Morales v. Sun Constructors, Inc. - Third Circuit - August 28, 2008 (2-1 decision)
http://www.ca3.uscourts.gov/opinarch/073806p.pdf
Held: An arbitration clause in an employment contract is enforceable even where one party does not understand the contract because he "is ignorant of the language in which the agreement is written," where there is no claim is fraud or other misleading conduct. The employer undertook to have a bilingual applicant who was also present translate the agreement to plaintiff, but "he did not specifically explain the arbitration clause" and the employer representative only explained it in English, even though he was aware that the plaintiff did not understand English.
The court purported to apply general Pennsylvania contract principles, which require only an outward expression of mutual assent, and not the parties' subjective intent - an objective theory of contract formation, which applies even when one party is illiterate or ignorant of the language in which the document is written. Every contracting party has the duty “to learn and know the contents of a contract before he signs and delivers it”). Arbitration agreements in the employment context are not exempt from this principle. In the absence of fraud or misrepresentation, which are not alleged here, a contract is enforceable even where one party cannot read, write, speak or under the language of the contract. "It was [the plaintiff's] obligation to ensure he understood the Agreement before signing."
The court held that a "heightened 'knowing and voluntary' standard to arbitration agreements would be inconsistent with the Federal Arbitration Act," 9 USC sec. 1 et seq., rejecting a claim that such a standard should apply because of the relinquishment of a valuable right - a court hearing.
dissenting opinion
The dissent agreed about the heightened standard but disagreed on the contractual issues of mutual assent, which it said should be considered separately and independently of any question of fraud. The dissent believed that the "gravamen of this case is that [the employer] took upon itself the task of translating the agreement for plaintiff and, in doing so, failed to convey the entire contents of the agreement," resulting in a "lack of mutual assent."
It was undisputed that (1) The plaintiff was unable to read the contract; (2) The employer assigned a coworker who himself was not fluent in English to translate the document for plaintiff; (3) the co-worker, in translating the document, neglected to translate the arbitration clauses; and (4) as a result of the incomplete translation, plaintiff was not aware that the agreement contained an arbitration clause.
The dissent found that the applicant's lack of understanding of the contract terms was not the result of his negligence, but rather the employer's failure to properly translate the terms, a task which the employer voluntarily assumed. The employer "made the decision to insert itself" between the applicant and the contract, thus creating a situation where the lack of consent could and did occur. The employer's translation of the contact terms was incorrect and incomplete, thus negating the applicant's assent.
Friday, August 29, 2008
child abuse - expungement - failure to get mental health treatment
W.C. v. DPW - Commonwealth Court - August 29, 2008 - UNREPORTED
http://www.courts.state.pa.us/OpPosting/CWealth/out/1918CD07_8-29-08.pdf
Failure to get mental health treatment for child justified agency's refusal to expunge indicated report of abuse.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1918CD07_8-29-08.pdf
Failure to get mental health treatment for child justified agency's refusal to expunge indicated report of abuse.
Thursday, August 21, 2008
consumer - FDCPA - letter from "legal department" with no attorneys
Rosenau et al. v. Unifund Corp. - Third Circuit - August 21, 2008
http://www.ca3.uscourts.gov/opinarch/073019p.pdf
1. Sec. 1692e(3) - Where there are no attorneys in a debt collector's "Legal Department," a collection letter signed by the "Legal Department" violates FCCPA sec. 1692e(3), which prohibits the "false representation or implication that...any communcation is from an attorney," even where the letter was not on law firm letterhead or signed by an attorney.
A "least sophisticated debtor" could have reasonably inferred that the Legal Department has "attorneys who played a role in writing or sending the letter." The fact that the letter says that it comes from a "debt collector" doesn't change this result. The terms "attorney" and "debt collector" are not mutually exclusive. Nor does it matter that the letter talks about a possible referral "to an attorney in your area"; lawyers commonly refer cases to other lawyers who practice in the geographical area where a debtor is located.
2. Sec. 1692e(10) - The court rejected plaintiff's argument that the use of Legal Department violated the catchall provision of the FDCAP, sec. 1692e(10), which prohibits the use of "any false representations or deceptive means to collect...any debt." It rejected an FTC advisory letter on the issue, holding that it was not entitled to deference except to the extent that its logic was persuasive. The court found that there is no clear objective standard that could be applied on this issue, since different legal departments have difference functions and emphases. However, the court remanded the case for further factual development, since the lower court's ruling was the result of a judgment on the pleadings, which is "inappropriate" for the resolution of a factual issue.
http://www.ca3.uscourts.gov/opinarch/073019p.pdf
1. Sec. 1692e(3) - Where there are no attorneys in a debt collector's "Legal Department," a collection letter signed by the "Legal Department" violates FCCPA sec. 1692e(3), which prohibits the "false representation or implication that...any communcation is from an attorney," even where the letter was not on law firm letterhead or signed by an attorney.
A "least sophisticated debtor" could have reasonably inferred that the Legal Department has "attorneys who played a role in writing or sending the letter." The fact that the letter says that it comes from a "debt collector" doesn't change this result. The terms "attorney" and "debt collector" are not mutually exclusive. Nor does it matter that the letter talks about a possible referral "to an attorney in your area"; lawyers commonly refer cases to other lawyers who practice in the geographical area where a debtor is located.
