Weems v. UCBR - Commonwealth Court - publication ordered June 26, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1783CD07_6-26-08.pdf
A nine-month absence from work because of incarceration is willful misconduct, despite claimant's alleged eligibility for work release and employer's refusal to participate in the program.
While absenteeism alone does not constitute willful misconduct, "excessive absences and lack of good or adequate cause for the absence" can be. See Medina v. UCBR, 423 A.2d 469 (Pa. Cmwlth. 1980). Although the claimant told the employer that she would be serving a nine-month prison sentence for an assault conviction, her absence due to that incarceration "clearly constitutes excessive absence."
Imprisonment is not good or adequate cause for absence because “an employee who engages in criminal activity punishable by incarceration should realize that his ability to attend work may be jeopardized....It is the inability to attend work, not the criminal conduct, which supports the finding of willful misconduct....Thus, Claimant’s conduct did rise to the level of willful misconduct."
Claimant's alleged eligibility for work release not proven by her testimony
Claimant's testimony that she was eligible for work release was held to be insufficient to prove that she was, in fact, eligible, citing Cruz v. UCBR, 464 A.2d 656 (Pa. Cmwlth. 1983), where the court affirmed a denial of benefits "in part on the lack of any evidence of an order placing the claimant in such a program....Here, aside from Claimant’s testimony that she was eligible for work release, there is no evidence on the record of any court order related to a work release program. Even if such an order does exist, we are not aware of the limitations it might place on Claimant or the responsibilities it might impose on any potential employer."
Employer had a right to refuse to participate in the work release program
The court also rejected claimant's argument that the employer was "obligated to participate in a work release program. Employer cannot be expected to change the conditions of employment in order to accommodate Claimant. In finding the prohibition of unemployment benefits for incarcerated individuals constitutional, we suggested that the General Assembly 'could have felt that while on work release, because of restrictions necessarily imposed under those programs, prisoners were not sufficiently available for work so as to permit them to have a full range of employment options that other claimants have in pursuing new employment'....Employers need not adapt work release restrictions that change the terms of employment. The decision by Employer not to participate in a work release program does not excuse Claimant’s absence from work. Claimant had an obligation to report to work regardless of whether Employer agreed to participate in the work release program."
Thursday, June 26, 2008
mortgage foreclosure - equitable subrogation - Pennsylvania v. Restatement
1312466 Ontario Inc v. Carr - Superior Court - June 25, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/a14025_08.pdf
U.S. Bank, mortgagee in 4th lien position loaned property owner (p/o) money, which p/o used to pay off first and second mortgage lienors. US Bank was unaware of the 3rd lienor (Ontario), due to a negligent error in its title search.
When p/o defaulted on 3d mortgage, Ontario sued and got judgment in mortgage foreclosure.
US Bank then filed petition to intervene, claiming that it was entitled to "equitable subrogation" under Restatement 3d, Property 7.6, which says that "one who fully performs an obligation of another, secured by a mortgage, becomes by subrogation the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment." Such equitable subrogation is an exception to the "first in time" rule that generally determines the priority of a lien.
The trial and appellate courts rejected US Bank's petition, holding that it was not entitled to equitable subrogation under Pennsylvania law, as that doctrine is defined by Home Owners' Loan Corp. v. Crouse, 30 A.2d 330 (Pa. Super. 1943) and First Commonwealth Bank v. Heller, 863 A.2d 1153 (Pa. Super. 2004) -- which are different from the Restatement definition in important respects.
"Like many other jurisdictions," Pennsylvania requires "four criteria to be met for equitable subrogation to apply....These four requirements are:
(1) the claimant paid the creditor to protect his own interests;
(2) the claimant did not act as a volunteer;
(3) the claimant was not primarily liable for the debt; and
(4) allowing subrogation will not cause injustice to the rights of others."
The appellate court found that there were two "important" differences between Pennsylvania's interpretation of equitable subrogation and that in the Restatement.
a) voluntary agent - Under Pennsylvania cases, a creditor such as U.S. Bank is considered an “entirely voluntary agent with no interest in the property” The Restatement does not adopt the 'volunteer' rule but instead only requires that the subrogee paid the creditor to protect some interest. "Thus, under the Restatement, a mortgagee pays off existing loans in order to protect its own interest in gaining the first priority lien position, and therefore would be entitled to the remedy of equitable subrogation."
b) mistake - Another important difference between Pennsylvania law on equitable subrogation and the Restatement’s approach is also illustrated in the Home Owners’ decision, where the court said that “courts of equity will not relieve a party from the consequences of an error due to his own ignorance or carelessness when there were available means which would have enabled him to avoid the mistake if reasonable care had been exercised.... [A] creditor’s mistake 'can be attributed only to its own negligence in failing to search or discover what clearly appeared on the public records'....The Restatement, on the other hand, says that 'subrogation can be granted even if the payor had actual knowledge of the intervening interest; the payor’s notice, actual or constructive, is not necessarily relevant'....Instead, what is relevant under the Restatement is 'whether the payor reasonably expected to get security with a priority equal to the mortgage being paid.'....In fact, the Restatement declares that a refinancing mortgagee should be presumed to have this expectation, even if they are aware of a remaining lien, unless there is affirmative proof that the mortgagee intended to subordinate its mortgage to the remaining interest."
Although the court pointed out that existing state doctrine might sometimes lead to undesirable results*** and "may be ripe for legislative review," it determined that it was bound by its own prior decisions "and principles of stare decisis." The court was also influenced by "the fact that it was US Bank's carelessness that brought about the pecuniary loss that it is now facing."
*** The court posited that, given Pennsylvania doctrine, US Bank would not made the loan "leaving [borrower] in all likelihood unable to refinance his existing loan" -- a scenario that it thought "may be a frequent dilemma for homeowners amidst the current mortgage crisis....."
http://www.courts.state.pa.us/OpPosting/Superior/out/a14025_08.pdf
U.S. Bank, mortgagee in 4th lien position loaned property owner (p/o) money, which p/o used to pay off first and second mortgage lienors. US Bank was unaware of the 3rd lienor (Ontario), due to a negligent error in its title search.
When p/o defaulted on 3d mortgage, Ontario sued and got judgment in mortgage foreclosure.
US Bank then filed petition to intervene, claiming that it was entitled to "equitable subrogation" under Restatement 3d, Property 7.6, which says that "one who fully performs an obligation of another, secured by a mortgage, becomes by subrogation the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment." Such equitable subrogation is an exception to the "first in time" rule that generally determines the priority of a lien.
The trial and appellate courts rejected US Bank's petition, holding that it was not entitled to equitable subrogation under Pennsylvania law, as that doctrine is defined by Home Owners' Loan Corp. v. Crouse, 30 A.2d 330 (Pa. Super. 1943) and First Commonwealth Bank v. Heller, 863 A.2d 1153 (Pa. Super. 2004) -- which are different from the Restatement definition in important respects.
"Like many other jurisdictions," Pennsylvania requires "four criteria to be met for equitable subrogation to apply....These four requirements are:
(1) the claimant paid the creditor to protect his own interests;
(2) the claimant did not act as a volunteer;
(3) the claimant was not primarily liable for the debt; and
(4) allowing subrogation will not cause injustice to the rights of others."
The appellate court found that there were two "important" differences between Pennsylvania's interpretation of equitable subrogation and that in the Restatement.
a) voluntary agent - Under Pennsylvania cases, a creditor such as U.S. Bank is considered an “entirely voluntary agent with no interest in the property” The Restatement does not adopt the 'volunteer' rule but instead only requires that the subrogee paid the creditor to protect some interest. "Thus, under the Restatement, a mortgagee pays off existing loans in order to protect its own interest in gaining the first priority lien position, and therefore would be entitled to the remedy of equitable subrogation."
b) mistake - Another important difference between Pennsylvania law on equitable subrogation and the Restatement’s approach is also illustrated in the Home Owners’ decision, where the court said that “courts of equity will not relieve a party from the consequences of an error due to his own ignorance or carelessness when there were available means which would have enabled him to avoid the mistake if reasonable care had been exercised.... [A] creditor’s mistake 'can be attributed only to its own negligence in failing to search or discover what clearly appeared on the public records'....The Restatement, on the other hand, says that 'subrogation can be granted even if the payor had actual knowledge of the intervening interest; the payor’s notice, actual or constructive, is not necessarily relevant'....Instead, what is relevant under the Restatement is 'whether the payor reasonably expected to get security with a priority equal to the mortgage being paid.'....In fact, the Restatement declares that a refinancing mortgagee should be presumed to have this expectation, even if they are aware of a remaining lien, unless there is affirmative proof that the mortgagee intended to subordinate its mortgage to the remaining interest."
Although the court pointed out that existing state doctrine might sometimes lead to undesirable results*** and "may be ripe for legislative review," it determined that it was bound by its own prior decisions "and principles of stare decisis." The court was also influenced by "the fact that it was US Bank's carelessness that brought about the pecuniary loss that it is now facing."
