to effectively reduce the statute of limitations from four years to one year and three months. The [plaintiffs] allege that there was no bargaining as to the terms of the warranty because they were completely unaware of the reduction in limitations clause [at the time they entered into the contract - July 7th] and were only given a copy of it after the date of sale [on the date of delivery]. If these allegations prove true, a reasonable jury could find that there was no bargain, and thus no agreement between the parties, which is required under the UCC to reduce the limitations period. Under these circumstances, the evidence presents a sufficient disagreement to require submission to the jury.
http://www.paed.uscourts.gov/documents/opinions/08D0272P.pdf
Plaintiffs bought a motor home on July 7, 2005, but did not take delivery/possession until July 15th, at which time they received a copy of a 12-month Limited Warranty, which required them to bring an enforcement action within 90 days after the expiration of the warranty. Plaintiffs allege that on July 7th, they were told only that the warranty was for 12 months, but nothing about about the further limitation about when they had to sue.
They had a lot of problems with the motor home, including an extended period in the shop and brought suit in May 2007 for breach of warranty, the Pennsylvania UTPCPL, 73 P.S. 201-1 et seq., and the Magnuson-Moss Warranty Improvement Act, 15 USC 2301.
Defendant/seller moved for summary judgment, arguing that plaintiffs had 15 months from the date of purchase to bring suit, i.e., on or before October 15, 2006. Plaintiffs argued that there was no "agreement" under UCC 2-725(a) to limit the period in which to bring a warranty claim, since they were not furnished with a copy of the limitation clause until after the date of purchase, July 7, 2005.
"Generally, the statute of limitations for breach of warranty claims is four years, 13 Pa. C.S. 2725(a). However, the UCC permits the statutory period to be reduced upon agreement of the parties to a period not less than one year. Id. Thus, the question before the Court is whether the parties reduced the limitations period by their original agreement. The UCC defines 'agreement” as “[t]he bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance as provided in this title.' 13 Pa. C.S. § 1201"
The court denied defendant's motion for summary judgment, holding that plaintiffs "presented enough evidence to constitute a genuine issue of material fact as to whether an 'agreement' existed between the parties to effectively reduce the statute of limitations from four years to one year and three months. The [plaintiffs] allege that there was no bargaining as to the terms of the warranty because they were completely unaware of the reduction in limitations clause [at the time they entered into the contract - July 7th] and were only given a copy of it after the date of sale [on the date of delivery]. If these allegations prove true, a reasonable jury could find that there was no bargain, and thus no agreement between the parties, which is required under the UCC to reduce the limitations period. Under these circumstances, the evidence presents a sufficient disagreement to require submission to the jury.
consumer - Health Club Act - excessive initiation fees - class certified
Allen v. Holiday Universal et al. - ED Pa. - March 11, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0283P.pdf
The court certified the class in this case, whose "upshot...is that the Health Clubs violated Section 2165 of the HCA [73 P.S. 2161 et seq.] by charging grossly excessive initiation fees. Section 2165 provides, in relevant part, that the amount of any initiation fees imposed by a health club shall be reasonably related to the club’s costs for establishing the initial membership[, and] shall not be imposed for the purpose of circumventing the requirements of this act."
http://www.paed.uscourts.gov/documents/opinions/08D0283P.pdf
The court certified the class in this case, whose "upshot...is that the Health Clubs violated Section 2165 of the HCA [73 P.S. 2161 et seq.] by charging grossly excessive initiation fees. Section 2165 provides, in relevant part, that the amount of any initiation fees imposed by a health club shall be reasonably related to the club’s costs for establishing the initial membership[, and] shall not be imposed for the purpose of circumventing the requirements of this act."
custody - effect of pornography - expert witness
A.J.B. v. M.P.B. - Superior Court - March 12, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/a02037_08.pdf
http://www.courts.state.pa.us/OpPosting/Superior/out/a02037_08.pdf
Wednesday, March 12, 2008
attorney fees - EAJA - payment to plaintiff v. payment to counsel
Vongphady v. Astrue - ED Pa. - March 11, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0280P.pdf
The language of the EAJA dictates that attorney fees are to be awarded to the plaintiff and not plaintiff's counsel. This conclusion is supported by Congressional intent and case law from the Third, Eight, Tenth, and Federal Circuits.