2. Sec. 1692e(10) - The court rejected plaintiff's argument that the use of Legal Department violated the catchall provision of the FDCAP, sec. 1692e(10), which prohibits the use of "any false representations or deceptive means to collect...any debt." It rejected an FTC advisory letter on the issue, holding that it was not entitled to deference except to the extent that its logic was persuasive. The court found that there is no clear objective standard that could be applied on this issue, since different legal departments have difference functions and emphases. However, the court remanded the case for further factual development, since the lower court's ruling was the result of a judgment on the pleadings, which is "inappropriate" for the resolution of a factual issue.
Wednesday, August 20, 2008
consumer - credit card case - standing, pleading, etc.
Remit v. Miller - C.P. Centre County - August 15, 2008
The court upheld the POs of the defendant (represented by Carl Mollica of MidPenn) in a credit card case.
attachment of writing
The court upheld defendant's objection that plaintiff violated Pa. RCP 1019(i) by failing to attach a copy of the writing on which its claim was based, stating that in "credit card suit, a creditor must 'attach the writings which assertedly establish [the creditor’s] right to a judgment.' " Atlantic Credit and Finance, Inc. v. Giuliani, 829 A.2d 340, 345 (Pa. Super. 2003).
standing - chain of ownership must be attached to complaint
Plaintiff claimed that it had standing to pursue the claim against plaintiff by virtue of an assignment, but it did not attach any writing assignment to the complaint. The court said that several Common Pleas cases hold that an assignment must be attached to the Complaint. The Centre County case of Flanagan v. Hill, Fitzgerald and Erie Insurance Group, 2006 PA.D.&.C. 263 (Kistler, J.) holds that Pa.R.C.P. 1019 requires that an assignment be attached to a complaint. This holding is in accord with Worldwide Asset Purchasing, LLC v. Stern, 153 Pittsburgh Legal J. 111, 112 (C.P. Allegheny 2004), which specifically addressed assignments in credit card cases. This Court concurs with these holdings and determines Pa.R.C.P. 1019 requires that, in a credit card case based upon an assignment, the relevant assignments showing the chain of ownership for the account from originator to current holder must be attached to the Complaint."
lack of specificity of pleading amount owed
A bare conclusory affidavit claiming an amount owed is insufficient in a credit card case. The court followed the holding in Marine Bank v. Orlando, 25 D.&.C.3d 264 (C.P. Erie 1982), which sustained POs for failure to comply with Pa.R.C.P. 1019(f), holding that “[a] defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what he must contest.” Id. at 268. This information must be included in the pleading for it to comply with Pa.R.C.P. 1019(f)."
The court also held that plaintiff was entitled to know specific charges and a specific accounting information to allow the defendant to calculate what she owes and how that amount was reached. Plaintiff must provide a breakdown of charges, payments, items purchased, and interest such that defendant can formulate a response or assert a counterclaim or a defense.
The court cited with approval the holding in Premium Assignment Corp. v. City Cab Company, Inc., 2005 WL 1706976, 2005 LEXIS 311 (C.P. Philadelphia 2005), for the proposition that “[t]he specific calculations are necessary pieces of information that are known by the plaintiff and are relatively simple to aver. The addition of those specific calculations will enable the defendant to prepare its defense and address the issues without forcing the defendant to engage in unnecessary discovery.” Defendant needs this information both to be able to fully and accurately answer the Complaint, to make any necessary counterclaims or defenses, and to avoid unnecessary discovery.
The court upheld the POs of the defendant (represented by Carl Mollica of MidPenn) in a credit card case.
attachment of writing
The court upheld defendant's objection that plaintiff violated Pa. RCP 1019(i) by failing to attach a copy of the writing on which its claim was based, stating that in "credit card suit, a creditor must 'attach the writings which assertedly establish [the creditor’s] right to a judgment.' " Atlantic Credit and Finance, Inc. v. Giuliani, 829 A.2d 340, 345 (Pa. Super. 2003).
standing - chain of ownership must be attached to complaint
Plaintiff claimed that it had standing to pursue the claim against plaintiff by virtue of an assignment, but it did not attach any writing assignment to the complaint. The court said that several Common Pleas cases hold that an assignment must be attached to the Complaint. The Centre County case of Flanagan v. Hill, Fitzgerald and Erie Insurance Group, 2006 PA.D.&.C. 263 (Kistler, J.) holds that Pa.R.C.P. 1019 requires that an assignment be attached to a complaint. This holding is in accord with Worldwide Asset Purchasing, LLC v. Stern, 153 Pittsburgh Legal J. 111, 112 (C.P. Allegheny 2004), which specifically addressed assignments in credit card cases. This Court concurs with these holdings and determines Pa.R.C.P. 1019 requires that, in a credit card case based upon an assignment, the relevant assignments showing the chain of ownership for the account from originator to current holder must be attached to the Complaint."
lack of specificity of pleading amount owed
A bare conclusory affidavit claiming an amount owed is insufficient in a credit card case. The court followed the holding in Marine Bank v. Orlando, 25 D.&.C.3d 264 (C.P. Erie 1982), which sustained POs for failure to comply with Pa.R.C.P. 1019(f), holding that “[a] defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what he must contest.” Id. at 268. This information must be included in the pleading for it to comply with Pa.R.C.P. 1019(f)."
The court also held that plaintiff was entitled to know specific charges and a specific accounting information to allow the defendant to calculate what she owes and how that amount was reached. Plaintiff must provide a breakdown of charges, payments, items purchased, and interest such that defendant can formulate a response or assert a counterclaim or a defense.