*** The court posited that, given Pennsylvania doctrine, US Bank would not made the loan "leaving [borrower] in all likelihood unable to refinance his existing loan" -- a scenario that it thought "may be a frequent dilemma for homeowners amidst the current mortgage crisis....."
UC- vol. quit - salary cap
Pearson v. UCBR - Commonwealth Court - June 26, 2008 - UNPUBLISHED
http://www.courts.state.pa.us/OpPosting/CWealth/out/2277CD07_6-26-08.pdf
Claimant was not eligible for benefits where she quit her job after the employer told her that "there would be no possibility of either promotion or increase in pay." Such a statement might "dampen her enthusiasm for continued employment; however, dampened enthusiasm is not a necessitous and compelling reason to quit."
"Claimant’s displeasure with being 'salary capped' was mere dissatisfaction with her working conditions....[M]ere dissatisfaction with one's working conditions does not constitute cause of a necessitous and compelling nature for terminating one's employment. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657 (Pa. Cmwlth. 2006); McKeown v. Unemployment Compensation Board of Review, 442 A.2d 1257 (Pa. Cmwlth. 1982)."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2277CD07_6-26-08.pdf
Claimant was not eligible for benefits where she quit her job after the employer told her that "there would be no possibility of either promotion or increase in pay." Such a statement might "dampen her enthusiasm for continued employment; however, dampened enthusiasm is not a necessitous and compelling reason to quit."
"Claimant’s displeasure with being 'salary capped' was mere dissatisfaction with her working conditions....[M]ere dissatisfaction with one's working conditions does not constitute cause of a necessitous and compelling nature for terminating one's employment. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657 (Pa. Cmwlth. 2006); McKeown v. Unemployment Compensation Board of Review, 442 A.2d 1257 (Pa. Cmwlth. 1982)."
Wednesday, June 25, 2008
standing - assignees for collection of debt
Sprint Communications v. APCC Services - June 23, 2008
http://www.supremecourtus.gov/opinions/07pdf/07-552.pdf
Here is the first paragraph of the majority decision in the Court's 5-4 decision.
The question before us is whether an assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor. Because history and precedent make clear that such an assignee has long been permitted to bring suit, we conclude that the assignee does have standing.
Excepts from the Court's own summary of the case appear below.
++++++++++++++++++++++++++++++++
A payphone customer making a long-distance call with an access code or 1–800 number issued by a long-distance carrier pays the carrier (which completes the call).
The carrier then compensates the pay-phone operator (which connects the call to the carrier in the firstplace).
The payphone operator can sue the long-distance carrier for any compensation that the carrier fails to pay for these "dial-around"calls.
Many payphone operators assign their dial-around claims to billing and collection firms (aggregators) so that, in effect, these aggregators can bring suit on their behalf. A group of aggregators (respondents here) were assigned legal title to the claims of approximately 1,400 payphone operators. The aggregators separately agreed to remit all proceeds to those operators, who would then pay the aggregators for their services.
After entering into these agreements, the aggregators filed federal-court lawsuits seeking compensation from petitioner long-distance carriers. The District Court refused to dismiss the claims, finding that the aggregators had standing, and the D.C. Circuit ultimately affirmed.
Held: An assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor.
(a) History and precedent show that, for centuries, courts have found ways to allow assignees to bring suit; where assignment is at issue, courts—both before and after the founding—have always permitted the party with legal title alone to bring suit; and there is a strong tradition specifically of suits by assignees for collection. Supreme Court precedent offers "powerful support for the proposition that suits by assignees for collection have long been seen as "amenable" to resolution by the judicial process.
(b) No convincing reason is offered to depart from the historical tradition of suits by assignees, including assignees for collection. In any event, the aggregators satisfy the Article III standing requirements articulated in the Court’s more modern decisions.
Petitioners argue that the aggregators have not themselves suffered an injury and that assignments for collection do not transfer the pay-phone operators’ injuries. But the operators assigned their claims lock, stock, and barrel, and precedent makes clear that an assignee can sue based on his assignor’s injuries.
Petitioners’ claim that the assignments constitute nothing more than acontract for legal services is overstated. There is an important distinction between simply hiring a lawyer and assigning a claim to alawyer. The latter confers a property right (which creditors might attach); the former does not.
Dissent - Robert, CJ
"The majority concludes that a private litigant may sue in federal court despite having to "pass back . . . all proceeds of the litigation"...thus depriving that party of any stake in the outcome of the litigation. The majority reaches this conclusion, in flat contravention of our cases interpreting the case-orcontroversy requirement of Article III, by reference to a historical tradition that is, at best, equivocal. That history does not contradict what common sense should tell us: There is a legal difference between something and nothing. Respondents have nothing to gain from their lawsuit.Under settled principles of standing, that fact requires dismissal of their complaint.assignees
http://www.supremecourtus.gov/opinions/07pdf/07-552.pdf
Here is the first paragraph of the majority decision in the Court's 5-4 decision.
The question before us is whether an assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor. Because history and precedent make clear that such an assignee has long been permitted to bring suit, we conclude that the assignee does have standing.
Excepts from the Court's own summary of the case appear below.
++++++++++++++++++++++++++++++++
A payphone customer making a long-distance call with an access code or 1–800 number issued by a long-distance carrier pays the carrier (which completes the call).
The carrier then compensates the pay-phone operator (which connects the call to the carrier in the firstplace).
The payphone operator can sue the long-distance carrier for any compensation that the carrier fails to pay for these "dial-around"calls.
Many payphone operators assign their dial-around claims to billing and collection firms (aggregators) so that, in effect, these aggregators can bring suit on their behalf. A group of aggregators (respondents here) were assigned legal title to the claims of approximately 1,400 payphone operators. The aggregators separately agreed to remit all proceeds to those operators, who would then pay the aggregators for their services.
After entering into these agreements, the aggregators filed federal-court lawsuits seeking compensation from petitioner long-distance carriers. The District Court refused to dismiss the claims, finding that the aggregators had standing, and the D.C. Circuit ultimately affirmed.
Held: An assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor.
(a) History and precedent show that, for centuries, courts have found ways to allow assignees to bring suit; where assignment is at issue, courts—both before and after the founding—have always permitted the party with legal title alone to bring suit; and there is a strong tradition specifically of suits by assignees for collection. Supreme Court precedent offers "powerful support for the proposition that suits by assignees for collection have long been seen as "amenable" to resolution by the judicial process.
(b) No convincing reason is offered to depart from the historical tradition of suits by assignees, including assignees for collection. In any event, the aggregators satisfy the Article III standing requirements articulated in the Court’s more modern decisions.
Petitioners argue that the aggregators have not themselves suffered an injury and that assignments for collection do not transfer the pay-phone operators’ injuries. But the operators assigned their claims lock, stock, and barrel, and precedent makes clear that an assignee can sue based on his assignor’s injuries.
Petitioners’ claim that the assignments constitute nothing more than acontract for legal services is overstated. There is an important distinction between simply hiring a lawyer and assigning a claim to alawyer. The latter confers a property right (which creditors might attach); the former does not.
Dissent - Robert, CJ
"The majority concludes that a private litigant may sue in federal court despite having to "pass back . . . all proceeds of the litigation"...thus depriving that party of any stake in the outcome of the litigation. The majority reaches this conclusion, in flat contravention of our cases interpreting the case-orcontroversy requirement of Article III, by reference to a historical tradition that is, at best, equivocal. That history does not contradict what common sense should tell us: There is a legal difference between something and nothing. Respondents have nothing to gain from their lawsuit.Under settled principles of standing, that fact requires dismissal of their complaint.assignees
zoning - appeal - standing
SCRUB - Philadelphia Zoning Hearing Board - Commonwealth Court - June 25, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1609CD07_6-25-08.pdf
Citizen group held not to have standing to challenge decision of zoning board granting variance to erect commercial sign.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1609CD07_6-25-08.pdf
Citizen group held not to have standing to challenge decision of zoning board granting variance to erect commercial sign.
Tuesday, June 24, 2008
bankruptcy - ch. 13 - lien avoidance - adversary proceeding required
In re Mansaray-Ruffin - 3d Circuit - June 24, 2008
http://www.ca3.uscourts.gov/opinarch/054790p.pdf
"This appeal requires us to determine whether the debtor in a Chapter 13 bankruptcy case successfully invalidated a lien on her property by providing for it as an unsecured claim in her confirmed plan, without initiating an adversary proceeding as required by the Federal Rules of Bankruptcy Procedure. We agree with the lienholder, as well as with the Bankruptcy Court and the District Court, that the answer to this question is no. Accordingly, we will AFFIRM."
This was a 2-1 decision. David Scholl represented the debtor.
http://www.ca3.uscourts.gov/opinarch/054790p.pdf
"This appeal requires us to determine whether the debtor in a Chapter 13 bankruptcy case successfully invalidated a lien on her property by providing for it as an unsecured claim in her confirmed plan, without initiating an adversary proceeding as required by the Federal Rules of Bankruptcy Procedure. We agree with the lienholder, as well as with the Bankruptcy Court and the District Court, that the answer to this question is no. Accordingly, we will AFFIRM."
