Spadoni v. Easton Area School District - ED Pa. - May 22, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0587P.pdf
Pennsylvania does not recognize an independent cause of action for breach of the covenant of good faith and fair dealing. Temple Univ. Hosp., Inc. v. Group Health, Inc., 2006 WL 146426, at *5 (E.D. Pa. Jan. 12, 2006) (Pratter, J.) (quoting Lyon Fin. Servs. v. Woodlake Imaging, LLC, 2005 WL 331695, at *8 (E.D. Pa. Feb. 9, 2005) (Diamond, J.)).
“There may be an express or implied covenant of good faith and fair dealing in any contract between the parties, but if so, its breach is a breach of contract rather than an independent breach of duty of good faith and fair dealing.” Temple Univ. Hosp. Inc., 2006 WL 146426, at *5 (quoting Engstrom v. John Nuveen & Co., 668 F. Supp. 953, 958 (E.D. Pa. 1987)).
Because breach of the covenant of good faith and fair dealing is a breach of contract action, a complaint must allege the proper elements of a breach of contract action to survive a motion to dismiss. Temple Univ. Hosp., 2006 WL 146426, at *6 (citing McAllister v. Royal Carribean Cruises, Ltd., 2003 WL 23192102, at *4 (E.D. Pa. Sept. 30, 2003) (Kauffman, J.)).
Friday, May 30, 2008
disability - severity - remand
Bishop v. Astrue
http://www.paed.uscourts.gov/documents/opinions/08D0583P.pdf
I agree with the ALJ that there is little, if any, medical evidence supporting the level of disability alleged by plaintiff. I also respect that the ALJ’s credibility determination is entitled to deference.
However, I am bound by Third Circuit law which provides that benefits may be denied at step two of the sequential evaluation only if there are less than slight abnormalities which would have no more than a minimal effect on an individual's ability to work and that step two is designed to screen out only groundless claims.
In this case, resolving any doubt in favor of the applicant, as I must under the law, I find that based upon the record evidence, Bishop’s claim is not groundless and, thus, the ALJ legally erred when he found that Bishop’s trigeminal neuralgia/primary trochlear headache was not a severe impairment. Id. As a result, this case must be remanded to the ALJ to determine whether Bishop is disabled due to her severe impairment of trigeminal neuralgia/primary trochlear headache and other non-severe impairment.
Although due to the ALJ’s legal error this case must be remanded, I hesitate, for based on the record, I find it highly unlikely that Bishop’s impairments are severe enough to preclude all work. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)... ; Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)....However, it is not my duty to make the ultimate disability determination, as that decision is reserved solely for the Commissioner. 20 C.F.R. § 404.1527(e)(1). My role is limited to determining whether the decision of the ALJ is legally sufficient and supported by substantial evidence....Therefore, the case must be remanded in order for the ALJ to supplement his findings in a manner consistent with this opinion.
http://www.paed.uscourts.gov/documents/opinions/08D0583P.pdf
I agree with the ALJ that there is little, if any, medical evidence supporting the level of disability alleged by plaintiff. I also respect that the ALJ’s credibility determination is entitled to deference.
However, I am bound by Third Circuit law which provides that benefits may be denied at step two of the sequential evaluation only if there are less than slight abnormalities which would have no more than a minimal effect on an individual's ability to work and that step two is designed to screen out only groundless claims.
In this case, resolving any doubt in favor of the applicant, as I must under the law, I find that based upon the record evidence, Bishop’s claim is not groundless and, thus, the ALJ legally erred when he found that Bishop’s trigeminal neuralgia/primary trochlear headache was not a severe impairment. Id. As a result, this case must be remanded to the ALJ to determine whether Bishop is disabled due to her severe impairment of trigeminal neuralgia/primary trochlear headache and other non-severe impairment.
Although due to the ALJ’s legal error this case must be remanded, I hesitate, for based on the record, I find it highly unlikely that Bishop’s impairments are severe enough to preclude all work. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)... ; Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)....However, it is not my duty to make the ultimate disability determination, as that decision is reserved solely for the Commissioner. 20 C.F.R. § 404.1527(e)(1). My role is limited to determining whether the decision of the ALJ is legally sufficient and supported by substantial evidence....Therefore, the case must be remanded in order for the ALJ to supplement his findings in a manner consistent with this opinion.
Thursday, May 29, 2008
custody - relocation
Hogrelius v. Martin - Superior Court - May 29, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/s16015_08.pdf
The court affirmed a decision granting mother permission to move with child to Virginia, where they would live with mother's new husband.
A lot of the opinion dealt with economic factors, including the fact that the stepfather alone earned more than both parents combined.
The court also rejected father's claims that the proposed alternate arrangements for his partial custody were not adequate, because they involved a reduction in his custody time and a longer commute (5.5 hours each way). The court rejected this contention as well, stating:
In addressing this prong of the Gruber analysis, a court’s determination is not whether the alternative schedule would maintain the current level of the non-custodial parent’s interaction with the children, but rather whether the substitute arrangements “will foster adequately an ongoing relationship” between the non-custodial parent and the children....This Court addressed a similar contention in Goldfarb v. Goldfarb, 861 A.2d 340, 346 (Pa.Super. 2004), and concluded that the distance between the noncustodial parent and his relocated children is not the controlling concern. We stated, 'If it were, no necessity for a Gruber analysis would ever have arisen, as physical proximity would be a sine qua non of most if not all custody determinations.' Id. Thus, although an alternative custody schedule necessarily reduces the frequency of a parent’s interaction with a child because of the distance involved, relocation should not be denied for that reason alone....Gruber, 583 A.2d at 185-86. See also Ketterer v. Seifert, 902 A.2d 533, 539 (Pa.Super. 2006) (fact that move of considerable distance will increase cost and logistical problems of maintaining contact between non-custodial parent and child will not necessarily preclude relocation when other factors favor it).
The court found that the proposed custody schedule for the father -- alternating weekends, most holidays, and seven weeks during the summer, as well as alternate holidays, and during extended breaks from school - would increases father’s extended, overnight custody and would adequately foster a healthy relationship between father and child.
http://www.courts.state.pa.us/OpPosting/Superior/out/s16015_08.pdf
The court affirmed a decision granting mother permission to move with child to Virginia, where they would live with mother's new husband.
A lot of the opinion dealt with economic factors, including the fact that the stepfather alone earned more than both parents combined.
The court also rejected father's claims that the proposed alternate arrangements for his partial custody were not adequate, because they involved a reduction in his custody time and a longer commute (5.5 hours each way). The court rejected this contention as well, stating:
In addressing this prong of the Gruber analysis, a court’s determination is not whether the alternative schedule would maintain the current level of the non-custodial parent’s interaction with the children, but rather whether the substitute arrangements “will foster adequately an ongoing relationship” between the non-custodial parent and the children....This Court addressed a similar contention in Goldfarb v. Goldfarb, 861 A.2d 340, 346 (Pa.Super. 2004), and concluded that the distance between the noncustodial parent and his relocated children is not the controlling concern. We stated, 'If it were, no necessity for a Gruber analysis would ever have arisen, as physical proximity would be a sine qua non of most if not all custody determinations.' Id. Thus, although an alternative custody schedule necessarily reduces the frequency of a parent’s interaction with a child because of the distance involved, relocation should not be denied for that reason alone....Gruber, 583 A.2d at 185-86. See also Ketterer v. Seifert, 902 A.2d 533, 539 (Pa.Super. 2006) (fact that move of considerable distance will increase cost and logistical problems of maintaining contact between non-custodial parent and child will not necessarily preclude relocation when other factors favor it).
The court found that the proposed custody schedule for the father -- alternating weekends, most holidays, and seven weeks during the summer, as well as alternate holidays, and during extended breaks from school - would increases father’s extended, overnight custody and would adequately foster a healthy relationship between father and child.
UC - voluntary quit - "purely personal reasons"
Johnson v. UCBR - Commonwealth Court - May 29, 2008 - UNREPORTED DECISION
http://www.courts.state.pa.us/OpPosting/CWealth/out/27CD08_5-29-08.pdf
Claimant was denied UC benefits when she quit her part-time, weekend job without good cause under sec. 4021(b) of the UC Law. Her desire to spend more time with elderly family members was not good cause, in the absence of proof that her presence was required for them to get proper care. Her reason for leaving was thus "purely personal." She also failed to establish that she discussed the issue with her employer or made other efforts to preserve her job.
"Under certain circumstances, the family obligations of a claimant may constitute necessitous and compelling cause to quit employment. Du-Co Ceramics Co. v. UCBR, 546 Pa. 504, 686 A.2d 821 (1996).
For instance, in Pittsburgh Pipe and Coupling Company v. UCBR, 401 Pa. 501, 165 A.2d 374 (1960), the Supreme Court affirmed the granting of benefits to a claimant who quit his employment to return home and take care of his wife, who had suffered a disabling spinal injury, and their children.
Similarly, in Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000), we concluded that a claimant who quit his employment to move back in with his eleven-year-old son, who was having emotional and behavioral problems, established necessitous and compelling cause for quitting, thereby entitling him to unemployment compensation benefits.
We have also granted benefits to a claimant when he quit his employment to move back home, in part, to take care of his ailing father. Speck v. UCBR, 680 A.2d 27 (Pa. Cmwlth. 1996).
However, in Green v. UCBR, 529 A.2d 597 (Pa. Cmwlth. 1987), we explained that while family obligations may constitute a necessitous and compelling reason to leave one's employment, the reasons may not be purely personal."
http://www.courts.state.pa.us/OpPosting/CWealth/out/27CD08_5-29-08.pdf
Claimant was denied UC benefits when she quit her part-time, weekend job without good cause under sec. 4021(b) of the UC Law. Her desire to spend more time with elderly family members was not good cause, in the absence of proof that her presence was required for them to get proper care. Her reason for leaving was thus "purely personal." She also failed to establish that she discussed the issue with her employer or made other efforts to preserve her job.
"Under certain circumstances, the family obligations of a claimant may constitute necessitous and compelling cause to quit employment. Du-Co Ceramics Co. v. UCBR, 546 Pa. 504, 686 A.2d 821 (1996).
For instance, in Pittsburgh Pipe and Coupling Company v. UCBR, 401 Pa. 501, 165 A.2d 374 (1960), the Supreme Court affirmed the granting of benefits to a claimant who quit his employment to return home and take care of his wife, who had suffered a disabling spinal injury, and their children.
Similarly, in Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000), we concluded that a claimant who quit his employment to move back in with his eleven-year-old son, who was having emotional and behavioral problems, established necessitous and compelling cause for quitting, thereby entitling him to unemployment compensation benefits.
We have also granted benefits to a claimant when he quit his employment to move back home, in part, to take care of his ailing father. Speck v. UCBR, 680 A.2d 27 (Pa. Cmwlth. 1996).
However, in Green v. UCBR, 529 A.2d 597 (Pa. Cmwlth. 1987), we explained that while family obligations may constitute a necessitous and compelling reason to leave one's employment, the reasons may not be purely personal."
Wednesday, May 28, 2008
disability - findings and reasons
Levine v. Astrue - ED Pa. - March 27, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0368P.pdf
The court ordered a remand due to several unexplained conflicts and inconsistencies the ALJ’s findings, which are "not for an appellate court to explain....See Fargnoli v. Massanari, 247 F.3d 34, 41-42 (3d Cir. 2001)."
"Despite finding that the treating physician’s opinion was entitled to controlling weight, ...the ALJ did not discuss these limitations in his assessment of RFC, even though “a clear and satisfactory explanation” must accompany an ALJ’s finding of RFC. Fargnoli, 47 F.3d at 41....The ALJ’s opinion below is deficient in this respect because it does not specifically discuss the mental impairments the treating physician reported."