The court cited with approval the holding in Premium Assignment Corp. v. City Cab Company, Inc., 2005 WL 1706976, 2005 LEXIS 311 (C.P. Philadelphia 2005), for the proposition that “[t]he specific calculations are necessary pieces of information that are known by the plaintiff and are relatively simple to aver. The addition of those specific calculations will enable the defendant to prepare its defense and address the issues without forcing the defendant to engage in unnecessary discovery.” Defendant needs this information both to be able to fully and accurately answer the Complaint, to make any necessary counterclaims or defenses, and to avoid unnecessary discovery.
Pennsylvania Constitution - limitation on Edmunds analysis
Jubilirer v. Rendell - Pa. Supreme Court - August 19, 2008
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2008mo.pdf
This case involves interpreting Article IV, Section 16 of the Pennsylvania Constitution, which permits the Governor, when presented with an appropriation bill, to delete portions of the language defining a specific appropriation without disapproving the funds with which the language is associated.
It provides that the "Governor shall have power to disapprove of any item or items of any bill, making appropriations of money, embracing distinct items, and the part or parts of the bill approved shall be the law, and the item or items of appropriation disapproved shall be void, unless re-passed according to the rules and limitations prescribed for the passage of other bills over the Executive veto." PA. CONST. art. IV, § 16.
In Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 1991), the court directed litigants to brief and analyze: (1) the relevant text of the provision of the Pennsylvania Constitution; (2) the history of the provision, including Pennsylvania caselaw; (3) relevant caselaw from other jurisdictions; and (4) policy considerations). The court said that “it is both important and necessary that we undertake an independent analysis of the Pennsylvania Constitution, each time a provision of that fundamental document is implicated.” Id. at 894-95.
The court limited that analytical model in the instant case, holding that only where a matter calls for "comparative constitutional analysis" of similar state and federal constitutional provisions is Edmunds analysis appropriate.
In cases involving an interpretation of a provision of the Pennsylvania Constitution that lacks a counterpart in the U.S. Constitution , the court has "not engaged in the four-factor analysis set forth in Edmunds....because there is no federal constitutional text or federal caselaw to consider."
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2008mo.pdf
This case involves interpreting Article IV, Section 16 of the Pennsylvania Constitution, which permits the Governor, when presented with an appropriation bill, to delete portions of the language defining a specific appropriation without disapproving the funds with which the language is associated.
It provides that the "Governor shall have power to disapprove of any item or items of any bill, making appropriations of money, embracing distinct items, and the part or parts of the bill approved shall be the law, and the item or items of appropriation disapproved shall be void, unless re-passed according to the rules and limitations prescribed for the passage of other bills over the Executive veto." PA. CONST. art. IV, § 16.
In Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 1991), the court directed litigants to brief and analyze: (1) the relevant text of the provision of the Pennsylvania Constitution; (2) the history of the provision, including Pennsylvania caselaw; (3) relevant caselaw from other jurisdictions; and (4) policy considerations). The court said that “it is both important and necessary that we undertake an independent analysis of the Pennsylvania Constitution, each time a provision of that fundamental document is implicated.” Id. at 894-95.
The court limited that analytical model in the instant case, holding that only where a matter calls for "comparative constitutional analysis" of similar state and federal constitutional provisions is Edmunds analysis appropriate.
In cases involving an interpretation of a provision of the Pennsylvania Constitution that lacks a counterpart in the U.S. Constitution , the court has "not engaged in the four-factor analysis set forth in Edmunds....because there is no federal constitutional text or federal caselaw to consider."
Monday, August 18, 2008
mortgage foreclosure - pleading - lack of knowledge
LaSalle Bank v. Youngberg - CP Centre County - August 12, 2008
The court denied plaintiff/mortgagee's motion for summary judgment on its complaint and defendant's answer, which claimed "lack of knowledge" about a) the assignment of the mortgage note, b) the amount due on the mortgage, and c) plaintiff's request for attorney fees.
The court adopted the reasong in Cercone v. Cercone, 386 A.2d 1 (1978), which held that the court must examine the entire pleading in determining whether the responding party must have had knowledge of certain information that was generally denied. While it is well settled that an inadequate denial is unacceptable and may if fact be an admission, that is only the case where it is clear that the defendants have adequate knowledge or that the means of obtaining information are within the defendants’ control.
assignment - The court held that it would not "require the debtor to consult public records records to verify the transfer of a mortgage note from one party to another, particularly when such information is much more readily available to the creditor and the creditor has not provided the verification until much later in the course of the litigation."
amount due - The actual amount due on a mortgage varies over time due to fees assessed and the interest rate. "The Court will not require Defendants, who have incomplete information, to conduct pre-answer discovery to avoid having their otherwise legitimate denials deemed answers by the Court. This shifting of the burden from Plaintiff to Defendant is unacceptable and without basis in the Pennsylvania Rules of Civil Procedure or in case law. Furthermore, Defendants cannot be required to accept the assertion of what costs have been incurred by the Plaintiff without conducting discovery relating to costs. Defendants’ denial of this information, to the extent it was denied in their Answer, was not an admission."
attorney fees - The "assessment of attorney’s fees, is similar to Defendants’ denial...that Defendant cannot be required to accept the assertion that Plaintiff has incurred attorney’s fees amounting to the amount listed in the Complaint. Defendants may challenge the reasonableness of attorney’s fees, including the legal enforceability of attorney’s fees clauses in Mortgage agreements. The Court will analyze attorney’s fees claims under the analysis set forth in Federal Land Bank of Baltimore v. Fetner, 410 A.2d 344 (Pa.Super. 1979), applying a reasonableness test in examining the complexity of the litigation and the relation between the amount requested in attorney’s fees and the amount of the principal due."