Sixth Circuit decisions that attorney fees under EAJA are awarded for the benefit of the party, but are not for the party to keep and can be directly awarded to the attorney, are inconsistent with the language of the statute. Unlike attorney fees paid pursuant to 42 U.S.C. § 406(b) that are paid directly to the attorney out of the plaintiff’s social security benefits, the fees paid pursuant to EAJA are a punishment to the government for taking a position that was not substantially justified and are paid out of the Social Security Administration’s funds to the plaintiff. See, e.g., Phillips v. GSA, 924 F.2d 1577, 1582 (Fed.Cir. 1991) (Attorney fees awarded pursuant to EAJA must be awarded to the prevailing party, not the attorney, and if they were awarded, the plaintiff had an obligation to turn them over to the attorney.)
http://www.paed.uscourts.gov/documents/opinions/08D0280P.pdf
The language of the EAJA dictates that attorney fees are to be awarded to the plaintiff and not plaintiff's counsel. This conclusion is supported by Congressional intent and case law from the Third, Eight, Tenth, and Federal Circuits.
Sixth Circuit decisions that attorney fees under EAJA are awarded for the benefit of the party, but are not for the party to keep and can be directly awarded to the attorney, are inconsistent with the language of the statute. Unlike attorney fees paid pursuant to 42 U.S.C. § 406(b) that are paid directly to the attorney out of the plaintiff’s social security benefits, the fees paid pursuant to EAJA are a punishment to the government for taking a position that was not substantially justified and are paid out of the Social Security Administration’s funds to the plaintiff. See, e.g., Phillips v. GSA, 924 F.2d 1577, 1582 (Fed.Cir. 1991) (Attorney fees awarded pursuant to EAJA must be awarded to the prevailing party, not the attorney, and if they were awarded, the plaintiff had an obligation to turn them over to the attorney.)
support - arrears - attachment - monetary award - "net proceeds" - 23 Pa. C.S. 4308.1
Faust v. Walker - Superior Court - March 11, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/s03032_08.pdf
Support defendant, who had $12,000 support arrearage, settled personal injury case for $10,000. Trial court order of attachment of $1,800.93 was correct under the applicable statute, 23 Pa. C.S. 4308.1, which defines “net proceeds.”
http://www.courts.state.pa.us/OpPosting/Superior/out/s03032_08.pdf
Support defendant, who had $12,000 support arrearage, settled personal injury case for $10,000. Trial court order of attachment of $1,800.93 was correct under the applicable statute, 23 Pa. C.S. 4308.1, which defines “net proceeds.”
Tuesday, March 11, 2008
contracts - fraud - parol evidence - integration clause
Bray v. Dewese - ED Pa. - March 6, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0263P.pdf
When plaintiff sued on a promissory note, defendant counterclaimed for fraudulent inducement and common law fraud concerning alleged misrepresentations about the financial health of a company in which defendant then bought shares.
The court held that the parol evidence rules bars admission of evidence in support of defendant's claim that plaintiff misrepresented or omitted certain facts during pre-contract discussions. The counterclaim did not contain any specific allegations about any facts that plaintiff allegedly misrepresented in the contract, which contained an integration clause stating that it was the entire agreement, and that there were no representations, warranties or covenants except as set forth in the agreement.
The court cited Dayhoff, Inc. v. H.J Heinz Co., 86 F.3d 1287, 1300 (3d Cir. 1996), and Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 206 (Pa. 2007), as setting forth the applicable rule in Pennsylvania that "the parol evidence rule bars consideration of prior representations concerning matters covered in a written contract, even those alleged to have been made fraudulently, unless the representations were fraudulently omitted from the contract." (emphasis in original). Defendant did not claim any such fraudulent omission. "Accordingly, since the Agreement contains an integration clause, Defendant may not offer evidence of Plaintiff's prior misrepresentations and omissions to prove his fraud counterclaims, and Plaintiff's motion to dismiss will be granted."