"The ALJ’s decision did not explain the conflict between the skill level the ALJ found plaintiff to have and the skill requirements of the jobs the VE testified the plaintiff could perform. The VE and the ALJ must explain such inconsistencies on the record, and if they have not, the matter must be remanded. See Burns, 312 F.3d at 127 (requiring that conflicts between an ALJ’s findings and the DOT definitions be explained “on the record and that the ALJ explain in his decision how the conflict was resolved”). This matter is therefore remanded so that the ALJ can explain these inconsistencies."
http://www.paed.uscourts.gov/documents/opinions/08D0368P.pdf
The court ordered a remand due to several unexplained conflicts and inconsistencies the ALJ’s findings, which are "not for an appellate court to explain....See Fargnoli v. Massanari, 247 F.3d 34, 41-42 (3d Cir. 2001)."
"Despite finding that the treating physician’s opinion was entitled to controlling weight, ...the ALJ did not discuss these limitations in his assessment of RFC, even though “a clear and satisfactory explanation” must accompany an ALJ’s finding of RFC. Fargnoli, 47 F.3d at 41....The ALJ’s opinion below is deficient in this respect because it does not specifically discuss the mental impairments the treating physician reported."
"The ALJ’s decision did not explain the conflict between the skill level the ALJ found plaintiff to have and the skill requirements of the jobs the VE testified the plaintiff could perform. The VE and the ALJ must explain such inconsistencies on the record, and if they have not, the matter must be remanded. See Burns, 312 F.3d at 127 (requiring that conflicts between an ALJ’s findings and the DOT definitions be explained “on the record and that the ALJ explain in his decision how the conflict was resolved”). This matter is therefore remanded so that the ALJ can explain these inconsistencies."
appeal - time - unreasonably short appeal period
Premier Comp Solutions, LLC v. Dept. of General Services - Commonwealth Court - May 28, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/570MD07_5-28-08.pdf
This case involves petitioner's challenge to respondent's award of a single-source contract, in which there was no public notice or competitive bidding, as required by Article III, sec. 22, of the state constitution. The case was brought in the the Commonwealth Court's original jurisdiction.
DGS filed POs, claiming that Premier did not challenge its decision within the 7-day period set out in the regulations. The court held that Premier did not have a legally enforceable interest and thus couldn't challenge the DGS decision in any event.
However, the court did discuss the 7-day appeal period, stating in dicta tha if Premier did have such an interest, then a statute
"foreclosing its right to challenge a contract within such a short period of time [seven (7) days] would implicate due process rights. See Luke v. Cataldi 593 Pa. 461, 932 A.2d 45 (2007). Moreover, such a remedy is not an available or adequate remedy. See Pentlong Corp. v. GLS Capital, Inc., 780 A.2d 734 (Pa. Cmwlth. 2001). If we were to hold otherwise, administrative agency decisions could be made virtually unchallengeable – a decision could made in secret making it impossible for any interested party to take an appeal."
Query: Could this issue be raised in the landlord-tenant context of the 10-day period to appeal an MDJ judgment?
http://www.courts.state.pa.us/OpPosting/CWealth/out/570MD07_5-28-08.pdf
This case involves petitioner's challenge to respondent's award of a single-source contract, in which there was no public notice or competitive bidding, as required by Article III, sec. 22, of the state constitution. The case was brought in the the Commonwealth Court's original jurisdiction.
DGS filed POs, claiming that Premier did not challenge its decision within the 7-day period set out in the regulations. The court held that Premier did not have a legally enforceable interest and thus couldn't challenge the DGS decision in any event.
However, the court did discuss the 7-day appeal period, stating in dicta tha if Premier did have such an interest, then a statute
"foreclosing its right to challenge a contract within such a short period of time [seven (7) days] would implicate due process rights. See Luke v. Cataldi 593 Pa. 461, 932 A.2d 45 (2007). Moreover, such a remedy is not an available or adequate remedy. See Pentlong Corp. v. GLS Capital, Inc., 780 A.2d 734 (Pa. Cmwlth. 2001). If we were to hold otherwise, administrative agency decisions could be made virtually unchallengeable – a decision could made in secret making it impossible for any interested party to take an appeal."
Query: Could this issue be raised in the landlord-tenant context of the 10-day period to appeal an MDJ judgment?
time - computation
Rodriguez v. Board of Probation and Parole - Commonwealth Court - May 28, 2008 - UNREPORTED DECISION
http://www.courts.state.pa.us/OpPosting/CWealth/out/2154CD07_5-28-08.pdf
In a case in which a prisoner challenged the actions of the Board as untimely, the court set out the regulatory and statutory rules for counting time:
1 Pa. Code § 31.1 sets forth how days are to be counted for time periods in regulations. It provides “in computing a period of time prescribed or allowed . . . regulations of the agency . . . ., the day of the act, event or default after which the designated period of time begins to run may not be included, . . . . The last day of the period so computed shall be included, unless it is Saturday, Sunday or a legal holiday in this Commonwealth, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday nor a holiday.”4
n. 4 - Section 1908 of the Statutory Construction Act, 1 Pa. C.S. §1908, counts days in statutes in the same manner. It provides: “When any period of time is referred to in any statute, such period in all cases, . . . shall be so computed as to exclude the first and include the last day of such period[.]”
http://www.courts.state.pa.us/OpPosting/CWealth/out/2154CD07_5-28-08.pdf
In a case in which a prisoner challenged the actions of the Board as untimely, the court set out the regulatory and statutory rules for counting time:
1 Pa. Code § 31.1 sets forth how days are to be counted for time periods in regulations. It provides “in computing a period of time prescribed or allowed . . . regulations of the agency . . . ., the day of the act, event or default after which the designated period of time begins to run may not be included, . . . . The last day of the period so computed shall be included, unless it is Saturday, Sunday or a legal holiday in this Commonwealth, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday nor a holiday.”4
n. 4 - Section 1908 of the Statutory Construction Act, 1 Pa. C.S. §1908, counts days in statutes in the same manner. It provides: “When any period of time is referred to in any statute, such period in all cases, . . . shall be so computed as to exclude the first and include the last day of such period[.]”
Tuesday, May 27, 2008
disability - remand - additional evidence, findings
Bauer-Cromartie v. Astrue - ED Pa. - May 21, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0565P.pdf
additional evidence
The court remanded the case because of the ALJ's failure to follow the Appeals Council's insructions to gather further evidence about one of claimant on plaintiff’s impairments. "[A]lthough the likelihood that plaintiff’s impairment meets the de minimus standard for severity is high, it is impossible for me to properly evaluate whether this is, in fact, the case. McCrea v. Commr., 370 F.3d 357, 360 (3d Cir. 2004)."
Pursuant to 20 C.F.R. § 404.1512(f), the court ordered the ALJ to obtain a "consultative exam and take any other appropriate measures needed to properly evaluate plaintiff’s claim including consultation with a medical expert and questioning of plaintiff at a hearing, if necessary," if "more salient records regarding the impairment are not available..."
statement of evidence to support findings
The court also ordered the to "clearly set forth the evidence supporting her physical RFC determination [concerning claimant's arthritis] and, if necessary, obtain a physical RFC statement from a medical professional." The ALJ had found that the now 62 year-old claimant could do medium work -- lifting 50 pounds occasionally and 25 pounds frequently -- in spite of her arthritis.
http://www.paed.uscourts.gov/documents/opinions/08D0565P.pdf
additional evidence
The court remanded the case because of the ALJ's failure to follow the Appeals Council's insructions to gather further evidence about one of claimant on plaintiff’s impairments. "[A]lthough the likelihood that plaintiff’s impairment meets the de minimus standard for severity is high, it is impossible for me to properly evaluate whether this is, in fact, the case. McCrea v. Commr., 370 F.3d 357, 360 (3d Cir. 2004)."
Pursuant to 20 C.F.R. § 404.1512(f), the court ordered the ALJ to obtain a "consultative exam and take any other appropriate measures needed to properly evaluate plaintiff’s claim including consultation with a medical expert and questioning of plaintiff at a hearing, if necessary," if "more salient records regarding the impairment are not available..."
statement of evidence to support findings
The court also ordered the to "clearly set forth the evidence supporting her physical RFC determination [concerning claimant's arthritis] and, if necessary, obtain a physical RFC statement from a medical professional." The ALJ had found that the now 62 year-old claimant could do medium work -- lifting 50 pounds occasionally and 25 pounds frequently -- in spite of her arthritis.
Friday, May 23, 2008
UC - willful misconduct - medical condition - expert testimony
Philadelphia Parking Authority v. UCBR - Commonwealth Cour - May 22, 2008 - UNREPORTED DECISION
http://www.courts.state.pa.us/OpPosting/CWealth/out/2157CD07_5-22-08.pdf
Reversing the referee and UCBR, the court held that a claimant who admitted to being habitually late did not establish good cause for this violation of the employer rules with her lay testimony about a medical condition - obsessive-compulsive disorder (OCD), holding that she needed expert testimony to prove the diagnosis and its effects.
"To meet its burden of proof in establishing willful misconduct as to the violation of a work rule, an employer must establish the existence of the rule, that the employee was aware of the rule and that the rule was violated....Once employer has met its burden, the burden shifts to the claimant to prove that the rule was unreasonable or that there was good cause for violating it."
The employer established the rule and claimant's violation. The court held that claimant did not establish good cause.
The court said that, while it was "sympathetic with Claimant, we cannot neglect the fact that Claimant failed to present expert testimony as to the nature of her mental disorder. Claimant merely testified that she had OCD, which caused her to wash her hands after each of her morning activities and, thus, caused her to be late for work. Expert testimony was needed to provide a proper diagnosis of Claimant’s mental disorder and to explain how the mental disorder affects Claimant’s judgment and behavior. Expert testimony was also necessary to explain how a diagnosis of OCD could cause a person to be habitually late for work involuntarily, i.e., why simply waking earlier would not rectify the problem or why the disorder would cause someone to be one hour late for work one day, but only thirty minutes late for work the following day. As Claimant failed to present sufficient evidence establishing that her OCD condition constituted good cause for violating Employer’s work rule regarding excessive tardiness, the Board erred in concluding that Claimant’s actions did not rise to the level of willful misconduct.
http://www.courts.state.pa.us/OpPosting/CWealth/out/2157CD07_5-22-08.pdf
Reversing the referee and UCBR, the court held that a claimant who admitted to being habitually late did not establish good cause for this violation of the employer rules with her lay testimony about a medical condition - obsessive-compulsive disorder (OCD), holding that she needed expert testimony to prove the diagnosis and its effects.
"To meet its burden of proof in establishing willful misconduct as to the violation of a work rule, an employer must establish the existence of the rule, that the employee was aware of the rule and that the rule was violated....Once employer has met its burden, the burden shifts to the claimant to prove that the rule was unreasonable or that there was good cause for violating it."
The employer established the rule and claimant's violation. The court held that claimant did not establish good cause.