In sum, applying the Cercone analysis to the present case, the Court finds that Defendants admitted the allegations to which they had knowledge and denied those in which they did not have knowledge.The Court determines the record does not clearly show that no genuine issues of material fact exist and that Plaintiff is entitled to judgment as a matter of law."
The court denied plaintiff/mortgagee's motion for summary judgment on its complaint and defendant's answer, which claimed "lack of knowledge" about a) the assignment of the mortgage note, b) the amount due on the mortgage, and c) plaintiff's request for attorney fees.
The court adopted the reasong in Cercone v. Cercone, 386 A.2d 1 (1978), which held that the court must examine the entire pleading in determining whether the responding party must have had knowledge of certain information that was generally denied. While it is well settled that an inadequate denial is unacceptable and may if fact be an admission, that is only the case where it is clear that the defendants have adequate knowledge or that the means of obtaining information are within the defendants’ control.
assignment - The court held that it would not "require the debtor to consult public records records to verify the transfer of a mortgage note from one party to another, particularly when such information is much more readily available to the creditor and the creditor has not provided the verification until much later in the course of the litigation."
amount due - The actual amount due on a mortgage varies over time due to fees assessed and the interest rate. "The Court will not require Defendants, who have incomplete information, to conduct pre-answer discovery to avoid having their otherwise legitimate denials deemed answers by the Court. This shifting of the burden from Plaintiff to Defendant is unacceptable and without basis in the Pennsylvania Rules of Civil Procedure or in case law. Furthermore, Defendants cannot be required to accept the assertion of what costs have been incurred by the Plaintiff without conducting discovery relating to costs. Defendants’ denial of this information, to the extent it was denied in their Answer, was not an admission."
attorney fees - The "assessment of attorney’s fees, is similar to Defendants’ denial...that Defendant cannot be required to accept the assertion that Plaintiff has incurred attorney’s fees amounting to the amount listed in the Complaint. Defendants may challenge the reasonableness of attorney’s fees, including the legal enforceability of attorney’s fees clauses in Mortgage agreements. The Court will analyze attorney’s fees claims under the analysis set forth in Federal Land Bank of Baltimore v. Fetner, 410 A.2d 344 (Pa.Super. 1979), applying a reasonableness test in examining the complexity of the litigation and the relation between the amount requested in attorney’s fees and the amount of the principal due."
In sum, applying the Cercone analysis to the present case, the Court finds that Defendants admitted the allegations to which they had knowledge and denied those in which they did not have knowledge.The Court determines the record does not clearly show that no genuine issues of material fact exist and that Plaintiff is entitled to judgment as a matter of law."
Wednesday, August 13, 2008
disability - hearing loss - medical criteria - proposed regulations
http://edocket.access.gpo.gov/2008/pdf/E8-18718.pdf
SUMMARY: We propose to revise the criteria in the Listing of Impairments (the listings) that we use to evaluate claims involving hearing loss. We apply these criteria when you claim benefits based on disability under title II and title XVI of the Social Security Act (the Act). The proposed revisions reflect current medical knowledge, treatment, and methods of evaluating hearing loss, as well as our adjudicative experience since the publication of the current rules.
DATES: To be sure that your comments are considered, we must receive them by October 14, 2008.
SUMMARY: We propose to revise the criteria in the Listing of Impairments (the listings) that we use to evaluate claims involving hearing loss. We apply these criteria when you claim benefits based on disability under title II and title XVI of the Social Security Act (the Act). The proposed revisions reflect current medical knowledge, treatment, and methods of evaluating hearing loss, as well as our adjudicative experience since the publication of the current rules.
DATES: To be sure that your comments are considered, we must receive them by October 14, 2008.
Tuesday, August 12, 2008
admin. law - appeal - frivolous appeal - attorney fees
Reinhart v. Bureau of Driver Licensing - Commonwealth Court - August 12, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/2351CD07_8-12-08.pdf
The court upheld the trial court's decision in favor of the driver, whose license DOT wanted to suspend for his alleged refusal to submit to chemical testing by failing provide adequate breath samples, after being arrested for DUI.
The court also awarded attorney fees under Pa. RAP 2744, because DOT's appeal was found to be frivolous. It was based entirely on its own version of the facts, which were contrary those found by the trial court - including an express determination that the licensee provided two sufficient breath samples, rejecting contradictory testimony from DOT. The lower court findings, including about credibility, were held to be well supported by substantial evidence.
On appeal, DOT argued that it was "undisputed" that the licensee did not provide sufficient breath for a proper test, in spite of the express lower court findings to the contrary. "The court must determine the issues under the facts properly found by the trial court and not under the testimony that DOT prefers."
Pa. RAP 2744 states that an appellate court may award as further costs and damages as may be just a reasonable counsel fee "if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule." Pa. R.A.P. 2744.
A frivolous appeal is one in which “no justifiable question has been presented and ... [that] is readily recognizable as devoid of merit in that there is little prospect of success”....A frivolous appeal is one lacking any basis in law or fact. Basing an appeal solely upon facts which are contrary to the factual findings of the trial court, the sole arbiter of credibility, has been held to be frivolous.
An award of attorney’s fees against a government entity for pursuing a frivolous appeal is not without precedent and is not barred by any kind of immunity.
http://www.courts.state.pa.us/OpPosting/CWealth/out/2351CD07_8-12-08.pdf
The court upheld the trial court's decision in favor of the driver, whose license DOT wanted to suspend for his alleged refusal to submit to chemical testing by failing provide adequate breath samples, after being arrested for DUI.