In n. 6, the court contrasts the Pennsylvania rule with the "general rule, adopted in most jurisdictions,...that fraud is an exception to the parol evidence rule. See 11 Williston on Contracts § 33:14 (4th ed.) (The parol evidence rule “permits the admission of facts that negate mutuality of assent, such as duress or fraud”); Parol-evidence rule; Right to show fraud in inducement or execution of written contract, 56 A.L.R. 13 (“It is a general rule, supported by many decisions, that as fraud vitiates any contract or transaction into which it enters, the doctrine that parol or extrinsic evidence is inadmissible to contradict, vary, or explain the terms of a written contract is inapplicable where the issue is whether the contract was procured by fraud.”). However, the Pennsylvania Supreme Court noted in Toy that 'while the fraud exception to the parol evidence rule potentially applies in two scenarios – fraud in the inducement, where a party alleges that he was induced into entering the agreement through the other’s fraud, and fraud in the execution, where a party alleges that he was mistaken as to the terms and the actual contents of the agreement he executed due to the other’s fraud – this Court has determined that in Pennsylvania, only fraud in the execution ... is excepted from the parol evidence rule’s operation.' Toy, 928 A.2d at 206. Compare, Mellon Bank Corp. v. First Union Real Estate, 951 F.2d 1399, 1408 (3d Cir. 1991), a pre-Toy case.
http://www.paed.uscourts.gov/documents/opinions/08D0263P.pdf
When plaintiff sued on a promissory note, defendant counterclaimed for fraudulent inducement and common law fraud concerning alleged misrepresentations about the financial health of a company in which defendant then bought shares.
The court held that the parol evidence rules bars admission of evidence in support of defendant's claim that plaintiff misrepresented or omitted certain facts during pre-contract discussions. The counterclaim did not contain any specific allegations about any facts that plaintiff allegedly misrepresented in the contract, which contained an integration clause stating that it was the entire agreement, and that there were no representations, warranties or covenants except as set forth in the agreement.
The court cited Dayhoff, Inc. v. H.J Heinz Co., 86 F.3d 1287, 1300 (3d Cir. 1996), and Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 206 (Pa. 2007), as setting forth the applicable rule in Pennsylvania that "the parol evidence rule bars consideration of prior representations concerning matters covered in a written contract, even those alleged to have been made fraudulently, unless the representations were fraudulently omitted from the contract." (emphasis in original). Defendant did not claim any such fraudulent omission. "Accordingly, since the Agreement contains an integration clause, Defendant may not offer evidence of Plaintiff's prior misrepresentations and omissions to prove his fraud counterclaims, and Plaintiff's motion to dismiss will be granted."
In n. 6, the court contrasts the Pennsylvania rule with the "general rule, adopted in most jurisdictions,...that fraud is an exception to the parol evidence rule. See 11 Williston on Contracts § 33:14 (4th ed.) (The parol evidence rule “permits the admission of facts that negate mutuality of assent, such as duress or fraud”); Parol-evidence rule; Right to show fraud in inducement or execution of written contract, 56 A.L.R. 13 (“It is a general rule, supported by many decisions, that as fraud vitiates any contract or transaction into which it enters, the doctrine that parol or extrinsic evidence is inadmissible to contradict, vary, or explain the terms of a written contract is inapplicable where the issue is whether the contract was procured by fraud.”). However, the Pennsylvania Supreme Court noted in Toy that 'while the fraud exception to the parol evidence rule potentially applies in two scenarios – fraud in the inducement, where a party alleges that he was induced into entering the agreement through the other’s fraud, and fraud in the execution, where a party alleges that he was mistaken as to the terms and the actual contents of the agreement he executed due to the other’s fraud – this Court has determined that in Pennsylvania, only fraud in the execution ... is excepted from the parol evidence rule’s operation.' Toy, 928 A.2d at 206. Compare, Mellon Bank Corp. v. First Union Real Estate, 951 F.2d 1399, 1408 (3d Cir. 1991), a pre-Toy case.