The court said that, while it was "sympathetic with Claimant, we cannot neglect the fact that Claimant failed to present expert testimony as to the nature of her mental disorder. Claimant merely testified that she had OCD, which caused her to wash her hands after each of her morning activities and, thus, caused her to be late for work. Expert testimony was needed to provide a proper diagnosis of Claimant’s mental disorder and to explain how the mental disorder affects Claimant’s judgment and behavior. Expert testimony was also necessary to explain how a diagnosis of OCD could cause a person to be habitually late for work involuntarily, i.e., why simply waking earlier would not rectify the problem or why the disorder would cause someone to be one hour late for work one day, but only thirty minutes late for work the following day. As Claimant failed to present sufficient evidence establishing that her OCD condition constituted good cause for violating Employer’s work rule regarding excessive tardiness, the Board erred in concluding that Claimant’s actions did not rise to the level of willful misconduct.
admin. law - due process - notice of charges
Goslin v. State Board of Medicine - Commonwealth Court - May 23, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1830CD07_5-23-08.pdf
A registered nurse was charged by the State Board of Medicine with various offenses involving whether she was properly licensed to practice midwifery.
She was found to have violated a section of the law barring "practicing as a midwife without a license and for holding herself out to the public as a midwife."
She appealed, inter alia, on the ground that "the Board deprived her of due process by failing to provide notice that she was charged with violating" that section of the law. The Court agreed.
The court said that in an administrative proceeding, the essential elements of due process are notice and an opportunity to be heard.....The purpose of the notice requirement is to afford the person reasonable notice of the charges against her so that she will have sufficient opportunity to answer the charges....For such notice to be adequate, it must at the very least contain a sufficient listing and explanation of charges so that the individual can know against what charges she must defend herself if she can.
The court concluded that "[g]iven the different purposes" of the two statutes, the charges against the nurse the one act, did not give her adequate notice to defend against the offenses charged in the other, which she was found to have violated.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1830CD07_5-23-08.pdf
A registered nurse was charged by the State Board of Medicine with various offenses involving whether she was properly licensed to practice midwifery.
She was found to have violated a section of the law barring "practicing as a midwife without a license and for holding herself out to the public as a midwife."
She appealed, inter alia, on the ground that "the Board deprived her of due process by failing to provide notice that she was charged with violating" that section of the law. The Court agreed.
The court said that in an administrative proceeding, the essential elements of due process are notice and an opportunity to be heard.....The purpose of the notice requirement is to afford the person reasonable notice of the charges against her so that she will have sufficient opportunity to answer the charges....For such notice to be adequate, it must at the very least contain a sufficient listing and explanation of charges so that the individual can know against what charges she must defend herself if she can.
The court concluded that "[g]iven the different purposes" of the two statutes, the charges against the nurse the one act, did not give her adequate notice to defend against the offenses charged in the other, which she was found to have violated.
predatory lending - definitions - N.J. case
Nowosleska v. Steele, et al. - N.J. Superior Court, Appellate Division - May 19, 2008
http://www.judiciary.state.nj.us/opinions/a5759-06.pdf
Borrowers moved to open a default judgment entered against them in a case in which they "were induced to pay with the title to property valued at $405,000 in order to pay off debts totaling $145,000." The various transactions included a $50,000 fee to one of the lenders.
In its opinion opening the default judgment based on possible "grave injustice" and "equity and justice" under N.J. law, the court mentioned several definitions of "predatory lending," as follows:
While predatory lending is a general concept not subject to precise definition, one authority has described it as: a mismatch between the needs and capacity of the borrower . . . In essence, the loan does not fit the borrower, either because the borrower's underlying needs for the loan are not being met or the terms of the loan are so disadvantageous to that particular borrower that there is little likelihood that the borrower has the capability to repay the loan. Assocs. Home Equity Servs. , Inc. v. Troup, 343 N.J. Super. 254, 267 (App. Div. 2001) (quoting Daniel S. Ehrenberg, If the Loan Don't Fit, Don't Take It: Applying the Suitability Doctrine to the Mortgage Industry to Eliminate Predatory Lending, 10 J. Affordable Housing & Community Dev. L. 117, 119-20 (Winter 2001)).
HUD Treasury Task Force on Predatory Lending, Curbing Predatory Home Mortgage Lending 17-24 (2000) http://www.huduser.org/Publications/pdf/treasrpt.pdf discusses predatory lending in general and the difficulty in providing a definition of predatory lending. Predatory lending includes "the practice of making loans containing interest rates, fees or closing costs that are higher than they should be in light of the borrower's credit and net income, or containing other exploitative terms that the borrower does not comprehend." Henry v. Lehman Commercial Paper, Inc. 471 F.3d 977, 984 (9th Cir. 2006); see also Debra Pogrund Stark, Unmasking the Predatory Loan in Sheep's Clothing: A Legislative Proposal, 21 Harv. BlackLetter L.J. 129, 134 (2005) (stating that "predatory lending is the situation where a mortgage broker or mortgage lender engages in fraudulent, deceptive or sharp practices to induce borrowers (often the elderly or minorities) to enter into 'bad' loans," which would include loans that are overpriced, loans where there is no net economic benefit to the borrower, loans where the borrower cannot afford the payment so the lender is relying on the borrower's equity for payment, and loans with other exploitative terms not understood by the borrower).
http://www.judiciary.state.nj.us/opinions/a5759-06.pdf
Borrowers moved to open a default judgment entered against them in a case in which they "were induced to pay with the title to property valued at $405,000 in order to pay off debts totaling $145,000." The various transactions included a $50,000 fee to one of the lenders.
In its opinion opening the default judgment based on possible "grave injustice" and "equity and justice" under N.J. law, the court mentioned several definitions of "predatory lending," as follows:
While predatory lending is a general concept not subject to precise definition, one authority has described it as: a mismatch between the needs and capacity of the borrower . . . In essence, the loan does not fit the borrower, either because the borrower's underlying needs for the loan are not being met or the terms of the loan are so disadvantageous to that particular borrower that there is little likelihood that the borrower has the capability to repay the loan. Assocs. Home Equity Servs. , Inc. v. Troup, 343 N.J. Super. 254, 267 (App. Div. 2001) (quoting Daniel S. Ehrenberg, If the Loan Don't Fit, Don't Take It: Applying the Suitability Doctrine to the Mortgage Industry to Eliminate Predatory Lending, 10 J. Affordable Housing & Community Dev. L. 117, 119-20 (Winter 2001)).
HUD Treasury Task Force on Predatory Lending, Curbing Predatory Home Mortgage Lending 17-24 (2000) http://www.huduser.org/Publications/pdf/treasrpt.pdf discusses predatory lending in general and the difficulty in providing a definition of predatory lending. Predatory lending includes "the practice of making loans containing interest rates, fees or closing costs that are higher than they should be in light of the borrower's credit and net income, or containing other exploitative terms that the borrower does not comprehend." Henry v. Lehman Commercial Paper, Inc. 471 F.3d 977, 984 (9th Cir. 2006); see also Debra Pogrund Stark, Unmasking the Predatory Loan in Sheep's Clothing: A Legislative Proposal, 21 Harv. BlackLetter L.J. 129, 134 (2005) (stating that "predatory lending is the situation where a mortgage broker or mortgage lender engages in fraudulent, deceptive or sharp practices to induce borrowers (often the elderly or minorities) to enter into 'bad' loans," which would include loans that are overpriced, loans where there is no net economic benefit to the borrower, loans where the borrower cannot afford the payment so the lender is relying on the borrower's equity for payment, and loans with other exploitative terms not understood by the borrower).
Thursday, May 22, 2008
veterans - representation of claimants - accreditation - atty. fees - disagreement
http://edocket.access.gpo.gov/2008/pdf/E8-10779.pdf
SUMMARY: The Department of Veterans Affairs (VA) is amending its regulations governing the representation of claimants for veterans benefits in order to implement provisions of the Veterans Benefits, Health Care, and Information Technology Act of 2006, and to reorganize and clarify existing regulations.
As amended, the regulations establish the procedures and rules necessary for VA to facilitate the paid representation of claimants by accredited agents and attorneys after a Notice of Disagreement has been filed with respect to a case.
The purpose of these regulations is to fulfill Congress’ direction that agents and attorneys may be paid for services rendered after a Notice of Disagreement is filed with respect to a decision by an agency of original jurisdiction while ensuring that claimants for veterans benefits have responsible, qualified representation.
DATES: Effective Date: The final rule is effective June 23, 2008.
SUMMARY: The Department of Veterans Affairs (VA) is amending its regulations governing the representation of claimants for veterans benefits in order to implement provisions of the Veterans Benefits, Health Care, and Information Technology Act of 2006, and to reorganize and clarify existing regulations.
As amended, the regulations establish the procedures and rules necessary for VA to facilitate the paid representation of claimants by accredited agents and attorneys after a Notice of Disagreement has been filed with respect to a case.
The purpose of these regulations is to fulfill Congress’ direction that agents and attorneys may be paid for services rendered after a Notice of Disagreement is filed with respect to a decision by an agency of original jurisdiction while ensuring that claimants for veterans benefits have responsible, qualified representation.
DATES: Effective Date: The final rule is effective June 23, 2008.
Tuesday, May 20, 2008
social security - Ticket to Work and Self-Sufficiency Program - amendments
http://edocket.access.gpo.gov/2008/pdf/E8-10879.pdf
SUMMARY: We are revising our regulations for the Ticket to Work and Self-Sufficiency Program (Ticket to Work program), which was authorized by the Ticket to Work and Work Incentives Improvement Act of 1999.
The Ticket to Work program provides Social Security Disability Insurance and disabled Supplemental Security Income beneficiaries expanded options for access to employment services, vocational rehabilitation services, and other support services.
We are revising our prior rules to improve the overall effectiveness of the program to maximize the economic self-sufficiency of beneficiaries through work opportunities.
We have based these revisions on our projections of the future direction of the Ticket to Work program, our experience using the prior rules, and recommendations made by commenters on the program.
DATES: These final rules are effective July 21, 2008.
SUMMARY: We are revising our regulations for the Ticket to Work and Self-Sufficiency Program (Ticket to Work program), which was authorized by the Ticket to Work and Work Incentives Improvement Act of 1999.
The Ticket to Work program provides Social Security Disability Insurance and disabled Supplemental Security Income beneficiaries expanded options for access to employment services, vocational rehabilitation services, and other support services.
We are revising our prior rules to improve the overall effectiveness of the program to maximize the economic self-sufficiency of beneficiaries through work opportunities.
We have based these revisions on our projections of the future direction of the Ticket to Work program, our experience using the prior rules, and recommendations made by commenters on the program.
DATES: These final rules are effective July 21, 2008.
Monday, May 19, 2008
education - free eduction - child support is not "compensation"
Velazquez v. East Stroudsburg School District - Commonwealth Court - May 19, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1530CD07_5-19-08.pdf
Under 24 P.S. 13-1302 and 22 Pa. Code 11.19, a child has a right to attend school without payment of tuition in the district in which his custodial grandmother lives, despite grandmother's receipt of court-ordered support from one of his parents.
The child had lived with his grandmother for most of his life. The child's father was incarcerated and the mother was living in North Carolina or Florida. The grandmother received public assistance and was required to seek support from the parents. That support was not "compensation" for maintaining the child. Despite the receipt of support, the grandmother was "supporting the child gratis as if it were [her] own."
The trial court "mischaracterized the child support payments received by [the grandmother] as compensation to reach its erroneous conclusion that she did not support the child gratis as if he were her own child. Parents are liable for support of their children who are unemancipated and 18 years of age or younger, 23 Pa. C.S. §4321(2), and parents must provide for reasonable expenses of raising their children....The order imposed against the child's mother was for payment of child support to fulfill her obligation to provide child care expenses for the child, not to compensate the grandmother for her services."
Furthermore, grandmother was required to seek child support from the parents under 55 Pa. Code §187.23(b)....Her receipt of public assistance is not deemed personal compensation or gain, see 22 Pa. Code §11.19(a), and it would be absurd to conclude that the child support payments represent personal compensation when she was required to seek the payments in order to receive public assistance.