The court also awarded attorney fees under Pa. RAP 2744, because DOT's appeal was found to be frivolous. It was based entirely on its own version of the facts, which were contrary those found by the trial court - including an express determination that the licensee provided two sufficient breath samples, rejecting contradictory testimony from DOT. The lower court findings, including about credibility, were held to be well supported by substantial evidence.
On appeal, DOT argued that it was "undisputed" that the licensee did not provide sufficient breath for a proper test, in spite of the express lower court findings to the contrary. "The court must determine the issues under the facts properly found by the trial court and not under the testimony that DOT prefers."
Pa. RAP 2744 states that an appellate court may award as further costs and damages as may be just a reasonable counsel fee "if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule." Pa. R.A.P. 2744.
A frivolous appeal is one in which “no justifiable question has been presented and ... [that] is readily recognizable as devoid of merit in that there is little prospect of success”....A frivolous appeal is one lacking any basis in law or fact. Basing an appeal solely upon facts which are contrary to the factual findings of the trial court, the sole arbiter of credibility, has been held to be frivolous.
An award of attorney’s fees against a government entity for pursuing a frivolous appeal is not without precedent and is not barred by any kind of immunity.
UC - voluntary quit - resentment of reprimand
Dunlap v. UCBR - Commonwealth Court - August 12, 2008 - unreported memorandum opinion
http://www.courts.state.pa.us/OpPosting/CWealth/out/320CD08_8-12-08.pdf
Mere disagreement with an employer’s management style or dissatisfaction and resentment of a reprimand does not constitute a necessitous and compelling reason to quit employment. Gioia v. UCBR, 661 A.2d 34 (Pa. Cmwlth. 1995).
http://www.courts.state.pa.us/OpPosting/CWealth/out/320CD08_8-12-08.pdf
Mere disagreement with an employer’s management style or dissatisfaction and resentment of a reprimand does not constitute a necessitous and compelling reason to quit employment. Gioia v. UCBR, 661 A.2d 34 (Pa. Cmwlth. 1995).
UC - appeal - filing by fax - date of receipt
Mountain Home Beagle Media v. UCBR - Commonealth Court - August 12, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/255CD08_8-12-08.pdf
Employer appeal to UCBR had to be filed on or before August 28th. It was properly held to be late where the employer faxed the appeal and UCBR records showed receipt of the appeal ten (10) days after appeal deadline, despite employer's claim that it had faxed the appeal within the time limits.
The party appealing bears the risk of loss in transmission because it chose facsimile as the method of filing. The regulation, 34 Pa. Code § 101.82 (b)(3)(i), says that "If the faxed appeal is received without a legible date of transmission, the filing date will be the date recorded by the Department appeal office, the workforce investment office or the Board when it receives the appeal." (emphasis added)
"The date and time stamp on the sender’s confirmation sheet is simply not reliable to establish the date of filing by fax with the Board of Review....There is no evidence of fraud, administrative breakdown or non-negligent conduct which would permit the appeal to be filed nunc pro tunc. Moreover, as the imprinted date of receipt on the Department’s fax machine indicates that the Department first received Employer’s appeal on September 6, 2007, and such document is legible, such date is deemed the filing date of the appeal. 34 Pa. Code § 101.82(b)(3)(i). Employer assumed the risks inherent in filing an appeal via fax transmission. The Board properly dismissed Employer’s appeal as untimely."
http://www.courts.state.pa.us/OpPosting/CWealth/out/255CD08_8-12-08.pdf
Employer appeal to UCBR had to be filed on or before August 28th. It was properly held to be late where the employer faxed the appeal and UCBR records showed receipt of the appeal ten (10) days after appeal deadline, despite employer's claim that it had faxed the appeal within the time limits.
The party appealing bears the risk of loss in transmission because it chose facsimile as the method of filing. The regulation, 34 Pa. Code § 101.82 (b)(3)(i), says that "If the faxed appeal is received without a legible date of transmission, the filing date will be the date recorded by the Department appeal office, the workforce investment office or the Board when it receives the appeal." (emphasis added)
"The date and time stamp on the sender’s confirmation sheet is simply not reliable to establish the date of filing by fax with the Board of Review....There is no evidence of fraud, administrative breakdown or non-negligent conduct which would permit the appeal to be filed nunc pro tunc. Moreover, as the imprinted date of receipt on the Department’s fax machine indicates that the Department first received Employer’s appeal on September 6, 2007, and such document is legible, such date is deemed the filing date of the appeal. 34 Pa. Code § 101.82(b)(3)(i). Employer assumed the risks inherent in filing an appeal via fax transmission. The Board properly dismissed Employer’s appeal as untimely."
Monday, August 11, 2008
child abuse - expungement - lack of supervision - noaccidental serious injury
Fayette County CYS v. DPW - Cmwlth. Court - 08/11/08 - UNREPORTED MEM. DECISION
http://www.courts.state.pa.us/OpPosting/CWealth/out/310CD08_8-11-08.pdf
The court affrmed DPW's grant of an expungement petition. The case involved the mother leaving a 4-month child alone for 5 minutes, during which time the child got out of a car seat and burned its hand on a nearby heater. The parties stipulated that the mother did not act intentionally.
The court found that mother's acts did not satisfy the legal standard for child abuse. 23 Pa. C.S. sec. 6303(a) requires an "injury that is the result of an intentional act that is committed with disregard of a substantial and unjustifiable risk.” Mother's acts were not intentional, as stipulated by the parties.