Monday, March 10, 2008
debt collection - FDCPA - verification of complaint by counsel - Pa. RCP 1024(c)
Phath v. Watson - ED Pa. - March 7, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0266P.pdf
Plaintiff, a former university student, sued the attorney who represented plaintiff's university in a state court suit for a tuition debt. Plaintiff alleged that the attorney violated the Fair Debt Collection Practices Act, 15 USC sec. 1692 et seq. by verifying a complaint as to which he had no personal knowledge and without complying with Pa. R.C.P. 1024(c), which requires a non-party verifier to "set forth the person's information as to matters not stated upon his knowledge and the reason why the verification is not made by a party." http://www.pacode.com/secure/data/231/chapter1000/chap1000toc.html#1024.
The attorney verified the state court complaint upon "knowledge, information and belief" but did not include the statements required by the Rule 1024(c). Plaintiff claimed that this made his verification false, deceptive and misleading, and rendered his actions unfair and unconscionable, by creating a false impression as to the source, authorization or approval of the state court complaint.
The court rejected defendant's argument that the FDCPA does not apply to litigation activities, including formal pleadings by attorneys, citing Heintz v. Jenkins, 514 U.S. 291, 294 (1995) and Piper v. Pornoff Law Assoc., 396 F.3d 227 (3d Cir. 2005), but granted his motion to dismiss, because the state rule allowed the attorney to verify the complaint on "information and belief" - a phrase the court said that plaintiff was trying to read out of the rule. The attorney's failure to follow Rule 1024(c) "to the letter" was held to not be deceptive, since the attorney's statement could reasonably have only one meaning.
The court also held that the verification did not create a false impression as to source, authorization or aapproval. Even though the verification did not strictly comport with the language of the rule, "this procedural error does not create a false impression....Moreover, this error if one that courts in Pennsylvania hold to be de minimis. Monroe Contract Corp v. Harrison Square, Inc., 405 A.2d 954, 958 (Pa. Super. 1979).
http://www.paed.uscourts.gov/documents/opinions/08D0266P.pdf
Plaintiff, a former university student, sued the attorney who represented plaintiff's university in a state court suit for a tuition debt. Plaintiff alleged that the attorney violated the Fair Debt Collection Practices Act, 15 USC sec. 1692 et seq. by verifying a complaint as to which he had no personal knowledge and without complying with Pa. R.C.P. 1024(c), which requires a non-party verifier to "set forth the person's information as to matters not stated upon his knowledge and the reason why the verification is not made by a party." http://www.pacode.com/secure/data/231/chapter1000/chap1000toc.html#1024.
The attorney verified the state court complaint upon "knowledge, information and belief" but did not include the statements required by the Rule 1024(c). Plaintiff claimed that this made his verification false, deceptive and misleading, and rendered his actions unfair and unconscionable, by creating a false impression as to the source, authorization or approval of the state court complaint.
The court rejected defendant's argument that the FDCPA does not apply to litigation activities, including formal pleadings by attorneys, citing Heintz v. Jenkins, 514 U.S. 291, 294 (1995) and Piper v. Pornoff Law Assoc., 396 F.3d 227 (3d Cir. 2005), but granted his motion to dismiss, because the state rule allowed the attorney to verify the complaint on "information and belief" - a phrase the court said that plaintiff was trying to read out of the rule. The attorney's failure to follow Rule 1024(c) "to the letter" was held to not be deceptive, since the attorney's statement could reasonably have only one meaning.
The court also held that the verification did not create a false impression as to source, authorization or aapproval. Even though the verification did not strictly comport with the language of the rule, "this procedural error does not create a false impression....Moreover, this error if one that courts in Pennsylvania hold to be de minimis. Monroe Contract Corp v. Harrison Square, Inc., 405 A.2d 954, 958 (Pa. Super. 1979).