This was a 2-1 decision. David Scholl represented the debtor.
contracts - fraud - parol evidence - integration clause
Shutter v. Herskowitz and Banks - ED Pa. - June 23, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0696P.pdf
This commercial case involved the sale of a youth hostel. There was a dispute about alleged mispresentations concerning the number of beds permitted by city ordinances. The contract, which contained an integration clause, did not address this disputed issue.
Material misrepresentation
Where a sales contract contains an integration clause which expressly confirms that all agreed terms between the parties are set out in the contract and that any modifications or changes have to be contained in a writing signed by both parties, a plaintiff claiming fraudulent inducement is precluded from offering any extrinsic evidence as to any further representations. Youndt v. First Nat’l Bank, 868 A.2d 539, 548-9 (Pa. Super. 2005)
As the Youndt court stated [and as we are sick of hearing again and again]:
“Where the parties to an agreement adopt a writing as the final and complete expression of their agreement, alleged prior or contemporaneous oral representations or agreements concerning subjects that are specifically covered by the written contract are merged in or superseded by that contract.”....Where the parties,without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract…and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms and agreements cannot be added to nor subtracted from by parol evidence.
Once a writing is determined to be the parties’ entire contract, the parol evidence rule applies and evidence of any previous oral or written negotiations or agreements involving the same subject matter as the contract is almost always inadmissible to explain or vary the terms of the contract. Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004).
Material non-disclosure
"Fraud in the inducement” exists as a narrow exception to the rule barring parol evidence when an integration clause exists. This exception may be invoked where the party proffering the extrinsic evidence contends that he executed the agreement because he was led to believe that the document contained terms that actually were omitted.
To prevail on a claim for non-disclosure of fact, a plaintiff must satisfy the following elements:
(1) One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.
(2) One party to a business transaction [emphasis added] is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated,
(a) matters known to him that the other is entitled to know because of a fiduciary or other similar relation of trust and confidence between them; and
(b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and
(c) subsequently acquired information that he knows will make untrue or misleading a previous representation that when made was true or believed to be so; and
(d) the falsity of a representation not made with the expectation that it would be acted upon, if he subsequently learns that the other is about to act in reliance upon it in a transaction with him; and
(e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.
"Basic to the transaction"
A fact “basic to the transaction” under element (e) is a fact that is assumed by the parties as a basis for the transaction itself. It is a fact that goes to the basis, or essence, of the transaction, and is an important part of the substance of what is bargained for or dealt with. Other facts may serve as important and persuasive inducements to enter into the transaction, but [do] not go to its essence. These facts may be material, but they are not basic. If the parties expressly or impliedly place the risk as to the existence of a fact on one party or if the law places it there by customor otherwise the other party has no duty of disclosure.
http://www.paed.uscourts.gov/documents/opinions/08D0696P.pdf
This commercial case involved the sale of a youth hostel. There was a dispute about alleged mispresentations concerning the number of beds permitted by city ordinances. The contract, which contained an integration clause, did not address this disputed issue.
Material misrepresentation
Where a sales contract contains an integration clause which expressly confirms that all agreed terms between the parties are set out in the contract and that any modifications or changes have to be contained in a writing signed by both parties, a plaintiff claiming fraudulent inducement is precluded from offering any extrinsic evidence as to any further representations. Youndt v. First Nat’l Bank, 868 A.2d 539, 548-9 (Pa. Super. 2005)
As the Youndt court stated [and as we are sick of hearing again and again]:
“Where the parties to an agreement adopt a writing as the final and complete expression of their agreement, alleged prior or contemporaneous oral representations or agreements concerning subjects that are specifically covered by the written contract are merged in or superseded by that contract.”....Where the parties,without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract…and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms and agreements cannot be added to nor subtracted from by parol evidence.
Once a writing is determined to be the parties’ entire contract, the parol evidence rule applies and evidence of any previous oral or written negotiations or agreements involving the same subject matter as the contract is almost always inadmissible to explain or vary the terms of the contract. Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004).
Material non-disclosure
"Fraud in the inducement” exists as a narrow exception to the rule barring parol evidence when an integration clause exists. This exception may be invoked where the party proffering the extrinsic evidence contends that he executed the agreement because he was led to believe that the document contained terms that actually were omitted.
To prevail on a claim for non-disclosure of fact, a plaintiff must satisfy the following elements:
(1) One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.
(2) One party to a business transaction [emphasis added] is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated,
(a) matters known to him that the other is entitled to know because of a fiduciary or other similar relation of trust and confidence between them; and
(b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and
(c) subsequently acquired information that he knows will make untrue or misleading a previous representation that when made was true or believed to be so; and
(d) the falsity of a representation not made with the expectation that it would be acted upon, if he subsequently learns that the other is about to act in reliance upon it in a transaction with him; and
(e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.
"Basic to the transaction"
A fact “basic to the transaction” under element (e) is a fact that is assumed by the parties as a basis for the transaction itself. It is a fact that goes to the basis, or essence, of the transaction, and is an important part of the substance of what is bargained for or dealt with. Other facts may serve as important and persuasive inducements to enter into the transaction, but [do] not go to its essence. These facts may be material, but they are not basic. If the parties expressly or impliedly place the risk as to the existence of a fact on one party or if the law places it there by customor otherwise the other party has no duty of disclosure.
appeal - final order - POs
Pennsylvania Bankers Assn. v. Department of Banking -Pa. Supreme Court - June 16, 2008
majority http://www.courts.state.pa.us/OpPosting/Supreme/out/J-31A&B-2008mo.pdf
concurring http://www.courts.state.pa.us/OpPosting/Supreme/out/J-31A&B-2008co.pdf
An order granting some and denying other of defendant's preliminary objections in plaintiff's declaratory judgment action held to be interlocutory and not a final order subject to appeal.
- As a general rule, where a plaintiff files a multi-count complaint setting forth alternative theories of recovery, an order dismissing less than all of the claim is considered to be interlocutory, because the plaintiff may still pursue the merits of the case based on another theory.
- A final order under PaRAP 341(b)(1) is one that disposes of all claims and all parties
- The plaintiff filed a multi-count complaint which raised alternative constitutional theories of relief
- The lower court's granting of POs resulted in dismissal of some but not all of plaintiff's claims
- The lower court's order did not result in the the dismissal of any parties
- The lower court order did not end the litigation against any party but merely narrowed the scope of the plaintiff's case
- Under its remaining claims, plaintiff might still obtain the relief it is seeking
majority http://www.courts.state.pa.us/OpPosting/Supreme/out/J-31A&B-2008mo.pdf
concurring http://www.courts.state.pa.us/OpPosting/Supreme/out/J-31A&B-2008co.pdf
An order granting some and denying other of defendant's preliminary objections in plaintiff's declaratory judgment action held to be interlocutory and not a final order subject to appeal.
- As a general rule, where a plaintiff files a multi-count complaint setting forth alternative theories of recovery, an order dismissing less than all of the claim is considered to be interlocutory, because the plaintiff may still pursue the merits of the case based on another theory.
- A final order under PaRAP 341(b)(1) is one that disposes of all claims and all parties
- The plaintiff filed a multi-count complaint which raised alternative constitutional theories of relief
- The lower court's granting of POs resulted in dismissal of some but not all of plaintiff's claims
- The lower court's order did not result in the the dismissal of any parties
- The lower court order did not end the litigation against any party but merely narrowed the scope of the plaintiff's case
- Under its remaining claims, plaintiff might still obtain the relief it is seeking
Friday, June 20, 2008
manuf. home installation program - final HUD rule
http://edocket.access.gpo.gov/2008/pdf/E8-13289.pdf
SUMMARY: This final rule establishes a federal manufactured home installation program, as required by section 605(c)(2)(A) of the National Manufactured Housing Construction and Safety Standards Act of 1974.
States that have their own installation programs that include the elements required by statute are permitted to administer, under their state installation programs, the new requirements established through this final rulemaking.
The new elements required by statute to be integrated into an acceptable state manufactured home installation program are: The establishment of qualified installation standards; the licensing and training of installers; and the inspection of the installation of manufactured homes.
DATES: Effective Date: October 20, 2008.
SUMMARY: This final rule establishes a federal manufactured home installation program, as required by section 605(c)(2)(A) of the National Manufactured Housing Construction and Safety Standards Act of 1974.
States that have their own installation programs that include the elements required by statute are permitted to administer, under their state installation programs, the new requirements established through this final rulemaking.
The new elements required by statute to be integrated into an acceptable state manufactured home installation program are: The establishment of qualified installation standards; the licensing and training of installers; and the inspection of the installation of manufactured homes.
DATES: Effective Date: October 20, 2008.
Thursday, June 19, 2008
federal courts - preclusion - doctrine of "virtual representation" disapproved
Taylor v. Sturgell - US Supreme Court - June 12, 2008
http://www.supremecourtus.gov/opinions/07pdf/07-371.pdf
Facts: Herrick, an antique plane enthusiast, brought an FOIA suit against the Federal Aviation Administration (FAA), seeking information about a classic plane in which he was interested; he lost the case. His friend Taylor later brought an FOIA suit seeking the same information.