Nor did mother's leaving the child alone, under the circumstances, constitute "serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision ...which endangers a child’s life or development or impairs the child’s functioning. 23 Pa. C.S. §6303(b)(1)(iv). The court agreed with DPW that the child was the not the victim of a “prolonged or repeated lack of supervision when he was only left for five minutes and there was no evidence that the child was not cared for properly.
CYS argued that it had established child abuse consisting of a “non-accidental serious physical injury” under 23 Pa. C.S. §6303(b)(1)(i). The court rejected this, appling the rule in P.R. v. DPW, 569 Pa. 123, 801 A.2d 478 (2002), where the Supreme Court held that child abuse was established “upon a showing by the agency, through substantial evidence, that the injury resulted from criminal negligence.”
It defined criminal negligence as follows: A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
"Applying the standard from P.R., Mother’s act or failure to act in this case did not rise to the level of criminal negligence. As the ALJ noted, “[l]eaving the child for a brief (and not prolonged) period of time cannot be construed as a gross deviation from the standard of care that a reasonable person would observe. The mother could not have reasonably believed the child could have extricated himself from the seat and fallen into the heater.” We agree then that Mother’s act or failure to act did not cause a “non-accidental” serious physical injury to subject child."
http://www.courts.state.pa.us/OpPosting/CWealth/out/310CD08_8-11-08.pdf
The court affrmed DPW's grant of an expungement petition. The case involved the mother leaving a 4-month child alone for 5 minutes, during which time the child got out of a car seat and burned its hand on a nearby heater. The parties stipulated that the mother did not act intentionally.
The court found that mother's acts did not satisfy the legal standard for child abuse. 23 Pa. C.S. sec. 6303(a) requires an "injury that is the result of an intentional act that is committed with disregard of a substantial and unjustifiable risk.” Mother's acts were not intentional, as stipulated by the parties.
Nor did mother's leaving the child alone, under the circumstances, constitute "serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision ...which endangers a child’s life or development or impairs the child’s functioning. 23 Pa. C.S. §6303(b)(1)(iv). The court agreed with DPW that the child was the not the victim of a “prolonged or repeated lack of supervision when he was only left for five minutes and there was no evidence that the child was not cared for properly.
CYS argued that it had established child abuse consisting of a “non-accidental serious physical injury” under 23 Pa. C.S. §6303(b)(1)(i). The court rejected this, appling the rule in P.R. v. DPW, 569 Pa. 123, 801 A.2d 478 (2002), where the Supreme Court held that child abuse was established “upon a showing by the agency, through substantial evidence, that the injury resulted from criminal negligence.”
It defined criminal negligence as follows: A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
"Applying the standard from P.R., Mother’s act or failure to act in this case did not rise to the level of criminal negligence. As the ALJ noted, “[l]eaving the child for a brief (and not prolonged) period of time cannot be construed as a gross deviation from the standard of care that a reasonable person would observe. The mother could not have reasonably believed the child could have extricated himself from the seat and fallen into the heater.” We agree then that Mother’s act or failure to act did not cause a “non-accidental” serious physical injury to subject child."
Thursday, August 07, 2008
real property - tax sale - notice
Citimortgage, Inc. v. KDR Investments - Commonwealth Court - August 5, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1270CD07_8-5-08.pdf
Tax sale void because tax claim bureau (TCB) did not give owner required statutory notice. The TCB had attempted to give proper notice to the prior owner, but the new owner (Citimortgage) which had purchased the property at foreclosure sale, clearly did not get proper statutory notice.
proof of three separate notices required -"With respect to tax sales, the Bureau is required to give three separate types of notice: publication at least 30 days prior to the sale; notification to the owner by certified mail at least 30 days prior to the sale; and posting of the property at least ten days prior to the sale....“If any of the three types of notice is defective, the tax sale is void” ....The Bureau bears the burden of proving strict compliance with applicable notice provisions."
due process requires proper notice - "Due process requires that an owner be given notice prior to property being sold at a tax sale. As our Supreme Court has explained: 'Somehow, over the years, taxing authorities have lost sight of the fact that it is a momentous event under the United States and the Pennsylvania Constitutions when a government subjects a citizen’s property to forfeiture for the non-payment of taxes…. The collection of taxes…may not be implemented without due process of law that is guaranteed in the Commonwealth and federal constitutions; and this due process, as we have stated here, requires at a minimum that an owner of land be actually notified by government, if reasonably possible, before his land is forfeited by the state'....Because of these due process concerns, the “[n]otice provisions of the [Tax Sale] Law are to be strictly construed, and there must be strict compliance with such provisions to guard against deprivation of property without due process of law.”
strict compliance with statutory notice provisions required - Section 602(e)(1) of the Tax Sale Law [72 P.S. §5860.692] obligated the Bureau to give notice to the current owner “[a]t least thirty (30) days before the date of the sale, by United States certified mail.” It did not do so. Strict compliance with all notice requirements contained in the Tax Sale Law is an absolute requirement. The Bureau must be able to produce evidence that it gave this notice to the one who owns the property on the day of the tax sale. If the Bureau cannot produce this proof, the tax sale is invalid.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1270CD07_8-5-08.pdf
Tax sale void because tax claim bureau (TCB) did not give owner required statutory notice. The TCB had attempted to give proper notice to the prior owner, but the new owner (Citimortgage) which had purchased the property at foreclosure sale, clearly did not get proper statutory notice.