The case sub judice is clearly distinguishable from Brenner ex rel. Johnson v. West Shore School District, 780 A.2d 726 (Pa. Cmwlth. 2001). Unlike the parents in Brenner, the child's parents are not involved in any of the child's daily needs, and his mother provides only minimal child support. The father is incarcerated, and his mother resides out of state. The grandmother is the child's sole caregiver and provides all of his daily needs. She continuously supports him throughout the year, not merely during the school term, and she assumes all responsibilities for meeting school requirements and for making education-related decisions in the absence of his parents....The Brenner holding, therefore, does not support the School District's position.
The purpose of Section 1302 of the School Code is to prevent district 11 shopping....The evidence fails to establish, and the School District does not suggest, that grandmother was engaged in district shopping when she sought to re-enroll Jher grandson in the School District. Because grandmother established the child's entitlement to receive free school privileges in the School District, the Court concludes that the trial court committed an error of law and accordingly reverses its order.
This case was litigated by the Education Law Center in Philadelphia http://www.elc-pa.org/
http://www.courts.state.pa.us/OpPosting/CWealth/out/1530CD07_5-19-08.pdf
Under 24 P.S. 13-1302 and 22 Pa. Code 11.19, a child has a right to attend school without payment of tuition in the district in which his custodial grandmother lives, despite grandmother's receipt of court-ordered support from one of his parents.
The child had lived with his grandmother for most of his life. The child's father was incarcerated and the mother was living in North Carolina or Florida. The grandmother received public assistance and was required to seek support from the parents. That support was not "compensation" for maintaining the child. Despite the receipt of support, the grandmother was "supporting the child gratis as if it were [her] own."
The trial court "mischaracterized the child support payments received by [the grandmother] as compensation to reach its erroneous conclusion that she did not support the child gratis as if he were her own child. Parents are liable for support of their children who are unemancipated and 18 years of age or younger, 23 Pa. C.S. §4321(2), and parents must provide for reasonable expenses of raising their children....The order imposed against the child's mother was for payment of child support to fulfill her obligation to provide child care expenses for the child, not to compensate the grandmother for her services."
Furthermore, grandmother was required to seek child support from the parents under 55 Pa. Code §187.23(b)....Her receipt of public assistance is not deemed personal compensation or gain, see 22 Pa. Code §11.19(a), and it would be absurd to conclude that the child support payments represent personal compensation when she was required to seek the payments in order to receive public assistance.
The case sub judice is clearly distinguishable from Brenner ex rel. Johnson v. West Shore School District, 780 A.2d 726 (Pa. Cmwlth. 2001). Unlike the parents in Brenner, the child's parents are not involved in any of the child's daily needs, and his mother provides only minimal child support. The father is incarcerated, and his mother resides out of state. The grandmother is the child's sole caregiver and provides all of his daily needs. She continuously supports him throughout the year, not merely during the school term, and she assumes all responsibilities for meeting school requirements and for making education-related decisions in the absence of his parents....The Brenner holding, therefore, does not support the School District's position.
The purpose of Section 1302 of the School Code is to prevent district 11 shopping....The evidence fails to establish, and the School District does not suggest, that grandmother was engaged in district shopping when she sought to re-enroll Jher grandson in the School District. Because grandmother established the child's entitlement to receive free school privileges in the School District, the Court concludes that the trial court committed an error of law and accordingly reverses its order.
This case was litigated by the Education Law Center in Philadelphia http://www.elc-pa.org/
admin. law - impartial tribunal - right of expression - state constitution
Day v. Civil Service Commission - Commonwealth Court - May 19, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/550CD05_5-19-08.pdf
Police officer was dismissed after publicly criticizing fellow officers, contrary toi departmental regulations. The court upheld the civil service decision to dismiss the officer.
due process - impartial tribunal - state constitution
While rejecting his claim on the facts, the court recognized that under Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), due process is violated where prosecutorial and adjudicatory functions are commingled, and that "the due process rights of Pennsylvania citizens are broader than those afforded by the U.S. Constitution."
This was clarified in Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 538 Pa. 276, 648 A.2d 304 (1994), where the court said that: [T]he form of impermissible “appearance” of bias and partiality proscribed in Lyness must clearly be one that arises from an actual environment of commingled functions. Given the nature and constraints of our various governmental bodies, the question of due process reasonably involves an inquiry into the nature of the process actually provided. Id., 538 Pa. at 281-282, 648 A.2d at 307." However, the court found "no evidence whatsoever of a commingling of functions" in the case, "not even an appearance of impropriety."
right of expression - state constitution
A person's free speech rights under Article 1, Section 7 of Pennsylvania Constitution are "broader free expression rights than does the federal constitution. Pap’s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591 (2002). Notwithstanding this broader penumbra, Pennsylvania law allows an employer to implement a chain of command policy to regulate the time, manner, and place of expression....We must remember that speech can also constitute conduct, and an employee’s conduct, in the workplace, may be regulated by the employer. Fuller v. Borough of Waynesburg, 503 A.2d 1031 (Pa. Cmwlth. 1986)...."
In this case, the "department’s regulation, which prohibited criticism of the department made to the public rather than to the appropriate supervisory personnel, was not constitutionally overbroad. Id., at 1033, n.4. The chain of command policy regulating procedures to follow when making complaints of improper conduct by fellow officers and superiors is necessary for the orderly and efficient operation of paramilitary organizations, such as a police department."
http://www.courts.state.pa.us/OpPosting/CWealth/out/550CD05_5-19-08.pdf
Police officer was dismissed after publicly criticizing fellow officers, contrary toi departmental regulations. The court upheld the civil service decision to dismiss the officer.
due process - impartial tribunal - state constitution
While rejecting his claim on the facts, the court recognized that under Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), due process is violated where prosecutorial and adjudicatory functions are commingled, and that "the due process rights of Pennsylvania citizens are broader than those afforded by the U.S. Constitution."
This was clarified in Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 538 Pa. 276, 648 A.2d 304 (1994), where the court said that: [T]he form of impermissible “appearance” of bias and partiality proscribed in Lyness must clearly be one that arises from an actual environment of commingled functions. Given the nature and constraints of our various governmental bodies, the question of due process reasonably involves an inquiry into the nature of the process actually provided. Id., 538 Pa. at 281-282, 648 A.2d at 307." However, the court found "no evidence whatsoever of a commingling of functions" in the case, "not even an appearance of impropriety."
right of expression - state constitution
A person's free speech rights under Article 1, Section 7 of Pennsylvania Constitution are "broader free expression rights than does the federal constitution. Pap’s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591 (2002). Notwithstanding this broader penumbra, Pennsylvania law allows an employer to implement a chain of command policy to regulate the time, manner, and place of expression....We must remember that speech can also constitute conduct, and an employee’s conduct, in the workplace, may be regulated by the employer. Fuller v. Borough of Waynesburg, 503 A.2d 1031 (Pa. Cmwlth. 1986)...."
In this case, the "department’s regulation, which prohibited criticism of the department made to the public rather than to the appropriate supervisory personnel, was not constitutionally overbroad. Id., at 1033, n.4. The chain of command policy regulating procedures to follow when making complaints of improper conduct by fellow officers and superiors is necessary for the orderly and efficient operation of paramilitary organizations, such as a police department."
consumer - credit cards - bank overdrafts - proposed rules
http://edocket.access.gpo.gov/2008/pdf/E8-10247.pdf
SUMMARY: The Federal Reserve Board, Office of Thrift Savings, and National Credit Union Administration (collectively, the Agencies) are proposing to exercise their authority under section 5(a) of the Federal Trade Commission Act to prohibit unfair or deceptive acts or practices.
The proposed rule would prohibit institutions from engaging in certain acts or practices in connection with consumer credit cards accounts and overdraft services for deposit accounts.
This proposal evolved from the Board’s June 2007 Notice of Proposed Rule under the Truth in Lending Act and OTS’s August 2007 Advance Notice of Proposed Rulemaking under the Federal Trade Commission Act.
The proposed rule relates to other Board proposals under the Truth in Lending Act and the Truth in Savings Act, which are published elsewhere in today’s Federal Register.
DATES: Comments must be received on or before August 4, 2008.
SUMMARY: The Federal Reserve Board, Office of Thrift Savings, and National Credit Union Administration (collectively, the Agencies) are proposing to exercise their authority under section 5(a) of the Federal Trade Commission Act to prohibit unfair or deceptive acts or practices.
The proposed rule would prohibit institutions from engaging in certain acts or practices in connection with consumer credit cards accounts and overdraft services for deposit accounts.
This proposal evolved from the Board’s June 2007 Notice of Proposed Rule under the Truth in Lending Act and OTS’s August 2007 Advance Notice of Proposed Rulemaking under the Federal Trade Commission Act.
The proposed rule relates to other Board proposals under the Truth in Lending Act and the Truth in Savings Act, which are published elsewhere in today’s Federal Register.
DATES: Comments must be received on or before August 4, 2008.
Truth in Savings Act- overdrafts - proposed rule
http://edocket.access.gpo.gov/2008/pdf/E8-10243.pdf
SUMMARY: The Federal Reserve Board (Board) proposes to amend Regulation DD, which implements the Truth in Savings Act, and the staff commentary to the regulation, to provide additional disclosures about account terms and costs associated with overdrafts.
The proposed amendments would set forth content and timing requirements for a notice to consumers about any right to opt out of an institution’s overdraft service.
Requirements for disclosing overdraft fees on periodic statements would be expanded to apply to all institutions and not solely to institutions that promote the payment of overdrafts.
The proposed amendments also address balance disclosures provided in response to balance inquiries from consumers.
DATES: Comments must be received on or before July 18, 2008.
SUMMARY: The Federal Reserve Board (Board) proposes to amend Regulation DD, which implements the Truth in Savings Act, and the staff commentary to the regulation, to provide additional disclosures about account terms and costs associated with overdrafts.
The proposed amendments would set forth content and timing requirements for a notice to consumers about any right to opt out of an institution’s overdraft service.
Requirements for disclosing overdraft fees on periodic statements would be expanded to apply to all institutions and not solely to institutions that promote the payment of overdrafts.
The proposed amendments also address balance disclosures provided in response to balance inquiries from consumers.
DATES: Comments must be received on or before July 18, 2008.
FTC - FCRA - risk-based pricing - proposed rule
http://edocket.access.gpo.gov/2008/pdf/E8-10640.pdf
SUMMARY: The Board and the Commission are publishing for comment proposed rules to implement the risk-based pricing provisions in section 311 of the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), which amends the Fair Credit Reporting Act (FCRA).
The proposed rules generally require a creditor to provide a risk-based pricing notice to a consumer when the creditor uses a consumer report to grant or extend credit to the consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that creditor.
The proposed rules also provide for two alternative means by which creditors can determine when they are offering credit on material terms that are materially less favorable.
The proposed rules also include certain exceptions to the general rule, including exceptions for creditors that provide a consumer with a disclosure of the consumer’s credit score in conjunction with additional information that provides context for the credit score disclosure.
DATES: Comments must be received on or before August 18, 2008.
SUMMARY: The Board and the Commission are publishing for comment proposed rules to implement the risk-based pricing provisions in section 311 of the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), which amends the Fair Credit Reporting Act (FCRA).
The proposed rules generally require a creditor to provide a risk-based pricing notice to a consumer when the creditor uses a consumer report to grant or extend credit to the consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that creditor.
The proposed rules also provide for two alternative means by which creditors can determine when they are offering credit on material terms that are materially less favorable.