Thursday, March 06, 2008
mortage foreclosure - forbearance agreement - statute of frauds
Strausser v. PRAMCO - Superior Court - March 3, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/s67045_07.pdf
An agreement to forbear from foreclosure represents an interest in land, such that the agreement is subject to the statute of frauds and must be in writing, signed by the party to be charged and sufficiently indicating the terms of the oral agreement so that there is no serious possibility of consummating fraud by its enforcement.
multiple documents - The writing requirement of the statute of frauds can be satisfied by an amalgam of several documents, any number of which can be taken together to make out the necessary written terms of the bargain, provided there is sufficient connection made out between the papers, without the aid of parol evidence, further than to identify papers to which reference is made, but not to supply a material term of the contract.
part performance - Payment and acceptance of regular monthly payments does not constitute part performance and does not take the alleged agreement out of the purview of the statute of frauds. The relevant "case law is very explicit as to the requirements which must be met to take an oral contract for real estate out of the statute. The terms of the contract must be shown by full, complete, and satisfactory proof. The evidence must...show performance or part performance...which could not be compensated in damages, and such as would make rescission inequitable and unjust....Appellant has not cited any case involving a contract to forbear foreclosure that was taken out of the statute of frauds by part performance and we are aware of none....The part performance advanced here by appellant, monthly payments of $300, is compensable in damages. We see no merit here."
promissory estoppel - The doctrine of estoppel cannot be invoked against the operation of the Statute of Frauds. Borrello v. Lauletta, 455 Pa. 350, 317 A.2d 254 (1974); Target Sportswear, Inc. v. Clearfield Foundation, 474 A.2d 1142 (Pa.Super. 1984).
http://www.courts.state.pa.us/OpPosting/Superior/out/s67045_07.pdf
An agreement to forbear from foreclosure represents an interest in land, such that the agreement is subject to the statute of frauds and must be in writing, signed by the party to be charged and sufficiently indicating the terms of the oral agreement so that there is no serious possibility of consummating fraud by its enforcement.
multiple documents - The writing requirement of the statute of frauds can be satisfied by an amalgam of several documents, any number of which can be taken together to make out the necessary written terms of the bargain, provided there is sufficient connection made out between the papers, without the aid of parol evidence, further than to identify papers to which reference is made, but not to supply a material term of the contract.
part performance - Payment and acceptance of regular monthly payments does not constitute part performance and does not take the alleged agreement out of the purview of the statute of frauds. The relevant "case law is very explicit as to the requirements which must be met to take an oral contract for real estate out of the statute. The terms of the contract must be shown by full, complete, and satisfactory proof. The evidence must...show performance or part performance...which could not be compensated in damages, and such as would make rescission inequitable and unjust....Appellant has not cited any case involving a contract to forbear foreclosure that was taken out of the statute of frauds by part performance and we are aware of none....The part performance advanced here by appellant, monthly payments of $300, is compensable in damages. We see no merit here."
promissory estoppel - The doctrine of estoppel cannot be invoked against the operation of the Statute of Frauds. Borrello v. Lauletta, 455 Pa. 350, 317 A.2d 254 (1974); Target Sportswear, Inc. v. Clearfield Foundation, 474 A.2d 1142 (Pa.Super. 1984).
support - modification - retroactive award - concealment of income
Krebs v. Krebs - Superior Court - March 5, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/a01020_08.pdf
The trial court should have awarded support for period prior to custodial parent's petition to modify, back to time when non-custodial parent first began to actively conceal the substantial increases in his income.
Under 23 Pa. C.S. sec. 4352(e) - "modification may be applied to an earlier period if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition."
Moreover, 23 Pa. C.S. sec. 4353 requires a party to a DR proceeding to report material changes in in her/his circumstances.