proof of three separate notices required -"With respect to tax sales, the Bureau is required to give three separate types of notice: publication at least 30 days prior to the sale; notification to the owner by certified mail at least 30 days prior to the sale; and posting of the property at least ten days prior to the sale....“If any of the three types of notice is defective, the tax sale is void” ....The Bureau bears the burden of proving strict compliance with applicable notice provisions."
due process requires proper notice - "Due process requires that an owner be given notice prior to property being sold at a tax sale. As our Supreme Court has explained: 'Somehow, over the years, taxing authorities have lost sight of the fact that it is a momentous event under the United States and the Pennsylvania Constitutions when a government subjects a citizen’s property to forfeiture for the non-payment of taxes…. The collection of taxes…may not be implemented without due process of law that is guaranteed in the Commonwealth and federal constitutions; and this due process, as we have stated here, requires at a minimum that an owner of land be actually notified by government, if reasonably possible, before his land is forfeited by the state'....Because of these due process concerns, the “[n]otice provisions of the [Tax Sale] Law are to be strictly construed, and there must be strict compliance with such provisions to guard against deprivation of property without due process of law.”
strict compliance with statutory notice provisions required - Section 602(e)(1) of the Tax Sale Law [72 P.S. §5860.692] obligated the Bureau to give notice to the current owner “[a]t least thirty (30) days before the date of the sale, by United States certified mail.” It did not do so. Strict compliance with all notice requirements contained in the Tax Sale Law is an absolute requirement. The Bureau must be able to produce evidence that it gave this notice to the one who owns the property on the day of the tax sale. If the Bureau cannot produce this proof, the tax sale is invalid.
Wednesday, August 06, 2008
disability - misc. issues
Burton v. Astrue - ED Pa. - July24, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0866P.pdf
ALJ decision erroneous and case remanded.
* ALJ failed to consider evidence subsequent to date last insured (DLI) - “Retrospective diagnosis of an impairment, even if uncorroborated by contemporaneous medical records, but corroborated by lay evidence relating back to the claimed period of disability can support a finding of past impairment.” Newell v. Comm’r, 347 F.3d 541, 547 (3d Cir. 2003)...As the Third Circuit wrote in another case, “[T]he lack of contemporaneous medical evidence of an objective nature is not necessarily determinative as to the onset date, and to the extent the ALJ’s decision was based on a legal determination that the onset date of an impairment had to be proved by such medical evidence, it is erroneous.” Kelley v. Barnhart, 138 Fed. App’x 505, 508 (3d Cir. 2005). The court remands this matter for the ALJ to reconsider his treatment of Plaintiff’s medical evidence subsequent to her date last insured
* ALJ used improper measure of severity - The “burden placed on an applicant at step two [of the sequential disability evaluation] is not an exacting one.” McCrea v. Comm’r of Soc. Sec. Admin., 370 F.3d 357, 360 (3d Cir. 2004). Rather, The step-two inquiry is a de minimis screening device to dispose ofgroundless claims. An impairment or combination of impairments can be found “not severe” only if the evidence establishes a slight abnormality or a combination of slight abnormalities which have no more than a minimal effect on an individual’s ability to work. . . Only those claimants with slight abnormalities that do not significantly limit any basic work activity can be denied benefits at step two. If the evidence presented by the claimant presents more than a slight abnormality, the step-two requirement of “severe” is met, and the sequential evaluation process should continue. Reasonable doubts on severity are to be resolved in favor of the claimant. Newell, 347 F.3d at 546 (internal citations and quotations omitted).
* failure to get treatment - The adjudicator must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. SSR 96-7p
* slowly progressive impairments - “Particularly in the case of slowly progressive impairments, it is not necessary for an impairment to have reached listing severity (i.e., be decided on medical grounds alone) before onset can be established.” SSR 83-20....With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available. In such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process. . . . . . . . How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred.
http://www.paed.uscourts.gov/documents/opinions/08D0866P.pdf
ALJ decision erroneous and case remanded.
* ALJ failed to consider evidence subsequent to date last insured (DLI) - “Retrospective diagnosis of an impairment, even if uncorroborated by contemporaneous medical records, but corroborated by lay evidence relating back to the claimed period of disability can support a finding of past impairment.” Newell v. Comm’r, 347 F.3d 541, 547 (3d Cir. 2003)...As the Third Circuit wrote in another case, “[T]he lack of contemporaneous medical evidence of an objective nature is not necessarily determinative as to the onset date, and to the extent the ALJ’s decision was based on a legal determination that the onset date of an impairment had to be proved by such medical evidence, it is erroneous.” Kelley v. Barnhart, 138 Fed. App’x 505, 508 (3d Cir. 2005). The court remands this matter for the ALJ to reconsider his treatment of Plaintiff’s medical evidence subsequent to her date last insured
* ALJ used improper measure of severity - The “burden placed on an applicant at step two [of the sequential disability evaluation] is not an exacting one.” McCrea v. Comm’r of Soc. Sec. Admin., 370 F.3d 357, 360 (3d Cir. 2004). Rather, The step-two inquiry is a de minimis screening device to dispose ofgroundless claims. An impairment or combination of impairments can be found “not severe” only if the evidence establishes a slight abnormality or a combination of slight abnormalities which have no more than a minimal effect on an individual’s ability to work. . . Only those claimants with slight abnormalities that do not significantly limit any basic work activity can be denied benefits at step two. If the evidence presented by the claimant presents more than a slight abnormality, the step-two requirement of “severe” is met, and the sequential evaluation process should continue. Reasonable doubts on severity are to be resolved in favor of the claimant. Newell, 347 F.3d at 546 (internal citations and quotations omitted).