The courts below held that Taylor's later suit was precluded under the doctrine of "virtual representation," based on their finding of a) an identity of interests, b) adequate representation, c) a close relationship between the parties, and d) other factors.
The U.S. Supreme Court reversed, stating that the theory of preclusion by "virtual representation" is disapproved and holding that the preclusive effects of a judgment in a federal-question case decided by a federal court should instead be determined according to the established grounds for nonparty preclusion.
The preclusive effect of a federal-court judgment is determined by federal common law, subject to due process limitations. Extending the preclusive effect of a judgment to a nonparty runs up against the "deep-rooted historic tradition that everyone should have his own day in court."
The Court has often repeated the general rule that "one is not bound by a judgment in personam in a litigation in which he is not designated a party or to which he has not beenmade a party by service of process."
The rule against nonparty preclusion is subject to exceptions, grouped for present purposes into six categories.
- a person who agrees to be bound by the determination of issues in anaction between others is bound in accordance with the agreement’s terms.
- nonparty preclusion may be based on a pre-existing substantive legal relationship between the person to be bound and a party to the judgment, e.g., assignee and assignor.
- in certain limited circumstances, a nonparty may be bound by a judgment because she was " ‘adequately represented by someone with the same interests who was a party’ " to the suit.
- a nonparty is bound by a judgment if she "assumed control" over the litigation inwhich that judgment was rendered.
- a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in litigation later brings suit as the designated representative or agent of a person who was a party to the prior adjudication.
- a special statutory scheme otherwise consistent with due process—e.g., bankruptcy proceed-ings—may expressly foreclose successive litigation by nonlitigants.
Reaching beyond these six categories, the D. C. Circuit recognized a broad "virtual representation" exception to the rule against nonparty preclusion. None of the arguments advanced by that court or the FAA justify such an expansive doctrine. The D. C. Circuit’s definition of "adequate representation" strayed from the meaning the Court has attributed to that term.
The FAA wanted the Court "to abandon altogether the attempt to delineate discrete grounds and clear rules for nonparty preclusion, contending that only an equitable and heavily fact-driven inquiry can account for all of the situations in whichnonparty preclusion is appropriate. This argument is rejected. A balancing test is at odds with the constrained approach advanced by this Court’s decisions, which have endeavored to delineate discrete, limited exceptions to the fundamental rule that a litigant is not bound by a judgment to which she was not a party."
Second, a party’s representation of a nonparty is "adequate" for preclusion purposes only if, at a minimum: (1) the interests of the nonparty and her representative are aligned, and (2) either the party understood herself to be acting in a representative capacity or theoriginal court took care to protect the nonparty’s interests. Adequate representation may also require (3) notice of the original suit to the persons alleged to have beenrepresented. In the class-action context, these limitations are implemented by FRCivP 23’s procedural safeguards. But an expansive virtual representation doctrine would recognize a common-law kind of class action shorn of these protections.
Third, a diffuse balancing approach to nonparty preclusion would likely complicate the task of district courts faced in the first instance with preclusion questions.
The Court also rejected the FAA's argument that nonparty preclusion should apply more broadly in "public-law" litigation than in "private-law"controversies, citing Richards v. Jefferson County, 517 U. S. 793 (1996). Richards said only that, for the type of public-law claims envisioned there, states were free to adopt procedures limiting repetitive litigation. The Court said that while Congress can adopt such procedures, it doesn't follow that the Court should proscribe or confine successive FOIA suits by different requesters.
In addition, the potential risk that several persons would coordinate a series of vexatious repetitive lawsuits does not justify departing from the usual nonparty preclusion rules. Stare decisis allows courts to dispose of repetitive suits in the same circuit, and even when stare decisis is not dispositive, the human inclination not towaste money should discourage suits based on claims or issues already decided.
Concerning preclusion on the basis of agency, the Court said that a mere whiff of tactical maneuvering will not suffice. Instead, principles of agency law indicate that preclusion is appropriate only if the putative agent’s conduct of the suit is subject to the control of the party who is bound by the prior adjudication.
The Court also rejected the suggestion that Taylor must bear the burden of proving he was not acting as Herrick’s agent.
http://www.supremecourtus.gov/opinions/07pdf/07-371.pdf
Facts: Herrick, an antique plane enthusiast, brought an FOIA suit against the Federal Aviation Administration (FAA), seeking information about a classic plane in which he was interested; he lost the case. His friend Taylor later brought an FOIA suit seeking the same information.
The courts below held that Taylor's later suit was precluded under the doctrine of "virtual representation," based on their finding of a) an identity of interests, b) adequate representation, c) a close relationship between the parties, and d) other factors.
The U.S. Supreme Court reversed, stating that the theory of preclusion by "virtual representation" is disapproved and holding that the preclusive effects of a judgment in a federal-question case decided by a federal court should instead be determined according to the established grounds for nonparty preclusion.
The preclusive effect of a federal-court judgment is determined by federal common law, subject to due process limitations. Extending the preclusive effect of a judgment to a nonparty runs up against the "deep-rooted historic tradition that everyone should have his own day in court."
The Court has often repeated the general rule that "one is not bound by a judgment in personam in a litigation in which he is not designated a party or to which he has not beenmade a party by service of process."
The rule against nonparty preclusion is subject to exceptions, grouped for present purposes into six categories.
- a person who agrees to be bound by the determination of issues in anaction between others is bound in accordance with the agreement’s terms.
- nonparty preclusion may be based on a pre-existing substantive legal relationship between the person to be bound and a party to the judgment, e.g., assignee and assignor.
- in certain limited circumstances, a nonparty may be bound by a judgment because she was " ‘adequately represented by someone with the same interests who was a party’ " to the suit.
- a nonparty is bound by a judgment if she "assumed control" over the litigation inwhich that judgment was rendered.
- a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in litigation later brings suit as the designated representative or agent of a person who was a party to the prior adjudication.
- a special statutory scheme otherwise consistent with due process—e.g., bankruptcy proceed-ings—may expressly foreclose successive litigation by nonlitigants.
Reaching beyond these six categories, the D. C. Circuit recognized a broad "virtual representation" exception to the rule against nonparty preclusion. None of the arguments advanced by that court or the FAA justify such an expansive doctrine. The D. C. Circuit’s definition of "adequate representation" strayed from the meaning the Court has attributed to that term.
The FAA wanted the Court "to abandon altogether the attempt to delineate discrete grounds and clear rules for nonparty preclusion, contending that only an equitable and heavily fact-driven inquiry can account for all of the situations in whichnonparty preclusion is appropriate. This argument is rejected. A balancing test is at odds with the constrained approach advanced by this Court’s decisions, which have endeavored to delineate discrete, limited exceptions to the fundamental rule that a litigant is not bound by a judgment to which she was not a party."
Second, a party’s representation of a nonparty is "adequate" for preclusion purposes only if, at a minimum: (1) the interests of the nonparty and her representative are aligned, and (2) either the party understood herself to be acting in a representative capacity or theoriginal court took care to protect the nonparty’s interests. Adequate representation may also require (3) notice of the original suit to the persons alleged to have beenrepresented. In the class-action context, these limitations are implemented by FRCivP 23’s procedural safeguards. But an expansive virtual representation doctrine would recognize a common-law kind of class action shorn of these protections.
Third, a diffuse balancing approach to nonparty preclusion would likely complicate the task of district courts faced in the first instance with preclusion questions.
The Court also rejected the FAA's argument that nonparty preclusion should apply more broadly in "public-law" litigation than in "private-law"controversies, citing Richards v. Jefferson County, 517 U. S. 793 (1996). Richards said only that, for the type of public-law claims envisioned there, states were free to adopt procedures limiting repetitive litigation. The Court said that while Congress can adopt such procedures, it doesn't follow that the Court should proscribe or confine successive FOIA suits by different requesters.
In addition, the potential risk that several persons would coordinate a series of vexatious repetitive lawsuits does not justify departing from the usual nonparty preclusion rules. Stare decisis allows courts to dispose of repetitive suits in the same circuit, and even when stare decisis is not dispositive, the human inclination not towaste money should discourage suits based on claims or issues already decided.
Concerning preclusion on the basis of agency, the Court said that a mere whiff of tactical maneuvering will not suffice. Instead, principles of agency law indicate that preclusion is appropriate only if the putative agent’s conduct of the suit is subject to the control of the party who is bound by the prior adjudication.
The Court also rejected the suggestion that Taylor must bear the burden of proving he was not acting as Herrick’s agent.
Monday, June 16, 2008
disability - onset date - medical advisor
Mamrol v. Astrue - ED Pa. - June 9, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0646P.pdf
Where there was little contemporaneous evidence about the date of onset of the claimant's disability - multiple sclerosis - the ALJ should have consulted a medical advisor, under the factors set out in SSR 83-20 and the decisions in Walton v. Halter, 243 F3d 703 (3d Cir. 2001) and Newell v. Commissioner, 347 F3d 541 (3d Cir. 2003).