The proposed rules also include certain exceptions to the general rule, including exceptions for creditors that provide a consumer with a disclosure of the consumer’s credit score in conjunction with additional information that provides context for the credit score disclosure.
DATES: Comments must be received on or before August 18, 2008.
Truth in Lending - credit cards - proposed rule
http://edocket.access.gpo.gov/2008/pdf/E8-10242.pdf
SUMMARY: On June 14, 2007, the Board published proposed amendments to Regulation Z, which implements the Truth in Lending Act (TILA), and to the staff commentary to the regulation, following a comprehensive review of TILA’s rules for open-end (revolving) credit that is not home-secured.
The proposed revisions addressed disclosures provided with credit card applications and solicitations, at account-opening, on periodic statements, when terms are changed on an account, and in advertisements.
The Board is seeking comment on a limited number of additional revisions to the regulation and commentary. New proposed amendments address creditors’ responsibilities to establish reasonable instructions for receiving timely payments and when a due date falls on a weekend or holiday.
Creditors’ responsibilities when investigating a claim of unauthorized transactions or an allegation of a billing error are also addressed.
Advertisements for deferred interest plans would be required to provide additional information about how interest could be imposed.
Comments submitted to the Board in response to the June 2007 proposed revisions remain under consideration by the Board and need not be submitted a second time.
DATES: Comments must be received on or before July 18, 2008.
SUMMARY: On June 14, 2007, the Board published proposed amendments to Regulation Z, which implements the Truth in Lending Act (TILA), and to the staff commentary to the regulation, following a comprehensive review of TILA’s rules for open-end (revolving) credit that is not home-secured.
The proposed revisions addressed disclosures provided with credit card applications and solicitations, at account-opening, on periodic statements, when terms are changed on an account, and in advertisements.
The Board is seeking comment on a limited number of additional revisions to the regulation and commentary. New proposed amendments address creditors’ responsibilities to establish reasonable instructions for receiving timely payments and when a due date falls on a weekend or holiday.
Creditors’ responsibilities when investigating a claim of unauthorized transactions or an allegation of a billing error are also addressed.
Advertisements for deferred interest plans would be required to provide additional information about how interest could be imposed.
Comments submitted to the Board in response to the June 2007 proposed revisions remain under consideration by the Board and need not be submitted a second time.
DATES: Comments must be received on or before July 18, 2008.
Friday, May 16, 2008
support - paternity - estoppel - right to hearing
Lebanon County CYW v. Wagner - Superior Court - May 14, 2008
http://www.phfa.org/consumers/homeowners/real.aspx
“[I]n any child support matter in which paternity is denied on the grounds of estoppel, the trial court must conduct a hearing on the issue of estoppel and determine whether the mother is estopped from pursuing her claim against the alleged father.” Freedman v. McCandless, 654 A.2d 529, 533 (Pa. 1995) (emphasis added).
“Only when the doctrine of estoppel does not apply will the mother be permitted to proceed with a paternity claim against a putative father with the aid of a blood test.” Jones v. Trojak, 634 A.2d 201, 206 (Pa. 1993) (citation omitted). Thus, it was improper for the trial court to order genetic tests without providing Appellant a hearing on the issue of estoppel.
The fact that the child was in the custod of the county CYS is of no moment. The agency stands in the shoes of the parent and is bound by the parent's conduct concerning paternity.
http://www.phfa.org/consumers/homeowners/real.aspx
“[I]n any child support matter in which paternity is denied on the grounds of estoppel, the trial court must conduct a hearing on the issue of estoppel and determine whether the mother is estopped from pursuing her claim against the alleged father.” Freedman v. McCandless, 654 A.2d 529, 533 (Pa. 1995) (emphasis added).
“Only when the doctrine of estoppel does not apply will the mother be permitted to proceed with a paternity claim against a putative father with the aid of a blood test.” Jones v. Trojak, 634 A.2d 201, 206 (Pa. 1993) (citation omitted). Thus, it was improper for the trial court to order genetic tests without providing Appellant a hearing on the issue of estoppel.
The fact that the child was in the custod of the county CYS is of no moment. The agency stands in the shoes of the parent and is bound by the parent's conduct concerning paternity.
Medicare - proposed revisions to Medicare Advantage and prescription drug benefit program
http://edocket.access.gpo.gov/2008/pdf/08-1244.pdf
SUMMARY: This proposed rule would make revisions to the Medicare Advantage (MA) program (Part C) and prescription drug benefit program (Part D).
The regulation contains new regulatory provisions regarding special needs plans, medical savings accounts (MSA) plans, and cost-sharing for dual eligible enrollees in the MA program, the prescription drug payment and novation processes in the Part D program, and the enrollment, appeals, and marketing processes for both programs.
We are proposing these changes based on lessons learned since 2006, the initial year of the prescription drug program and the revised MA program.
DATES: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on July 15, 2008.
SUMMARY: This proposed rule would make revisions to the Medicare Advantage (MA) program (Part C) and prescription drug benefit program (Part D).
The regulation contains new regulatory provisions regarding special needs plans, medical savings accounts (MSA) plans, and cost-sharing for dual eligible enrollees in the MA program, the prescription drug payment and novation processes in the Part D program, and the enrollment, appeals, and marketing processes for both programs.
We are proposing these changes based on lessons learned since 2006, the initial year of the prescription drug program and the revised MA program.
DATES: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on July 15, 2008.
Thursday, May 15, 2008
consumer - Fair Credit Reporting Act - degree of accuracy - causation of damages
Krajewski v. American Honda Finance Corp. and Trans Union, LLC - ED Pa. - May 2008
http://www.paed.uscourts.gov/documents/opinions/08D0495P.pdf
Plaintiff and her ex-husband bought a car, which got repossessed by AHFC after their adult son was arrested and the car, in the son's possession at the time, was seized by the police under the Controlled Substances law. AHFC then reported this to Trans Union, a credit reporting agency (CRA), which in turn marked plaintiff's consumer report as "RPO" meaning repossession.
Plaintiff disputed the characterization of "repossession," alleging that she had never missed any payments and that her credit report should not reflect a repo. Plaintiff tried to get a loan to pay the debt and redeem the car and alleges that she could not because of the "repossession" notation on the credit report. She filed two notices of dispute with the CRA.
Plaintiff sued AHFC and Trans Union on multiple causes of action. AHFC's motion for summary judgment was declined on most claims, because of disputed factual and legal issues, included whether plaintiff "exposed" the car to seizure, as prohibited in the contract.
Plaintiff's claims agains Trans Union included the following issues.
Fair Credit Reporting Act - 15 USC 1681 et seq. - technical accuracy v. maximum possible accuracy
Under sec. 1681e(b) of the FCRA, "[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”
To prevail on a claim of negligent failure to comply with § 1681e(b), a plaintiff must show the following four elements: (1) that “inaccurate information was included in a consumer’s credit report,” (2) that “the inaccuracy was due to defendant’s failure to follow reasonable procedures to assure maximum possible accuracy,” (3) that “the consumer suffered injury,” and (4) that “the consumer’s injury was caused by the inclusion of the inaccurate entry”....Trans Union argues that it is entitled to summary judgment because the information was accurate, meaning that plaintiff cannot show the first element.
A plaintiff cannot sustain a claim to enforce § 1681e(b) without showing an inaccuracy in her credit report. Whether the accuracy requirement of § 1681e(b) merely requires technical accuracy or requires something more has not been clarified by either the United States Supreme Court or the Third Circuit. Plaintiff urges this court to follow the D.C. Circuit’s reasoning in Koropoulos v. The Credit Bureau, Inc., 734 F.2d 37 (D.C. Cir. 1984), which rejected the technical accuracy defense in the context of a consumer reporting agency defendant. The court denied summary judgment for the consumer reporting agency where “there is a genuine issue of fact as to whether the report was sufficiently misleading so as to raise the issue of whether [the defendant’s] procedures for assuring ‘maximum possible accuracy’ were reasonable.” Id. at 42.
In rejecting the technical accuracy defense as applied to consumer reporting agencies, the D.C. Circuit based its conclusion on the FCRA’s requirement that consumer reporting agencies employ reasonable procedures to assure more than mere accuracy....The FCRA provides: “Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b) (emphasis added). District courts in the Eastern District of Pennsylvania have applied Koropoulos....I, too, will follow Koropoulos and deny summary judgment if “there is a genuine issue of material fact as to whether the report was . . . misleading.” 734 F.2d at 42.
Whether the credit report in the instant case is accurate and not misleading depends on the meaning of “repossession” as used in the report. “Repossession” is not defined by federal or Pennsylvania statute. It is defined by the dictionary as “the act of resuming possession of property when the purchaser fails to keep up payments on it.” Webster’s Third New International Dictionary 1926 (1981) (emphasis added). Similarly, one dictionary definition of the verb “repossess” is “to resume possession of (an item purchased on installment) in default of the payment of installments due.” Id. (emphasis added). Given these definitions, and applying the Koropoulos approach, a reasonable jury could conclude that Trans Union’s reporting was so misleading as to be inaccurate. Therefore, I will not grant Trans Union’s motion for summary judgment on the basis of the alleged accuracy of the report.
causation
Trans Union asserts in the alternative that “Trans Union is entitled to summary judgment on [p]laintiff’s claims of damages relating to credit denials in August 2006 because these allegedly occurred prior to her disputes”....Trans Union also asserts that “there is no evidence that an actual recipient of [p]laintiff’s consumer report was misled or would have acted on [p]laintiff’s application for credit differently if the reason why the repossession occurred had been included in [p]laintiff’s report.”
Plaintiff argues that, in the context of damages, Trans Union erroneously conflates § 1681i(a)’s reinvestigation requirement with § 1681e(b)’s reasonable procedures requirement. I agree. Section 1681 relates to “reasonable procedures to assure maximum possible accuracy” in reporting generally, 15 U.S.C. § 1681e(b), and so the time at which a consumer disputes the information is irrelevant to the § 1681e(b) analysis.
With respect to causation, a plaintiff need not “satisfy his burden only by introducing direct evidence that consideration of the inaccurate entry was crucial to the decision to deny credit”...Instead, a plaintiff need only “produce evidence from which a reasonable trier of fact could infer that the inaccurate entry was a ‘substantial factor’ that brought about the denial of credit.”
http://www.paed.uscourts.gov/documents/opinions/08D0495P.pdf
Plaintiff and her ex-husband bought a car, which got repossessed by AHFC after their adult son was arrested and the car, in the son's possession at the time, was seized by the police under the Controlled Substances law. AHFC then reported this to Trans Union, a credit reporting agency (CRA), which in turn marked plaintiff's consumer report as "RPO" meaning repossession.
Plaintiff disputed the characterization of "repossession," alleging that she had never missed any payments and that her credit report should not reflect a repo. Plaintiff tried to get a loan to pay the debt and redeem the car and alleges that she could not because of the "repossession" notation on the credit report. She filed two notices of dispute with the CRA.
Plaintiff sued AHFC and Trans Union on multiple causes of action. AHFC's motion for summary judgment was declined on most claims, because of disputed factual and legal issues, included whether plaintiff "exposed" the car to seizure, as prohibited in the contract.
Plaintiff's claims agains Trans Union included the following issues.
Fair Credit Reporting Act - 15 USC 1681 et seq. - technical accuracy v. maximum possible accuracy
Under sec. 1681e(b) of the FCRA, "[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”
To prevail on a claim of negligent failure to comply with § 1681e(b), a plaintiff must show the following four elements: (1) that “inaccurate information was included in a consumer’s credit report,” (2) that “the inaccuracy was due to defendant’s failure to follow reasonable procedures to assure maximum possible accuracy,” (3) that “the consumer suffered injury,” and (4) that “the consumer’s injury was caused by the inclusion of the inaccurate entry”....Trans Union argues that it is entitled to summary judgment because the information was accurate, meaning that plaintiff cannot show the first element.