The custodial parent had no duty to ask for an earlier review of the support order, without then having any knowledge of the other party's change of circumstances or misrepresentation.
http://www.courts.state.pa.us/OpPosting/Superior/out/a01020_08.pdf
The trial court should have awarded support for period prior to custodial parent's petition to modify, back to time when non-custodial parent first began to actively conceal the substantial increases in his income.
Under 23 Pa. C.S. sec. 4352(e) - "modification may be applied to an earlier period if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition."
Moreover, 23 Pa. C.S. sec. 4353 requires a party to a DR proceeding to report material changes in in her/his circumstances.
The custodial parent had no duty to ask for an earlier review of the support order, without then having any knowledge of the other party's change of circumstances or misrepresentation.
Monday, March 03, 2008
consumer - motor vehicle salespersons - licensing - false statements about financing
Howard v. State Board of Vehicle Salespersons - Commonwealth Court - February 29, 2008 -- unreported
http://www.courts.state.pa.us/OpPosting/CWealth/out/1027CD07_2-29-08.pdf
The court upheld the revocation of the license of a motor vehicle salesperson, who had pleaded guilty to several crimes related to the sales of motor vehicles. The Board charged him with violating Section 19 of the Board of Vehicles Act, 63 P.S. sec. 818.19, which prohibits
a) making any substantial misrepresentation of material facts.
b) making any false promise of a character likely to influence, persuade or induce the sale of a vehicle.
c) having within five years prior to the application for or issuance of a license or while his current license is in force pleaded guilty . . . in a court of competent jurisdiction in this or any other state or Federal jurisdiction of forgery, embezzlement, obtaining money under false pretenses, extortion, conspiracy to defraud, bribery, odometer tampering or any other crime involving moral turpitude;
d) having failed or refused to account for moneys or other valuables belonging to others which have come into his possession arising out of the sale of vehicles. . . . .
e) having committed any act or engaged in conduct in connection with the sale of vehicles which clearly demonstrates unprofessional conduct or incompetency to operate as a licensee under this act.
In its decision, the Board said that it was especially concerned that the salesperson “knowingly misrepresented the financing portions of some vehicle transactions in order to take advantage of unsuspecting customers that placed their trust in him so as to allow [petitioner] to make personal financial gains. Specifically, [petitioner] made false promises regarding customers’ vehicle financing in order to obtain fraudulent bank loans in [his] name so that he could use those funds to purchase his own vehicle dealership."
The Board rejected petitioner's argument based on laches, since he had not raised it before the agency.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1027CD07_2-29-08.pdf
The court upheld the revocation of the license of a motor vehicle salesperson, who had pleaded guilty to several crimes related to the sales of motor vehicles. The Board charged him with violating Section 19 of the Board of Vehicles Act, 63 P.S. sec. 818.19, which prohibits
a) making any substantial misrepresentation of material facts.
b) making any false promise of a character likely to influence, persuade or induce the sale of a vehicle.
c) having within five years prior to the application for or issuance of a license or while his current license is in force pleaded guilty . . . in a court of competent jurisdiction in this or any other state or Federal jurisdiction of forgery, embezzlement, obtaining money under false pretenses, extortion, conspiracy to defraud, bribery, odometer tampering or any other crime involving moral turpitude;
d) having failed or refused to account for moneys or other valuables belonging to others which have come into his possession arising out of the sale of vehicles. . . . .
e) having committed any act or engaged in conduct in connection with the sale of vehicles which clearly demonstrates unprofessional conduct or incompetency to operate as a licensee under this act.
In its decision, the Board said that it was especially concerned that the salesperson “knowingly misrepresented the financing portions of some vehicle transactions in order to take advantage of unsuspecting customers that placed their trust in him so as to allow [petitioner] to make personal financial gains. Specifically, [petitioner] made false promises regarding customers’ vehicle financing in order to obtain fraudulent bank loans in [his] name so that he could use those funds to purchase his own vehicle dealership."
The Board rejected petitioner's argument based on laches, since he had not raised it before the agency.
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