Citing Newell, the court refused to draw negative inferences from claimant's infrequent or irregular doctor visits without first considering her explanations, which in this case satisfied the court.
http://www.paed.uscourts.gov/documents/opinions/08D0646P.pdf
Where there was little contemporaneous evidence about the date of onset of the claimant's disability - multiple sclerosis - the ALJ should have consulted a medical advisor, under the factors set out in SSR 83-20 and the decisions in Walton v. Halter, 243 F3d 703 (3d Cir. 2001) and Newell v. Commissioner, 347 F3d 541 (3d Cir. 2003).
Citing Newell, the court refused to draw negative inferences from claimant's infrequent or irregular doctor visits without first considering her explanations, which in this case satisfied the court.
child abuse - founded/indicated reports - right to expungement hearing
K.R. v. DPW - Commonwealth Court - June 4, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/2060CD07_6-4-08.pdf
It was proper for DPW to deny a hearing on a request for expungement of an "indicated report of abuse and enter an determination based on findings in a related dependency case, which was the basis for a "founded" report of abuse. DPW may rely on the factual findings of the trial court in a dependency adjudication to dismiss an appeal for a request for expungement.
An administrative hearing in a later expungement case would be an improper collateral attack on the factual findings in the dependency adjudication, in which proceeding the alleged abuser has a full and fair opportunity to present evidence and to cross-examine witnesses. "Due process does not require an administrative [expungement] hearing, as the material facts found in the dependency proceeding cannot be disputed."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2060CD07_6-4-08.pdf
It was proper for DPW to deny a hearing on a request for expungement of an "indicated report of abuse and enter an determination based on findings in a related dependency case, which was the basis for a "founded" report of abuse. DPW may rely on the factual findings of the trial court in a dependency adjudication to dismiss an appeal for a request for expungement.
An administrative hearing in a later expungement case would be an improper collateral attack on the factual findings in the dependency adjudication, in which proceeding the alleged abuser has a full and fair opportunity to present evidence and to cross-examine witnesses. "Due process does not require an administrative [expungement] hearing, as the material facts found in the dependency proceeding cannot be disputed."
Friday, June 13, 2008
disability - treating physician opinion - hypothetical to VE
Johnson v. Commissioner - 3rd Cir. - June 13, 2008
http://www.ca3.uscourts.gov/opinarch/072132p.pdf
The Third Circuit affirmed the denial of benefits, rejecting claimant's arguments that (a) the ALJ improperly overlooked treating physician’s opinions and (b) that the ALJ’s disability conclusion was based on the VE's response to "an incomplete hypothetical question."
The court held that the treating physician's opinion was not entitled to controlling weight because it was not well-supported by medically acceptable clinical and laboratory diagnostic techniques and was not consistent with the other substantial evidence in [the claimant's] case record. The court said that there was "overwhelming" evidence to support to ALJ's findings.
The court said that the ALJ was "entitled" to reject much of the treating physicians' evidence "without explanation" where it was "neither pertinent, relevant nor probative." In failing to cite the doctor's evidence, the court said that the ALJ implicitly rejected it. That rejection did not trigger the ALJ’s duty to give the doctor an opportunity to explain testimony that the record "overwhelming[ly] disputed."
Citing Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005), the court held that hypothetical posed to the vocational expert accurately protrayed the claimant’s impairments that were reflected in the record.
http://www.ca3.uscourts.gov/opinarch/072132p.pdf
The Third Circuit affirmed the denial of benefits, rejecting claimant's arguments that (a) the ALJ improperly overlooked treating physician’s opinions and (b) that the ALJ’s disability conclusion was based on the VE's response to "an incomplete hypothetical question."
The court held that the treating physician's opinion was not entitled to controlling weight because it was not well-supported by medically acceptable clinical and laboratory diagnostic techniques and was not consistent with the other substantial evidence in [the claimant's] case record. The court said that there was "overwhelming" evidence to support to ALJ's findings.
The court said that the ALJ was "entitled" to reject much of the treating physicians' evidence "without explanation" where it was "neither pertinent, relevant nor probative." In failing to cite the doctor's evidence, the court said that the ALJ implicitly rejected it. That rejection did not trigger the ALJ’s duty to give the doctor an opportunity to explain testimony that the record "overwhelming[ly] disputed."
Citing Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005), the court held that hypothetical posed to the vocational expert accurately protrayed the claimant’s impairments that were reflected in the record.
pro se litigants - liberal construction of pleadings
Hall-Ditchfield v. US - ED Pa. - June 10, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0643P.pdf
During the course of this pro se case concerning an allegation that the IRS wrongfully withheld plaintiff's tax refunds, the court discussed pro se litigants and said that "[b]ecause the plaintiff is pro se, the Court will construe her pleadings liberally. Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976))."
Wouldn't it be wonderful if the UCBR and Commonwealth Court had this same attitude?
http://www.paed.uscourts.gov/documents/opinions/08D0643P.pdf
During the course of this pro se case concerning an allegation that the IRS wrongfully withheld plaintiff's tax refunds, the court discussed pro se litigants and said that "[b]ecause the plaintiff is pro se, the Court will construe her pleadings liberally. Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976))."
Wouldn't it be wonderful if the UCBR and Commonwealth Court had this same attitude?
Wednesday, June 11, 2008
UC- appeal - preservation/waiver of issues
Pearson v. UCBR - ordered to be reported August 18, 2008 - Commonwealth Court -
http://www.courts.state.pa.us/OpPosting/CWealth/out/2238CD07_8-18-08.pdf
original unreported decision - June 11, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/2238CD07_6-11-08.pdf
The court rejected the Board's argument that the "Claimant failed to preserve any issues for review," in which it alleged that he "failed to specifically challenge any of the Board’s findings in his petition for review or in his statement of questions involved," and that he "waived any challenge to the evidentiary support for the Board’s findings by not addressing the issue in his appellate brief."
The court said the it "may decline to consider issues a claimant fails to raise with sufficient specificity in his petition for review. See Pa. R.A.P. 1513; Deal v. Unemployment Comp. Bd. of Review, 878 A.2d 131 (Pa. Cmwlth. 2005) " and that it "may decline to consider issues a claimant raises in the argument section of his appellate brief but fails to include in his statement of questions involved. See Pa. R.A.P. 2119(a); Leone v. Unemployment Comp. Bd. of Review, 885 A.2d 76 (Pa. Cmwlth. 2005)."
However, the court "decline[d] to apply waiver in this instance. In Claimant’s petition for review, we discern two issues preserved for argument. First, Claimant contends the Board failed to 'review all the facts. ' ....We interpret Claimant’s assertion as a challenge to the evidentiary support for the Board’s findings regarding the circumstances of Claimant’s discharge. Second, we interpret Claimant’s assertion that 'this case is not strong enough” to withhold unemployment compensation benefits as challenging whether Employer met its burden to prove it discharged Claimant for cause. Id.; see also Pa. R.A.P. 1513(d) (“The statement of objections will be deemed to include every subsidiary question fairly comprised therein.”). Because Claimant sufficiently addresses these arguments in his handwritten appellate brief, we will consider them on their merits."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2238CD07_8-18-08.pdf
original unreported decision - June 11, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/2238CD07_6-11-08.pdf
The court rejected the Board's argument that the "Claimant failed to preserve any issues for review," in which it alleged that he "failed to specifically challenge any of the Board’s findings in his petition for review or in his statement of questions involved," and that he "waived any challenge to the evidentiary support for the Board’s findings by not addressing the issue in his appellate brief."
The court said the it "may decline to consider issues a claimant fails to raise with sufficient specificity in his petition for review. See Pa. R.A.P. 1513; Deal v. Unemployment Comp. Bd. of Review, 878 A.2d 131 (Pa. Cmwlth. 2005) " and that it "may decline to consider issues a claimant raises in the argument section of his appellate brief but fails to include in his statement of questions involved. See Pa. R.A.P. 2119(a); Leone v. Unemployment Comp. Bd. of Review, 885 A.2d 76 (Pa. Cmwlth. 2005)."
However, the court "decline[d] to apply waiver in this instance. In Claimant’s petition for review, we discern two issues preserved for argument. First, Claimant contends the Board failed to 'review all the facts. ' ....We interpret Claimant’s assertion as a challenge to the evidentiary support for the Board’s findings regarding the circumstances of Claimant’s discharge. Second, we interpret Claimant’s assertion that 'this case is not strong enough” to withhold unemployment compensation benefits as challenging whether Employer met its burden to prove it discharged Claimant for cause. Id.; see also Pa. R.A.P. 1513(d) (“The statement of objections will be deemed to include every subsidiary question fairly comprised therein.”). Because Claimant sufficiently addresses these arguments in his handwritten appellate brief, we will consider them on their merits."
Saturday, June 07, 2008
tax sale - notice - posting
McCartan v. Montgomery Co. Tax Claim Bureau - Commonwealth Court - June 2, 2008 - UNPUBLISHED OPINION
http://www.courts.state.pa.us/OpPosting/CWealth/out/1162CD07_6-2-08.pdf
Held: Unverified written document about of posting was not sufficient proof of posting, in the face of uncontradicted testimony of the property owner that the property was not posted. The trial court abused its discretion by finding that the property was properly posted based solely on the unnotarized “Affidavit for Posting of Notice of Public Tax Sale” where unrebutted evidence to the contrary was submitted into the record.