A plaintiff cannot sustain a claim to enforce § 1681e(b) without showing an inaccuracy in her credit report. Whether the accuracy requirement of § 1681e(b) merely requires technical accuracy or requires something more has not been clarified by either the United States Supreme Court or the Third Circuit. Plaintiff urges this court to follow the D.C. Circuit’s reasoning in Koropoulos v. The Credit Bureau, Inc., 734 F.2d 37 (D.C. Cir. 1984), which rejected the technical accuracy defense in the context of a consumer reporting agency defendant. The court denied summary judgment for the consumer reporting agency where “there is a genuine issue of fact as to whether the report was sufficiently misleading so as to raise the issue of whether [the defendant’s] procedures for assuring ‘maximum possible accuracy’ were reasonable.” Id. at 42.
In rejecting the technical accuracy defense as applied to consumer reporting agencies, the D.C. Circuit based its conclusion on the FCRA’s requirement that consumer reporting agencies employ reasonable procedures to assure more than mere accuracy....The FCRA provides: “Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b) (emphasis added). District courts in the Eastern District of Pennsylvania have applied Koropoulos....I, too, will follow Koropoulos and deny summary judgment if “there is a genuine issue of material fact as to whether the report was . . . misleading.” 734 F.2d at 42.
Whether the credit report in the instant case is accurate and not misleading depends on the meaning of “repossession” as used in the report. “Repossession” is not defined by federal or Pennsylvania statute. It is defined by the dictionary as “the act of resuming possession of property when the purchaser fails to keep up payments on it.” Webster’s Third New International Dictionary 1926 (1981) (emphasis added). Similarly, one dictionary definition of the verb “repossess” is “to resume possession of (an item purchased on installment) in default of the payment of installments due.” Id. (emphasis added). Given these definitions, and applying the Koropoulos approach, a reasonable jury could conclude that Trans Union’s reporting was so misleading as to be inaccurate. Therefore, I will not grant Trans Union’s motion for summary judgment on the basis of the alleged accuracy of the report.
causation
Trans Union asserts in the alternative that “Trans Union is entitled to summary judgment on [p]laintiff’s claims of damages relating to credit denials in August 2006 because these allegedly occurred prior to her disputes”....Trans Union also asserts that “there is no evidence that an actual recipient of [p]laintiff’s consumer report was misled or would have acted on [p]laintiff’s application for credit differently if the reason why the repossession occurred had been included in [p]laintiff’s report.”
Plaintiff argues that, in the context of damages, Trans Union erroneously conflates § 1681i(a)’s reinvestigation requirement with § 1681e(b)’s reasonable procedures requirement. I agree. Section 1681 relates to “reasonable procedures to assure maximum possible accuracy” in reporting generally, 15 U.S.C. § 1681e(b), and so the time at which a consumer disputes the information is irrelevant to the § 1681e(b) analysis.
With respect to causation, a plaintiff need not “satisfy his burden only by introducing direct evidence that consideration of the inaccurate entry was crucial to the decision to deny credit”...Instead, a plaintiff need only “produce evidence from which a reasonable trier of fact could infer that the inaccurate entry was a ‘substantial factor’ that brought about the denial of credit.”
federal courts - 11th Amendment - statute of limitations - continuing violation
Larsen v. State Employee Retirement System - MD Pa. - May 15, 2008
http://www.pamd.uscourts.gov/opinions/jones/07v1838.pdf
In this § 1983 action by a former state supreme court justice concerning his pension, the court discuss two issues of general interest -- the Eleventh Amendment and the continuing-violations doctrine, as applied to the issue of the statute of limitations.
A. Eleventh Amendment Immunity
The Eleventh Amendment “has been interpreted to make states generally immune from suit by private parties in federal court.”... “This immunity extends to state agencies and departments.”...Eleventh Amendment immunity also extends to state officials sued in their official capacity because in such a case the state is the real party in interest.... Suits against state officials in their personal or individual capacity, however, are not barred by the Eleventh Amendment.
“Eleventh Amendment immunity is, however, subject to three primary exceptions: (1) congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers for prospective injunctive and declaratory relief to end an ongoing violation of federal law.”
Under the third exception, the doctrine of Ex parte Young, 209 U.S. 123 (1908), a suit against a state officer seeking prospective relief designed to end a continuing violation of federal law is not barred by the Eleventh Amendment under the theory that the action is not against the state because the alleged violation of federal law strips the officer of his official authority....Thus, for the doctrine to apply, the plaintiff must allege an ongoing violation of federal law....In addition, “[t]he relief sought must be prospective, declaratory, or injunctive relief governing an officer’s future conduct and cannot be retrospective, such as money damages.”
In determining whether the request relief falls within the Ex parte Young exception, a court must “look to the substance rather than the form of the relief sought.”....The doctrine applies only against state officials sued in their official capacities, not against states or state agencies....Further, “Young does not apply if, although the action is nominally against individual officers, the state is the real, substantial party in interest and the suit in fact is against the state.” ....“In determining whether the Ex parte Young doctrine avoids an Eleventh Amendment bar, the Supreme Court has made it quite clear that ‘a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’” The Supreme Court has also recognized, however, that “[f]or Eleventh Amendment purposes, the line between permitted and prohibited suits will often be indistinct.”
B. Statute of Limitations - the continuing-violations doctrine
“Actions brought under 42 U.S.C. § 1983 are governed by the personal injury statute of limitations of the state in which the cause of action accrued.”... The applicable Pennsylvania statute of limitations for personal injury actions is two years....
Although the applicable statute of limitations is borrowed from state law, “the accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law.” ... Rather, accrual of a § 1983 cause of action is “governed by federal rules conforming in general to common-law tort principles. Under those principles, it is the standard rule that accrual occurs when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief.”....Generally, therefore, “[a] section 1983 cause of action accrues when the plaintiff knew or should have known of the injury upon which its action is based.”....
Under Pennsylvania law, the limitations period is computed from the time an action accrues....A cause of action accrues when the plaintiff could have first maintained the action to a successful conclusion, and therefore the statute of limitations begins to run as soon as the right to institute and maintain a suit arises....Generally, this right arises when the plaintiff’s injury is inflicted....
[T]he untimeliness of the [plaintiff's] claims is apparent from the face of the complaint....[Plaintiff] argues, however, that his claims are saved from the statute of limitations by the continuing violations doctrine. This doctrine is an “equitable exception to the timely filing requirement”....Under this doctrine, “when a defendant’s conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred”....The doctrine is a narrow exception to the statute of limitations that is frequently invoked but rarely found.
“To establish that a claim falls within the continuing violations theory, the plaintiff must do two things. First, he must demonstrate that at least one act occurred within the filing period: The crucial question is whether any present violation exists. Next, the plaintiff must establish that the [alleged wrong] is more than the occurrence of isolated or sporadic acts”....
In examining this second step, “courts should consider at least three factors: (1) subject matter – whether the violations constitute the same type ..., tending to connect them in a continuing violation; (2) frequency – whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence – whether the act had a degree of permanence which should trigger the plaintiff’s awareness of and duty to assert his/her rights”....The third factor, permanence, is the most important....In considering this third factor, the court “must consider the policy rationale behind the statute of limitations. That is, the continuing violations doctrine should not provide a means for relieving plaintiffs from their duty to exercise reasonable diligence in pursuing their claims”....The burden is on the plaintiff to demonstrate that the continuing violations doctrine applies to toll the statute of limitations....
http://www.pamd.uscourts.gov/opinions/jones/07v1838.pdf
In this § 1983 action by a former state supreme court justice concerning his pension, the court discuss two issues of general interest -- the Eleventh Amendment and the continuing-violations doctrine, as applied to the issue of the statute of limitations.
A. Eleventh Amendment Immunity
The Eleventh Amendment “has been interpreted to make states generally immune from suit by private parties in federal court.”... “This immunity extends to state agencies and departments.”...Eleventh Amendment immunity also extends to state officials sued in their official capacity because in such a case the state is the real party in interest.... Suits against state officials in their personal or individual capacity, however, are not barred by the Eleventh Amendment.
“Eleventh Amendment immunity is, however, subject to three primary exceptions: (1) congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers for prospective injunctive and declaratory relief to end an ongoing violation of federal law.”
Under the third exception, the doctrine of Ex parte Young, 209 U.S. 123 (1908), a suit against a state officer seeking prospective relief designed to end a continuing violation of federal law is not barred by the Eleventh Amendment under the theory that the action is not against the state because the alleged violation of federal law strips the officer of his official authority....Thus, for the doctrine to apply, the plaintiff must allege an ongoing violation of federal law....In addition, “[t]he relief sought must be prospective, declaratory, or injunctive relief governing an officer’s future conduct and cannot be retrospective, such as money damages.”
In determining whether the request relief falls within the Ex parte Young exception, a court must “look to the substance rather than the form of the relief sought.”....The doctrine applies only against state officials sued in their official capacities, not against states or state agencies....Further, “Young does not apply if, although the action is nominally against individual officers, the state is the real, substantial party in interest and the suit in fact is against the state.” ....“In determining whether the Ex parte Young doctrine avoids an Eleventh Amendment bar, the Supreme Court has made it quite clear that ‘a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’” The Supreme Court has also recognized, however, that “[f]or Eleventh Amendment purposes, the line between permitted and prohibited suits will often be indistinct.”
B. Statute of Limitations - the continuing-violations doctrine
“Actions brought under 42 U.S.C. § 1983 are governed by the personal injury statute of limitations of the state in which the cause of action accrued.”... The applicable Pennsylvania statute of limitations for personal injury actions is two years....
Although the applicable statute of limitations is borrowed from state law, “the accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law.” ... Rather, accrual of a § 1983 cause of action is “governed by federal rules conforming in general to common-law tort principles. Under those principles, it is the standard rule that accrual occurs when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief.”....Generally, therefore, “[a] section 1983 cause of action accrues when the plaintiff knew or should have known of the injury upon which its action is based.”....
Under Pennsylvania law, the limitations period is computed from the time an action accrues....A cause of action accrues when the plaintiff could have first maintained the action to a successful conclusion, and therefore the statute of limitations begins to run as soon as the right to institute and maintain a suit arises....Generally, this right arises when the plaintiff’s injury is inflicted....
[T]he untimeliness of the [plaintiff's] claims is apparent from the face of the complaint....[Plaintiff] argues, however, that his claims are saved from the statute of limitations by the continuing violations doctrine. This doctrine is an “equitable exception to the timely filing requirement”....Under this doctrine, “when a defendant’s conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred”....The doctrine is a narrow exception to the statute of limitations that is frequently invoked but rarely found.
“To establish that a claim falls within the continuing violations theory, the plaintiff must do two things. First, he must demonstrate that at least one act occurred within the filing period: The crucial question is whether any present violation exists. Next, the plaintiff must establish that the [alleged wrong] is more than the occurrence of isolated or sporadic acts”....