* failure to get treatment - The adjudicator must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. SSR 96-7p
* slowly progressive impairments - “Particularly in the case of slowly progressive impairments, it is not necessary for an impairment to have reached listing severity (i.e., be decided on medical grounds alone) before onset can be established.” SSR 83-20....With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available. In such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process. . . . . . . . How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred.
mortgage foreclosure - Rooker-Feldman Doctrine
Laychock v. Wells Fargo Home Mortgage - ED Pa. - July 23, 2008
http://www.paed.uscourts.gov/documents/opinions/08d0867p.pdf
The Rooker-Feldman doctrine barred borrower's predatory lending claims in federal court against lender, where lender got default judgment mortgage foreclosure in state court, and state court refused borrower's petition to open judgment.
The Rooker-Feldman Doctrine “prevents ‘inferior’ federal courts from sitting as appellate courts for state court judgments.” In re Knapper, 407 F.3d 573, 580 (3d Cir. 2005). Rooker-Feldman applies when: (1) “the federal claimwas actually litigated in state court prior to the filing of the federal action” or (2) “if the federal claim is inextricably intertwined with the state adjudication.” Id.
A federal and state case are “inextricably intertwined” when “the federal court must take an action thatwould negate the state court’s judgment” orwhen the plaintiff’s sought relief “would prevent a state court from enforcing its orders.” Id. at 581. “If the relief requested in the federal action requires determining that the state court’s decision is wrong or would void the state court’s ruling, then the issues are inextricably intertwined and the district court has no subjectmatter jurisdiction to hear the suit.”
The doctrine is implicated here, because all of plaintiff's claims would require the federal court to find that the state court decision, from which there was no appeal, was wrong.
http://www.paed.uscourts.gov/documents/opinions/08d0867p.pdf
The Rooker-Feldman doctrine barred borrower's predatory lending claims in federal court against lender, where lender got default judgment mortgage foreclosure in state court, and state court refused borrower's petition to open judgment.
The Rooker-Feldman Doctrine “prevents ‘inferior’ federal courts from sitting as appellate courts for state court judgments.” In re Knapper, 407 F.3d 573, 580 (3d Cir. 2005). Rooker-Feldman applies when: (1) “the federal claimwas actually litigated in state court prior to the filing of the federal action” or (2) “if the federal claim is inextricably intertwined with the state adjudication.” Id.
A federal and state case are “inextricably intertwined” when “the federal court must take an action thatwould negate the state court’s judgment” orwhen the plaintiff’s sought relief “would prevent a state court from enforcing its orders.” Id. at 581. “If the relief requested in the federal action requires determining that the state court’s decision is wrong or would void the state court’s ruling, then the issues are inextricably intertwined and the district court has no subjectmatter jurisdiction to hear the suit.”
The doctrine is implicated here, because all of plaintiff's claims would require the federal court to find that the state court decision, from which there was no appeal, was wrong.
real property - tax sale - notice
Wallace v. Tax Claim Bureau - Cmwlth. Court - 07-28-08 - UNREPORTED MEM. DECISION
http://www.courts.state.pa.us/OpPosting/CWealth/out/777CD07_7-28-08.pdf
Although decedent's survivors had actual notice of upcoming tax sale, they did not receive required statutory notice under Real Estate Tax Sale Law, 72 P.S. 5860.607(a), so tax sale was set aside.
The notice provisions of the RETSL "are to be strictly construed." "Strict compliance with the notice porvisions is essential to prevent the deprivateion of property without due process."
Here, tax claim bureau knew that there were notice problems. The official notice was returned marked "unclaimed." The sheriff's affidavit of posting noted the the property owner was "deceased." And someone other than the owner signed for a notice. All of this triggered a "statutory obligation to go beyond the notice requirements found in Section 602 of the ERTSL and conduct the additional notification efforts provided in Sectin 607.1," which the tax claim bureau failed to do. The TCB made no "additional notification efforts" that "ordinary common sense business practices would dictate" under the circumstances.
This was not a "techical defect" which could be overlooked in "very narrow circumstances. Failure to comply with the statutory notice requirement was a "substantive deficiency" since appellants "never received official, statutorily required notice of the pending tax sale....so far as the appellant was denied the information necessary and the reasonable opportunity to avoid the pending tax sale."
http://www.courts.state.pa.us/OpPosting/CWealth/out/777CD07_7-28-08.pdf
Although decedent's survivors had actual notice of upcoming tax sale, they did not receive required statutory notice under Real Estate Tax Sale Law, 72 P.S. 5860.607(a), so tax sale was set aside.
The notice provisions of the RETSL "are to be strictly construed." "Strict compliance with the notice porvisions is essential to prevent the deprivateion of property without due process."
Here, tax claim bureau knew that there were notice problems. The official notice was returned marked "unclaimed." The sheriff's affidavit of posting noted the the property owner was "deceased." And someone other than the owner signed for a notice. All of this triggered a "statutory obligation to go beyond the notice requirements found in Section 602 of the ERTSL and conduct the additional notification efforts provided in Sectin 607.1," which the tax claim bureau failed to do. The TCB made no "additional notification efforts" that "ordinary common sense business practices would dictate" under the circumstances.
This was not a "techical defect" which could be overlooked in "very narrow circumstances. Failure to comply with the statutory notice requirement was a "substantive deficiency" since appellants "never received official, statutorily required notice of the pending tax sale....so far as the appellant was denied the information necessary and the reasonable opportunity to avoid the pending tax sale."
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