Compliance with the other notice requirements of the Law does not necessarily cure a defect in posting because the posting requirement serves three purposes: to inform the taxpayer of the impending sale; to notify others whose interests in the land may be affected by the sale; and, to notify the public at large of the impending sale.
The law is well-settled in Pennsylvania that a valid tax sale requires the tax claim bureau to strictly comply with all three of the notice provisions of sec. 602 of the law, 72 P.S. §5860.602, or the sale is void. The tax claim bureau must notify the owner of the property in the following three ways: (1) publication of the tax sale at least 30 days prior to the sale; (2) notification of the sale to each owner by certified mail at least 30 days in advance of the sale; and (3) posting notice of the sale on the property at least 10 days prior to the sale. 72 P.S. §§5860.602(a), (e). Strict compliance is necessary to guard against any deprivation of property without due process of law.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1162CD07_6-2-08.pdf
Held: Unverified written document about of posting was not sufficient proof of posting, in the face of uncontradicted testimony of the property owner that the property was not posted. The trial court abused its discretion by finding that the property was properly posted based solely on the unnotarized “Affidavit for Posting of Notice of Public Tax Sale” where unrebutted evidence to the contrary was submitted into the record.
Compliance with the other notice requirements of the Law does not necessarily cure a defect in posting because the posting requirement serves three purposes: to inform the taxpayer of the impending sale; to notify others whose interests in the land may be affected by the sale; and, to notify the public at large of the impending sale.
The law is well-settled in Pennsylvania that a valid tax sale requires the tax claim bureau to strictly comply with all three of the notice provisions of sec. 602 of the law, 72 P.S. §5860.602, or the sale is void. The tax claim bureau must notify the owner of the property in the following three ways: (1) publication of the tax sale at least 30 days prior to the sale; (2) notification of the sale to each owner by certified mail at least 30 days in advance of the sale; and (3) posting notice of the sale on the property at least 10 days prior to the sale. 72 P.S. §§5860.602(a), (e). Strict compliance is necessary to guard against any deprivation of property without due process of law.
Thursday, June 05, 2008
UC - willful misconduct - physician's failure to provide medical information
Zurn Industries v. UCBR - Commonwealth Court - June 5, 2008 - UNPUBLISHED OPINION
http://www.courts.state.pa.us/OpPosting/CWealth/out/2093CD07_6-5-08.pdf
The claimant was not insubordinate and did not commit willful misconduct when his doctors failed to provide the employer with information about the claimant's functional capacity. he claimant contacted his doctors and asked them to provide the information.
As in as in Bogan v. UCBR, 447 A.2d 708 (Pa. Cmwlth. 1982) and Houff v. UCBR, 397 A.2d 42 (Pa. Cmwlth. 1979), "Claimant attempted to get the information Employer requested, but neither of his physicians provided acceptable information, at least not within the time demanded by Employer. Also, similar to Bogan, Employer was also unsuccessful in its attempt to have Claimant’s physicians specify any work restrictions. Claimant attempted to fulfill the directives of Employer but had no control over his physicians."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2093CD07_6-5-08.pdf
The claimant was not insubordinate and did not commit willful misconduct when his doctors failed to provide the employer with information about the claimant's functional capacity. he claimant contacted his doctors and asked them to provide the information.
As in as in Bogan v. UCBR, 447 A.2d 708 (Pa. Cmwlth. 1982) and Houff v. UCBR, 397 A.2d 42 (Pa. Cmwlth. 1979), "Claimant attempted to get the information Employer requested, but neither of his physicians provided acceptable information, at least not within the time demanded by Employer. Also, similar to Bogan, Employer was also unsuccessful in its attempt to have Claimant’s physicians specify any work restrictions. Claimant attempted to fulfill the directives of Employer but had no control over his physicians."
discovery - appeal - collateral order doctrine - privilege
T.M. v. Elwyn, Inc. - Superior Court - June 5, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/s66027_07.pdf
In general, discovery orders are not final, and are therefore unappealable. However, discovery orders involving privileged material are nevertheless appealable as collateral to the principal action pursuant to Pa.R.A.P. 313 (“Collateral Orders”).
A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. Pa.R.A.P. 313(b). “A discovery order is collateral only when it is separate and distinct from the underlying cause of action.”
An appeal from a discovery order raising a question of the application of a privilege is separable from the underlying issue, so long as the issue of privilege may be addressed by an appellate court without analysis of the underlying issue.
http://www.courts.state.pa.us/OpPosting/Superior/out/s66027_07.pdf
In general, discovery orders are not final, and are therefore unappealable. However, discovery orders involving privileged material are nevertheless appealable as collateral to the principal action pursuant to Pa.R.A.P. 313 (“Collateral Orders”).
A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. Pa.R.A.P. 313(b). “A discovery order is collateral only when it is separate and distinct from the underlying cause of action.”
An appeal from a discovery order raising a question of the application of a privilege is separable from the underlying issue, so long as the issue of privilege may be addressed by an appellate court without analysis of the underlying issue.
admin. law - appeal - waiver/preservation of issues - Merida v. UCBR distinguished
By an order dated June 5, 2008, this case has now been designated as an opinion, which will be reported and published.
See http://www.courts.state.pa.us/OpPosting/CWealth/out/1912CD07_6-5-08.pdf
Thanks to David Hill of Philadelphia Legal Assistance for preparing and filing the motion which got this case reported
---------------------------------------------------------------------------
Ductmate Industries v. UCBR - Commonwealth Court - March 12, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1912CD07_6-5-08.pdf
previously reported at http://www.courts.state.pa.us/opposting/cwealth/out/1912cd07_3-12-08.pdf
Claimant did not waive any issue when, in appealing from the referee decision, he said only that he "did not agree" with it, and UCBR reversed and granted benefits. The initial determination and referee decision both dealt with a single issue, whether claimant's acts constituted willful misconduct.
The employer argued that claimant's reasons were not specific enough, citing Merida v. UCBR, 543 A.2d 593 (Pa. Cmwlth. 1988) and 34 Pa. Code 101.81(c)(4) http://www.pacode.com/secure/data/034/chapter101/s101.81.html both of which require an appellant to state the "reasons for appeal."
The court noted that in Merida there were two hearings. The employer did not attend the intial hearing, and the Board ordered a second one, during which the claimant raised a number of issues. The referee ruled against the claimant, but did not rule on the propriety of the second hearing.
The claimant appealed to the Board, making only the general objection that he did not agree with the referee's decision. The Board affirmed the referee, and the claimant appealed to the Commonwealth Court, arguing only that the Board erred in ordering the second hearing. The court determined that the claimant had waived the issue of the propriety of the second hearing, since he did not specifically bring it to the attention of the Board, which "could not be charged with scouring the record to determine every possible appeal."
In this case, however, there was only one issue - whether claimant's acts constituted willful misconduct. That was the issue decided in both the initial UCSC determination and the Board decision. Citing Black Lick Trucking Co. v. UCBR, 6677 A.2d 454 (Pa. Cmwlth. 1995), the court held that an "inartful appeal" claiming only general disagreement with the referee decision does not prevent the UCBR from addressing the issues ruled on by both the job center/UCSC and referee. The referee should review all issues in the initial determination, and the Board should review all issues the referee considered -- the precise case here.
See http://www.courts.state.pa.us/OpPosting/CWealth/out/1912CD07_6-5-08.pdf
Thanks to David Hill of Philadelphia Legal Assistance for preparing and filing the motion which got this case reported
---------------------------------------------------------------------------
Ductmate Industries v. UCBR - Commonwealth Court - March 12, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1912CD07_6-5-08.pdf
previously reported at http://www.courts.state.pa.us/opposting/cwealth/out/1912cd07_3-12-08.pdf
Claimant did not waive any issue when, in appealing from the referee decision, he said only that he "did not agree" with it, and UCBR reversed and granted benefits. The initial determination and referee decision both dealt with a single issue, whether claimant's acts constituted willful misconduct.
The employer argued that claimant's reasons were not specific enough, citing Merida v. UCBR, 543 A.2d 593 (Pa. Cmwlth. 1988) and 34 Pa. Code 101.81(c)(4) http://www.pacode.com/secure/data/034/chapter101/s101.81.html both of which require an appellant to state the "reasons for appeal."
The court noted that in Merida there were two hearings. The employer did not attend the intial hearing, and the Board ordered a second one, during which the claimant raised a number of issues. The referee ruled against the claimant, but did not rule on the propriety of the second hearing.
The claimant appealed to the Board, making only the general objection that he did not agree with the referee's decision. The Board affirmed the referee, and the claimant appealed to the Commonwealth Court, arguing only that the Board erred in ordering the second hearing. The court determined that the claimant had waived the issue of the propriety of the second hearing, since he did not specifically bring it to the attention of the Board, which "could not be charged with scouring the record to determine every possible appeal."