In examining this second step, “courts should consider at least three factors: (1) subject matter – whether the violations constitute the same type ..., tending to connect them in a continuing violation; (2) frequency – whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence – whether the act had a degree of permanence which should trigger the plaintiff’s awareness of and duty to assert his/her rights”....The third factor, permanence, is the most important....In considering this third factor, the court “must consider the policy rationale behind the statute of limitations. That is, the continuing violations doctrine should not provide a means for relieving plaintiffs from their duty to exercise reasonable diligence in pursuing their claims”....The burden is on the plaintiff to demonstrate that the continuing violations doctrine applies to toll the statute of limitations....
drivers license - refusal to take breath test - jurisidiction to arrest
Taylor v. Penn DOT - Commonwealth Court
http://www.courts.state.pa.us/OpPosting/CWealth/out/1406CD07_5-15-08.pdf
In order to suspend a licensee’s operating privileges pursuant to 75 Pa.C.S. §1547(b), DOT has the burden of proving the following:
1) the licensee was arrested for violating Section 3802;
2) by a police officer who had reasonable grounds to believe that the license was operating a vehicle while in violation of Section 3802;
3) that the licensee was requested to submit to a chemical test;
4) that the licensee refused to do so; and
5) that the police officer fulfilled the duty imposed by 75 Pa.C.S. §1547(b)(2) by advising the licensee that his operating privileges would be suspended if he refused to submit to chemical testing…. Quick v. Department of Transportation, Bureau of Driver Licensing, 915 A.2d 1268, 1270 (Pa. Cmwlth. 2007).
In McKinley v. Department of Transportation, Bureau of Driver Licensing, 576 Pa. 85, 838 A.2d 700 (2003), the Pennsylvania Supreme Court rejected this Court’s determination that a person could be considered a police officer, even if he was acting outside of his jurisdiction, as long as he was an “officer in fact,” i.e., authorized with the power to arrest in another jurisdiction. Instead, the Pennsylvania Supreme Court determined that a police officer acting outside of his jurisdiction lacked the ability to act as a police officer and would not be treated as such. McKinley, 576 Pa. at 94, 838 A.2d at 706.
As the arresting officer did not have the authority to act as a police officer, DOT has failed to establish that Licensee was arrested by a police officer who had reasonable grounds to believe Licensee was DUI. Thus, we conclude that the trial court did not err in granting Licensee’s appeal from the suspension of his operating privilege. Accordingly, the order of the trial court is affirmed
http://www.courts.state.pa.us/OpPosting/CWealth/out/1406CD07_5-15-08.pdf
In order to suspend a licensee’s operating privileges pursuant to 75 Pa.C.S. §1547(b), DOT has the burden of proving the following:
1) the licensee was arrested for violating Section 3802;
2) by a police officer who had reasonable grounds to believe that the license was operating a vehicle while in violation of Section 3802;
3) that the licensee was requested to submit to a chemical test;
4) that the licensee refused to do so; and
5) that the police officer fulfilled the duty imposed by 75 Pa.C.S. §1547(b)(2) by advising the licensee that his operating privileges would be suspended if he refused to submit to chemical testing…. Quick v. Department of Transportation, Bureau of Driver Licensing, 915 A.2d 1268, 1270 (Pa. Cmwlth. 2007).
In McKinley v. Department of Transportation, Bureau of Driver Licensing, 576 Pa. 85, 838 A.2d 700 (2003), the Pennsylvania Supreme Court rejected this Court’s determination that a person could be considered a police officer, even if he was acting outside of his jurisdiction, as long as he was an “officer in fact,” i.e., authorized with the power to arrest in another jurisdiction. Instead, the Pennsylvania Supreme Court determined that a police officer acting outside of his jurisdiction lacked the ability to act as a police officer and would not be treated as such. McKinley, 576 Pa. at 94, 838 A.2d at 706.
As the arresting officer did not have the authority to act as a police officer, DOT has failed to establish that Licensee was arrested by a police officer who had reasonable grounds to believe Licensee was DUI. Thus, we conclude that the trial court did not err in granting Licensee’s appeal from the suspension of his operating privilege. Accordingly, the order of the trial court is affirmed
Social Security - income - stepparent - deeming
http://edocket.access.gpo.gov/2008/pdf/E8-10800.pdf
SUMMARY: We are changing the Supplemental Security Income (SSI) parent-to-child deeming rules so that we no longer will consider the income and resources of a stepparent when an eligible child resides in the household with a stepparent, but that child’s natural or adoptive parent has permanently left the household.
These rules respond to a decision by the United States Court of Appeals for the Second Circuit, codified in Social Security Acquiescence Ruling (AR) 99– 1(2), and establish a uniform national policy. Also, we are making uniform the age [22] at which we consider someone to be a ‘‘child’’ in SSI program regulations and are making other minor clarifications to our rules.
The decision of the United States Court of Appeals for the Second Circuit in Florez on Behalf of Wallace v. Callahan, 156 F.3d 438 (2d Cir. 1998), held that 20 CFR 416.1101 creates a two-part test for determining whether a spouse, who lives with a child eligible for SSI, is an ineligible parent for deeming purposes under 20 CFR 416.1160: (1) The spouse must live with the natural or adoptive parent; and (2) the relationship must be as husband or wife, as further defined in 20 CFR 416.1806.
The rule adopts the court’s rationale and changes the SSI parent-to-child deeming rules so that SSA no longer will consider the income and resources of a stepparent when an eligible child resides in the household with a stepparent, but that child’s natural or adoptive parent has permanently left the household.
DATES: This final rule is effective on June 16, 2008.
SUMMARY: We are changing the Supplemental Security Income (SSI) parent-to-child deeming rules so that we no longer will consider the income and resources of a stepparent when an eligible child resides in the household with a stepparent, but that child’s natural or adoptive parent has permanently left the household.
These rules respond to a decision by the United States Court of Appeals for the Second Circuit, codified in Social Security Acquiescence Ruling (AR) 99– 1(2), and establish a uniform national policy. Also, we are making uniform the age [22] at which we consider someone to be a ‘‘child’’ in SSI program regulations and are making other minor clarifications to our rules.
The decision of the United States Court of Appeals for the Second Circuit in Florez on Behalf of Wallace v. Callahan, 156 F.3d 438 (2d Cir. 1998), held that 20 CFR 416.1101 creates a two-part test for determining whether a spouse, who lives with a child eligible for SSI, is an ineligible parent for deeming purposes under 20 CFR 416.1160: (1) The spouse must live with the natural or adoptive parent; and (2) the relationship must be as husband or wife, as further defined in 20 CFR 416.1806.
The rule adopts the court’s rationale and changes the SSI parent-to-child deeming rules so that SSA no longer will consider the income and resources of a stepparent when an eligible child resides in the household with a stepparent, but that child’s natural or adoptive parent has permanently left the household.
DATES: This final rule is effective on June 16, 2008.
Tuesday, May 13, 2008
UC - subpoenas - testimony material to outcome
Horton v. UCBR - May 12, 2008 - Commonwealth Court
http://www.courts.state.pa.us/OpPosting/CWealth/out/1815CD07_7-21-08.pdf
Claimant was fired when he refused to obey a superior's order about processing incoming orders. Claimant alleged that the employer vice-president would testify about company policy and would establish good cause for his refusal to obey the order and requested that the referee issue a subpoena. The referee refused and found claimant guilty of willful misconduct.
The court reversed and remanded. "Whether the failure to issue a subpoena to allow the vice-president to testify was harmless error is determined by whether his testimony would have been material to the outcome of the case. Hussey Copper Ltd. v. Unemployment Compensation Board of Review, 718 A.2d 894 (Pa. Cmwlth. 1998).
'Given that it was the vice-president not claimant's supervisor that terminated him and was in charge of the policy, the Referee’s failure to allow Claimant to subpoena the vice-president regarding the company policy on receiving merchandise, what the V.P. had told Claimant about that policy when he hired him, and whether he was required to follow the directives of the supervisor to ignore the policy was not harmless error because it took away his ability to establish “good cause” for not following the supervisor's directive. Because the V.P.'s testimony was material to deciding the case, it was not harmless error to refuse the subpoena
http://www.courts.state.pa.us/OpPosting/CWealth/out/1815CD07_7-21-08.pdf
Claimant was fired when he refused to obey a superior's order about processing incoming orders. Claimant alleged that the employer vice-president would testify about company policy and would establish good cause for his refusal to obey the order and requested that the referee issue a subpoena. The referee refused and found claimant guilty of willful misconduct.
The court reversed and remanded. "Whether the failure to issue a subpoena to allow the vice-president to testify was harmless error is determined by whether his testimony would have been material to the outcome of the case. Hussey Copper Ltd. v. Unemployment Compensation Board of Review, 718 A.2d 894 (Pa. Cmwlth. 1998).
'Given that it was the vice-president not claimant's supervisor that terminated him and was in charge of the policy, the Referee’s failure to allow Claimant to subpoena the vice-president regarding the company policy on receiving merchandise, what the V.P. had told Claimant about that policy when he hired him, and whether he was required to follow the directives of the supervisor to ignore the policy was not harmless error because it took away his ability to establish “good cause” for not following the supervisor's directive. Because the V.P.'s testimony was material to deciding the case, it was not harmless error to refuse the subpoena
Sunday, May 11, 2008
insurance - misrepresentation - void ab initio
Cummings v. American General Life Insurance Co. - ED Pa. - May 6, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0507P.pdf
Held: Misrepresentation about past drug use is a material representation that justifies insurer in declaring policy void ab initio. The policy contained a clause stating that applicant's information was true and that the insurer could reduce or deny a claim which the insurer had relied of, if it materially affected the company's acceptance of the risk.
Pennsylvania courts “have held that an insurance policy obtained by means of a material misrepresentation will, if challenged within the period of contestability, be declared void ab initio....Under Pennsylvania law an insurance policy is void for misrepresentation when the insurer establishes three elements: (1) that the representation was false; (2) that the insured knew that the representation was false when made or made it in bad faith; and (3) that the representation was material to the risk being insured.”
Courts applying Pennsylvania law have routinely held that misrepresentations regarding alcohol abuse are deemed to be made in bad faith as a matter of law and extended this holding to include misrepresentations regarding drug use. ... The Third Circuit Court of Appeals equates alcohol abuse and drug abuse in the same manner.
Under Pennsylvania law, a misrepresentation does not have to be related to the eventual claim for which benefits are sought in order to be “material” for legal purposes. A statement is material if it is relevant to the risk assumed, even if it is unrelated to the loss actually incurred.
Any “misrepresented fact is material if being disclosed to the insurer it would have caused it to refuse the risk altogether or to demand a higher premium.”
The undisputed facts here, together with long-standing governing law, lead to the conclusion that decedent's past drug use would have led the insurer to deny decedent's insurance coverage and, thus, is a material fact .
http://www.paed.uscourts.gov/documents/opinions/08D0507P.pdf
Held: Misrepresentation about past drug use is a material representation that justifies insurer in declaring policy void ab initio. The policy contained a clause stating that applicant's information was true and that the insurer could reduce or deny a claim which the insurer had relied of, if it materially affected the company's acceptance of the risk.
Pennsylvania courts “have held that an insurance policy obtained by means of a material misrepresentation will, if challenged within the period of contestability, be declared void ab initio....Under Pennsylvania law an insurance policy is void for misrepresentation when the insurer establishes three elements: (1) that the representation was false; (2) that the insured knew that the representation was false when made or made it in bad faith; and (3) that the representation was material to the risk being insured.”
Courts applying Pennsylvania law have routinely held that misrepresentations regarding alcohol abuse are deemed to be made in bad faith as a matter of law and extended this holding to include misrepresentations regarding drug use. ... The Third Circuit Court of Appeals equates alcohol abuse and drug abuse in the same manner.
Under Pennsylvania law, a misrepresentation does not have to be related to the eventual claim for which benefits are sought in order to be “material” for legal purposes. A statement is material if it is relevant to the risk assumed, even if it is unrelated to the loss actually incurred.