In this case, however, there was only one issue - whether claimant's acts constituted willful misconduct. That was the issue decided in both the initial UCSC determination and the Board decision. Citing Black Lick Trucking Co. v. UCBR, 6677 A.2d 454 (Pa. Cmwlth. 1995), the court held that an "inartful appeal" claiming only general disagreement with the referee decision does not prevent the UCBR from addressing the issues ruled on by both the job center/UCSC and referee. The referee should review all issues in the initial determination, and the Board should review all issues the referee considered -- the precise case here.
consumer - payday lending - Consumer Discount Company Law - Loan Interest and Protection Law
Dept. of Banking v. NCAS of Delaware - Pa. Supreme Court - May 29, 2008
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-97-2008mopdf
Stating that it is "well established that Commonwealth public policy prohibits usurious lending, a prohibition that has been recognized for well over 100 years, " the state supreme court affirmed the decision of the Commonwealth Court, 931 A.2d 771 (2007) http://www.aopc.org/OpPosting/CWealth/out/519MD06_7-31-07.pdf in an action brought by the state Department of Banking to prevent the unlicensed defendant lenders from charging consumers fees that exceeded applicable state limits under the Consumer Discount Company Act, 7 P.S. §§6201-6219 (the “CDCA”), and the Loan Interest and Protection Law, 41 P.S. §§101-605 (the “LIPL”).
The court determined that Advance America, a payday lender, was subject to the licensing requirements of the CDCA, since the effective interest rate in its transactions -- more than 300% -- was much higher than the statutory limit of 6%.
Although the stated contract interest rate was 5.98% - just below the 6% limit prescribed by the CDCA - AA also charged consumers $149.95 per month as a "participation fee", which the court said was a charge under the statute that had to be include in the aggregate charges and thus was part of the interest rate determination, because the participation fee was a "necessary condition" of any credit advance by AA and was a "charge inextricably related to the amount actually loaned or advanced."
The court rejected the lender's argument that Delaware law should apply to the case by virtue of a choice-of-law provision in the contract with borrowers, stating that:
a) the case was brought by the state Dept. of Banking, not any individual borrower. The Department was not a party to or bound by the terms of any such contract. The "Department instituted this action pursuant to its police power, not only to protect consumers who had already entered into contracts with Appellant, but more broadly on behalf of the general public to enforce the policy protecting them from usurious lending....When viewed in this light,...the choice-of-law provision in Appellant’s contracts cannot bind the Department in this action to enforce Pennsylvania public policy."
b) even if the contractual provision applied, the Court "has recognized that choice-of-law agreements can be avoided when the terms offend Commonwealth public policy even in disputes between contracting parties....Pennsylvania courts have consistently held that the prohibition of exploitative lending is a fundamental public policy that cannot be circumvented."
c) Although some Pennsylvania statutes permit certain lenders to charge more than the statutory 6% rate under the Loan Interest and Protection Law, 41 P.S. sec. 101 et seq., "violation of any of these statutory provisions will itself offend the public policy of the Commonwealth, as established by the General Assembly."
The court held that its "interpretation harmonizes the remedial purposes of the statute by preventing lenders from charging 'extortionate' fees, while at the same time charging a legal interest rate, thus closing a wide loophole for usurious practices" and agreed with the argument of CLS, an amicus in the case, that this lending vehicle was "an example of the industry’s latest scheme to avoid usury laws....This Court has acknowledged that 'usury is generally accompanied by subterfuge and circumvention of one kind or another to present the color of legality.' ... We agree with the Department, and the amici that Appellant’s interpretation of the statute would undermine the usury laws’ purpose: 'to protect the citizenry of this Commonwealth from being exploited at the hands of unscrupulous individuals seeking to circumvent the law at the expense of unsuspecting borrowers who may have no other avenue to secure financial backing.'"
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-97-2008mopdf
Stating that it is "well established that Commonwealth public policy prohibits usurious lending, a prohibition that has been recognized for well over 100 years, " the state supreme court affirmed the decision of the Commonwealth Court, 931 A.2d 771 (2007) http://www.aopc.org/OpPosting/CWealth/out/519MD06_7-31-07.pdf in an action brought by the state Department of Banking to prevent the unlicensed defendant lenders from charging consumers fees that exceeded applicable state limits under the Consumer Discount Company Act, 7 P.S. §§6201-6219 (the “CDCA”), and the Loan Interest and Protection Law, 41 P.S. §§101-605 (the “LIPL”).
The court determined that Advance America, a payday lender, was subject to the licensing requirements of the CDCA, since the effective interest rate in its transactions -- more than 300% -- was much higher than the statutory limit of 6%.
Although the stated contract interest rate was 5.98% - just below the 6% limit prescribed by the CDCA - AA also charged consumers $149.95 per month as a "participation fee", which the court said was a charge under the statute that had to be include in the aggregate charges and thus was part of the interest rate determination, because the participation fee was a "necessary condition" of any credit advance by AA and was a "charge inextricably related to the amount actually loaned or advanced."
The court rejected the lender's argument that Delaware law should apply to the case by virtue of a choice-of-law provision in the contract with borrowers, stating that:
a) the case was brought by the state Dept. of Banking, not any individual borrower. The Department was not a party to or bound by the terms of any such contract. The "Department instituted this action pursuant to its police power, not only to protect consumers who had already entered into contracts with Appellant, but more broadly on behalf of the general public to enforce the policy protecting them from usurious lending....When viewed in this light,...the choice-of-law provision in Appellant’s contracts cannot bind the Department in this action to enforce Pennsylvania public policy."
b) even if the contractual provision applied, the Court "has recognized that choice-of-law agreements can be avoided when the terms offend Commonwealth public policy even in disputes between contracting parties....Pennsylvania courts have consistently held that the prohibition of exploitative lending is a fundamental public policy that cannot be circumvented."
c) Although some Pennsylvania statutes permit certain lenders to charge more than the statutory 6% rate under the Loan Interest and Protection Law, 41 P.S. sec. 101 et seq., "violation of any of these statutory provisions will itself offend the public policy of the Commonwealth, as established by the General Assembly."
The court held that its "interpretation harmonizes the remedial purposes of the statute by preventing lenders from charging 'extortionate' fees, while at the same time charging a legal interest rate, thus closing a wide loophole for usurious practices" and agreed with the argument of CLS, an amicus in the case, that this lending vehicle was "an example of the industry’s latest scheme to avoid usury laws....This Court has acknowledged that 'usury is generally accompanied by subterfuge and circumvention of one kind or another to present the color of legality.' ... We agree with the Department, and the amici that Appellant’s interpretation of the statute would undermine the usury laws’ purpose: 'to protect the citizenry of this Commonwealth from being exploited at the hands of unscrupulous individuals seeking to circumvent the law at the expense of unsuspecting borrowers who may have no other avenue to secure financial backing.'"
Wednesday, June 04, 2008
custody - jurisdiction - continuing jurisdiction
Billhime v. Billhime - Superior Court - June 4, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/A06024_08.pdf
This case involves Mother's petition for Pennsylvania courts to relinquish jurisdiction to Florida courts. The initial custody order was entered in Pennsylvania. In a later order, the court granted custody to the mother, who lives in Florida, where the children had been living for several years.
The UCCJEA, 23 Pa.C.S.A. § 5422(a)(1), provides that the courts of this Commonwealth will exercise exclusive continuing jurisdiction to modify child custody orders originally entered here unless the child, or a child and at least one parent (or a person acting as a parent), no longer have a “significant connection” with Pennsylvania. For the child, the lack of a continuing “significant connection” with the Commonwealth is established if the court finds that substantial evidence concerning the child’s care, protection, training and personal relationships is no longer available here.
The trial court refused Mother's petition, relying almost exclusively on Father’s continuing “significant connection” with Pennsylvania. However, the court did not focus in any detail on whether the children continue to maintain a “significant connection” to Pennsylvania, noting only that they visit Pennsylvania three times per year and spend time with their father, friends and paternal grandfather. There was little evidence regarding the continuing availability in Pennsylvania of “substantial evidence concerning the child’s “care, protection, training and personal relationships,” as is expressly required by sec . 5422(a)(1) of the UCCJEA. In fact, essentially all of the evidence presented at the evidentiary hearing demonstrates that information relating to the children’s welfare is now located in the state of Florida.
In the absence of exclusive continuing jurisdiction, a Pennsylvania court may nevertheless modify a child custody order it previously issued if it has jurisdiction to make an initial determination under section 5421 of the UCCJEA. 23 Pa.C.S.A. § 5422(b). Because the trial court did not address the applicability of section 5421 in connection with its initial consideration of Mother’s motion to relinquish jurisdiction, we remand for consideration and decision on this issue.
In the event the trial court determines that it lacks jurisdiction to make an initial custody determination pursuant to section 5421, it should grant Mother’s motion and relinquish jurisdiction of custody matters relating to these two children to the courts of the state of Florida. Order reversed. Case remanded.
http://www.courts.state.pa.us/OpPosting/Superior/out/A06024_08.pdf
This case involves Mother's petition for Pennsylvania courts to relinquish jurisdiction to Florida courts. The initial custody order was entered in Pennsylvania. In a later order, the court granted custody to the mother, who lives in Florida, where the children had been living for several years.
The UCCJEA, 23 Pa.C.S.A. § 5422(a)(1), provides that the courts of this Commonwealth will exercise exclusive continuing jurisdiction to modify child custody orders originally entered here unless the child, or a child and at least one parent (or a person acting as a parent), no longer have a “significant connection” with Pennsylvania. For the child, the lack of a continuing “significant connection” with the Commonwealth is established if the court finds that substantial evidence concerning the child’s care, protection, training and personal relationships is no longer available here.
The trial court refused Mother's petition, relying almost exclusively on Father’s continuing “significant connection” with Pennsylvania. However, the court did not focus in any detail on whether the children continue to maintain a “significant connection” to Pennsylvania, noting only that they visit Pennsylvania three times per year and spend time with their father, friends and paternal grandfather. There was little evidence regarding the continuing availability in Pennsylvania of “substantial evidence concerning the child’s “care, protection, training and personal relationships,” as is expressly required by sec . 5422(a)(1) of the UCCJEA. In fact, essentially all of the evidence presented at the evidentiary hearing demonstrates that information relating to the children’s welfare is now located in the state of Florida.
In the absence of exclusive continuing jurisdiction, a Pennsylvania court may nevertheless modify a child custody order it previously issued if it has jurisdiction to make an initial determination under section 5421 of the UCCJEA. 23 Pa.C.S.A. § 5422(b). Because the trial court did not address the applicability of section 5421 in connection with its initial consideration of Mother’s motion to relinquish jurisdiction, we remand for consideration and decision on this issue.
In the event the trial court determines that it lacks jurisdiction to make an initial custody determination pursuant to section 5421, it should grant Mother’s motion and relinquish jurisdiction of custody matters relating to these two children to the courts of the state of Florida. Order reversed. Case remanded.
appeals - MDJ appeals - appeal v. certiorari
Gladstone Partners v. Overland Enterprise - Superior Court - June 2, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/A06037_08.pdf
Appeal de novo and writ of certiorari are different, separate, and mutually exclusive.
These remedies do not and cannot exist simultaneously. MDJ Rule 1015 expressly prohibits a litigant from availing themselves of both an appeal de novo and certiorari review. Rule 1015 clearly requires a litigant desiring to challenge a magisterial district court’s judgment to choose either to appeal de novo or to seek certiorari review.
The purpose of an appeal de novo is to give a litigant a new trial without reference to the record established in the minor court, whereas certiorari connotes a review of the record established in the minor court with an eye to cure defects in procedure and legal error....
The Pennsylvania Constitution does not guarantee the remedy of certiorari review, but, rather, the Judicial Code permits the courts of common pleas to issue writs of certiorari as they had done at common law, 42 Pa.C.S.A. § 934. As such, the appellate courts of this Commonwealth have described certiorari review as an alternative to an appeal de novo.
The remedy of appeal de novo takes precedence over certiorari review due to the guarantee of the right to appeal found in Art. V § 9 of the Pennsylvania Constitution. Thus, the simultaneous filing of an appeal de novo and a praecipe for writ of certiorari will result in the striking of the writ if it is later granted by the court of common pleas.
The time for appeal is not extended while certiorari proceeding are pending
Courts cannot extend appeal deadlines without showing a breakdown in the processes of the court or fraud that would justify an appeal nunc pro tunc. The MDJ Rules state the time limits for seeking appeal de novo and certiorari review with specificity.
A party challenging the subject matter or procedural jurisdiction of an MDJ via writ of certiorari may do so at any time after entry of the court’s judgment; otherwise, the time limit for seeking certiorari review is 30 days following entry of judgment. Pa.R.C.P.M.D.J. 1009B.
On the other hand, a party appealing de novo is constrained by a 30-day time limitation from the entry of judgment or, in the case of judgments of possession of residential real property, a 10-day time limitation from the entry of judgment. Pa.R.C.P.M.D.J. 1002A, 1002B.
Therefore, to find that the grant of a writ of certiorari tolls the time for taking appeal de novo would permit the courts of common pleas to extend the time for taking appeal de novo to a potentially-limitless period.
No good cause for late filing - MDJ Rules 1002A and 1002B permit the filing of an appeal beyond the stated time periods with leave of court and upon good cause shown. In the present case, the appellant did not request the leave of court or demonstrate cause as to why their appeal was filed beyond the 30-day time limit. Accordingly, we need not consider this grace proviso in the present case.
http://www.courts.state.pa.us/OpPosting/Superior/out/A06037_08.pdf
Appeal de novo and writ of certiorari are different, separate, and mutually exclusive.
These remedies do not and cannot exist simultaneously. MDJ Rule 1015 expressly prohibits a litigant from availing themselves of both an appeal de novo and certiorari review. Rule 1015 clearly requires a litigant desiring to challenge a magisterial district court’s judgment to choose either to appeal de novo or to seek certiorari review.
The purpose of an appeal de novo is to give a litigant a new trial without reference to the record established in the minor court, whereas certiorari connotes a review of the record established in the minor court with an eye to cure defects in procedure and legal error....
The Pennsylvania Constitution does not guarantee the remedy of certiorari review, but, rather, the Judicial Code permits the courts of common pleas to issue writs of certiorari as they had done at common law, 42 Pa.C.S.A. § 934. As such, the appellate courts of this Commonwealth have described certiorari review as an alternative to an appeal de novo.
The remedy of appeal de novo takes precedence over certiorari review due to the guarantee of the right to appeal found in Art. V § 9 of the Pennsylvania Constitution. Thus, the simultaneous filing of an appeal de novo and a praecipe for writ of certiorari will result in the striking of the writ if it is later granted by the court of common pleas.
The time for appeal is not extended while certiorari proceeding are pending
Courts cannot extend appeal deadlines without showing a breakdown in the processes of the court or fraud that would justify an appeal nunc pro tunc. The MDJ Rules state the time limits for seeking appeal de novo and certiorari review with specificity.
A party challenging the subject matter or procedural jurisdiction of an MDJ via writ of certiorari may do so at any time after entry of the court’s judgment; otherwise, the time limit for seeking certiorari review is 30 days following entry of judgment. Pa.R.C.P.M.D.J. 1009B.
On the other hand, a party appealing de novo is constrained by a 30-day time limitation from the entry of judgment or, in the case of judgments of possession of residential real property, a 10-day time limitation from the entry of judgment. Pa.R.C.P.M.D.J. 1002A, 1002B.
Therefore, to find that the grant of a writ of certiorari tolls the time for taking appeal de novo would permit the courts of common pleas to extend the time for taking appeal de novo to a potentially-limitless period.
No good cause for late filing - MDJ Rules 1002A and 1002B permit the filing of an appeal beyond the stated time periods with leave of court and upon good cause shown. In the present case, the appellant did not request the leave of court or demonstrate cause as to why their appeal was filed beyond the 30-day time limit. Accordingly, we need not consider this grace proviso in the present case.
Monday, June 02, 2008
attorney fees - EAJA - paralegal time - prevailing market rates
Richlin Security Services v. Chertoff - US. Supreme Court - June 2, 2008
http://www.supremecourtus.gov/opinions/07pdf/06-1717.pdf
The question presented in this case is whether the Equal Access to Justice Act (EAJA), 5 U. S. C. §504(a)(l) (2006 ed.) and 28 U. S. C. §2412(d)(1)(A) (2000 ed.), allows a prevailing party in a case brought by or against the Government to recover fees for paralegal services at the market rate for such services or only at their cost to the party’s attorney.
Held: A prevailing party that satisfies EAJA’s other requirements may recover its paralegal fees from the Government at prevailing market rates.
EAJA, like §1988, must be interpreted as using the term "attorney . . . fees" to reach fees for paralegal services as well as compensation for the attorney’s personal labor, making "self-evident"that Congress intended that term to embrace paralegal fees.
Since §504 generally provides for recovery of attorney’s fees at "prevailingmarket rates," it follows that paralegal fees must also be recoverable at those rates.
http://www.supremecourtus.gov/opinions/07pdf/06-1717.pdf
The question presented in this case is whether the Equal Access to Justice Act (EAJA), 5 U. S. C. §504(a)(l) (2006 ed.) and 28 U. S. C. §2412(d)(1)(A) (2000 ed.), allows a prevailing party in a case brought by or against the Government to recover fees for paralegal services at the market rate for such services or only at their cost to the party’s attorney.
Held: A prevailing party that satisfies EAJA’s other requirements may recover its paralegal fees from the Government at prevailing market rates.
EAJA, like §1988, must be interpreted as using the term "attorney . . . fees" to reach fees for paralegal services as well as compensation for the attorney’s personal labor, making "self-evident"that Congress intended that term to embrace paralegal fees.
Since §504 generally provides for recovery of attorney’s fees at "prevailingmarket rates," it follows that paralegal fees must also be recoverable at those rates.
Subscribe to:
Posts (Atom)