Any “misrepresented fact is material if being disclosed to the insurer it would have caused it to refuse the risk altogether or to demand a higher premium.”
The undisputed facts here, together with long-standing governing law, lead to the conclusion that decedent's past drug use would have led the insurer to deny decedent's insurance coverage and, thus, is a material fact .
Friday, May 09, 2008
contracts - good faith and fair dealing
Pierce v. QVC, Inc. - ED Pa. - May 5, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0511P.pdf
Pennsylvania courts have adopted the general duty of good faith and fair dealing in the performance of a contract as found in the Restatement 2d, Contracts § 205, see, e.g., Somers v. Somers, 613 A.2d 1211, 1213 (Pa. Super. Ct. 1992), and the state UCC, 13 Pa. Cons. Stat. § 1203, imposes a similar requirement.
UCC §1203 provides that “[e]very contract or duty within this title imposes an obligation of good faith in its performance or enforcement.” “Good faith” is defined by statute as “[h]onesty in fact in the conduct or transaction concerned.” 13 Pa. C.S. §1201. As Pennsylvania courts and the Third Circuit have explained, however, “[t]he obligation to act in good faith in the performance of contractual duties varies somewhat with the context.”
Noting the U.C.C. definition of good faith, the Restatement explains that “[g]ood faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party . . . .” Restatement 2d, Contracts § 205 Cmt. a.
As the Third Circuit has explained, with "rare exception, the courts use the UCC good faith requirements in aid and furtherance of the parties’ agreement, not to override the parties’ agreement for reasons of fairness, policy, or morality. Thus, courts generally utilize the good faith duty as an interpretive tool to determine the parties’ justifiable expectations, and do not enforce an independent duty divorced from the specific clauses of the contract."
The comment to 13 Pa. C.S. §1203 notes that “the doctrine of good faith merely directs a court towards interpreting contracts within the commercial context in which they are created, performed, and enforced, and does not create a separate duty of fairness and reasonableness which can be independently breached.”
In fact, the Third Circuit and this Court have recognized an independent duty of good faith under Pennsylvania law only in “limited situations,” such as a confidential or fiduciary relationship.
Courts should “utilize the good faith duty as an interpretive tool to determine the parties’ justifiable expectations” and not to “override the parties’ agreement for reasons of fairness, policy, or morality,” which "would be contrary to the meaning of the duty of good faith found in the Restatement and Pennsylvania’s U.C.C."
http://www.paed.uscourts.gov/documents/opinions/08D0511P.pdf
Pennsylvania courts have adopted the general duty of good faith and fair dealing in the performance of a contract as found in the Restatement 2d, Contracts § 205, see, e.g., Somers v. Somers, 613 A.2d 1211, 1213 (Pa. Super. Ct. 1992), and the state UCC, 13 Pa. Cons. Stat. § 1203, imposes a similar requirement.
UCC §1203 provides that “[e]very contract or duty within this title imposes an obligation of good faith in its performance or enforcement.” “Good faith” is defined by statute as “[h]onesty in fact in the conduct or transaction concerned.” 13 Pa. C.S. §1201. As Pennsylvania courts and the Third Circuit have explained, however, “[t]he obligation to act in good faith in the performance of contractual duties varies somewhat with the context.”
Noting the U.C.C. definition of good faith, the Restatement explains that “[g]ood faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party . . . .” Restatement 2d, Contracts § 205 Cmt. a.
As the Third Circuit has explained, with "rare exception, the courts use the UCC good faith requirements in aid and furtherance of the parties’ agreement, not to override the parties’ agreement for reasons of fairness, policy, or morality. Thus, courts generally utilize the good faith duty as an interpretive tool to determine the parties’ justifiable expectations, and do not enforce an independent duty divorced from the specific clauses of the contract."
The comment to 13 Pa. C.S. §1203 notes that “the doctrine of good faith merely directs a court towards interpreting contracts within the commercial context in which they are created, performed, and enforced, and does not create a separate duty of fairness and reasonableness which can be independently breached.”
In fact, the Third Circuit and this Court have recognized an independent duty of good faith under Pennsylvania law only in “limited situations,” such as a confidential or fiduciary relationship.
Courts should “utilize the good faith duty as an interpretive tool to determine the parties’ justifiable expectations” and not to “override the parties’ agreement for reasons of fairness, policy, or morality,” which "would be contrary to the meaning of the duty of good faith found in the Restatement and Pennsylvania’s U.C.C."
employment - "infamous crimes" - crimen falsi - Article II, sec. 7
Cmwlth. v. Griffin - Pennsylvania Supreme Court - May 6, 2008
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-26-08mo.pdf
This quo warranto case concerns Article II, sec. 7, of the Pennsylvania Constitution, which provides that "[n]o person convicted of embezzlement of public moneys, bribery, perjury or other infamous crime shall be eligible to the General Assembly, or capable of holding any office of trust or profit in this Commonwealth."
The Court held that the respondent, a Philadelphia Municipal Court judge, who was convicted of two felonies in 1984 related to fraudulently procuring a credit card, was disqualified under Article II, sec. 7, from continuing to hold her office as judge.
infamous crimes -
In "the seminal decision of Commonwealth v. Shaver (Pa. 1842) after a thorough historical review, this Court ultimately described the category of infamous offenses as follows: The offences which disqualify a person to give evidence, when convicted of the same, are treason, felony, and every species of the crimen falsi--such as forgery, subornation of perjury, attaint of false verdict, and other offences of the like description, which involve the charge of falsehood and affect the public administration of justice."
The court here rejected respondent's claims that "the inclusion of all felonies and crimen falsi offenses within the constitutional classification...'appears to go too far' [and] that such crimes should only be considered as prohibiting the holding of public office if they undermine the administration of justice." The Court said that it "has consistently adhered to an interpretation in which felonies and crimen falsi offenses are distinct (albeit overlapping) categories, both of which contribute to the definition of infamous crimes.""
This also comports with the understanding of the term 'infamous' at common law. As one commentator has observed: [U]nder the early common law certain crimes were called “infamous” on account of the shameful status which resulted to the person convicted of one of them. Crimes which were regarded as infamous were treason, felonies, any offense tending to pervert the administration of justice, and such crimes as came within the general scope of the term “crimen falsi” of the Roman law, such as perjury, subornation of perjury, barratry, conspiracy, swindling, cheating, and other crimes of a kindred nature. M. C. Dransfield, Annotation, What is an Infamous Crime or One Involving Moral Turpitude Constituting Disqualification to Hold Public Office, 52 A.L.R.2d 1514, §2(a)
laches -
Laches bars relief when the plaintiff’s lack of due diligence in failing to timely institute an action results in prejudice to another. Because it is an affirmative defense, the burden of proof is on the defendant or respondent to demonstrate unreasonable delay and prejudice....Thus, “[t]he party asserting laches as a defense must present evidence demonstrating prejudice from a lapse of time . . . [such as] that a witness has died or become unavailable, that substantiating records were lost, or that the defendant has changed [her] position in anticipation the opposing party has waived his claims.” ...Furthermore, “[t]he question of laches is factual and is determined by examining the circumstances of each case.” ....[L]aches may be invoked in disciplinary proceedings for professional misconduct [although] it is less clear that it should ordinarily be deemed available relative to an Article II, Section 7 quo warranto action.
“Where the time delay is grossly unreasonable, the defendant’s burden of proof may be proportionately eased and the ‘necessity for specifics regarding prejudice or injury becomes less crucial.’”
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-26-08mo.pdf
This quo warranto case concerns Article II, sec. 7, of the Pennsylvania Constitution, which provides that "[n]o person convicted of embezzlement of public moneys, bribery, perjury or other infamous crime shall be eligible to the General Assembly, or capable of holding any office of trust or profit in this Commonwealth."
The Court held that the respondent, a Philadelphia Municipal Court judge, who was convicted of two felonies in 1984 related to fraudulently procuring a credit card, was disqualified under Article II, sec. 7, from continuing to hold her office as judge.
infamous crimes -
In "the seminal decision of Commonwealth v. Shaver (Pa. 1842) after a thorough historical review, this Court ultimately described the category of infamous offenses as follows: The offences which disqualify a person to give evidence, when convicted of the same, are treason, felony, and every species of the crimen falsi--such as forgery, subornation of perjury, attaint of false verdict, and other offences of the like description, which involve the charge of falsehood and affect the public administration of justice."
The court here rejected respondent's claims that "the inclusion of all felonies and crimen falsi offenses within the constitutional classification...'appears to go too far' [and] that such crimes should only be considered as prohibiting the holding of public office if they undermine the administration of justice." The Court said that it "has consistently adhered to an interpretation in which felonies and crimen falsi offenses are distinct (albeit overlapping) categories, both of which contribute to the definition of infamous crimes.""
This also comports with the understanding of the term 'infamous' at common law. As one commentator has observed: [U]nder the early common law certain crimes were called “infamous” on account of the shameful status which resulted to the person convicted of one of them. Crimes which were regarded as infamous were treason, felonies, any offense tending to pervert the administration of justice, and such crimes as came within the general scope of the term “crimen falsi” of the Roman law, such as perjury, subornation of perjury, barratry, conspiracy, swindling, cheating, and other crimes of a kindred nature. M. C. Dransfield, Annotation, What is an Infamous Crime or One Involving Moral Turpitude Constituting Disqualification to Hold Public Office, 52 A.L.R.2d 1514, §2(a)
laches -
Laches bars relief when the plaintiff’s lack of due diligence in failing to timely institute an action results in prejudice to another. Because it is an affirmative defense, the burden of proof is on the defendant or respondent to demonstrate unreasonable delay and prejudice....Thus, “[t]he party asserting laches as a defense must present evidence demonstrating prejudice from a lapse of time . . . [such as] that a witness has died or become unavailable, that substantiating records were lost, or that the defendant has changed [her] position in anticipation the opposing party has waived his claims.” ...Furthermore, “[t]he question of laches is factual and is determined by examining the circumstances of each case.” ....[L]aches may be invoked in disciplinary proceedings for professional misconduct [although] it is less clear that it should ordinarily be deemed available relative to an Article II, Section 7 quo warranto action.
“Where the time delay is grossly unreasonable, the defendant’s burden of proof may be proportionately eased and the ‘necessity for specifics regarding prejudice or injury becomes less crucial.’”
Friday, May 02, 2008
Fair Housing Act - reasonable accommodations - HUD/DOJ Joint Statement
http://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf
The Department of Justice ("DOJ") and the Department of Housing and Urban Development ("HUD") are jointly responsible for enforcing the federal Fair Housing Act, 42 U.S.C. §§ 3601-3619, which prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability.
One type of disability discrimination prohibited by the Act is a refusal to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises.
HUD and DOJ frequently respond to complaints alleging that housing providers have violated the Act by refusing reasonable modifications to persons with disabilities.
This Statement provides technical assistance regarding the rights and obligations of persons with disabilities and housing providers under the Act relating to reasonable modifications.
The Department of Justice ("DOJ") and the Department of Housing and Urban Development ("HUD") are jointly responsible for enforcing the federal Fair Housing Act, 42 U.S.C. §§ 3601-3619, which prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability.
One type of disability discrimination prohibited by the Act is a refusal to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises.
HUD and DOJ frequently respond to complaints alleging that housing providers have violated the Act by refusing reasonable modifications to persons with disabilities.
This Statement provides technical assistance regarding the rights and obligations of persons with disabilities and housing providers under the Act relating to reasonable modifications.
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