Cooper et al. v. SEPTA - 3d Cir. - November 26, 2008
http://www.ca3.uscourts.gov/opinarch/071522p.pdf
SEPTA not entitled to 11th Amendment immunity for plaintiffs' FLSA claims for wages for pre-safety inspections.
Wednesday, November 26, 2008
issue preclusion - UC referee decision has no preclusive effect in wrongful discharge case
Gonzalez v. AMR, American Airlines - 3d Circuit - November 26, 2008
http://www.ca3.uscourts.gov/opinarch/065161p.pdf
A UC claimant lost a referee hearing and took no further appeal. He then sued under the state wrongful discharge statute, and the employer moved to dismiss on issue preclusion grounds.
There is a four-prong test for issue preclusion, including whether the issue determined in the prior action the same as that in the subsequent action.
In this case, there was no preclusive effect since, the issue in the UC case - willful misconduct - was not the same as the issues involved in the employee's cause of action under the state wrongful discharge statute.
http://www.ca3.uscourts.gov/opinarch/065161p.pdf
A UC claimant lost a referee hearing and took no further appeal. He then sued under the state wrongful discharge statute, and the employer moved to dismiss on issue preclusion grounds.
There is a four-prong test for issue preclusion, including whether the issue determined in the prior action the same as that in the subsequent action.
In this case, there was no preclusive effect since, the issue in the UC case - willful misconduct - was not the same as the issues involved in the employee's cause of action under the state wrongful discharge statute.
Tuesday, November 25, 2008
admin. law - adequate findings - remand
Resource Staff, Inc. v. UCBR - Cmwlth. Court - November 25, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/779CD08_11-25-08.pdf
The court ordered a remand of this UC self-employment case, because of the UCBR's failure to "address all of the factual issues that are essential to the legal determination of Claimant's eligibility for benefits. "We recognize that the record contains ample testimony and other evidence that would support additional, necessary findings; however, it is for the UCBR, and not this court, to provide findings of fact that are sufficiently specific" to decide the legal issues in the case.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/779CD08_11-25-08.pdf
The court ordered a remand of this UC self-employment case, because of the UCBR's failure to "address all of the factual issues that are essential to the legal determination of Claimant's eligibility for benefits. "We recognize that the record contains ample testimony and other evidence that would support additional, necessary findings; however, it is for the UCBR, and not this court, to provide findings of fact that are sufficiently specific" to decide the legal issues in the case.
UC - self-employment
Resource Staff, Inc. v. UCBR - Cmwlth. Court - November 25, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/779CD08_11-25-08.pdf
This case was remanded because of the UCBR's failure to "address all of the factual issues that are essential to the legal determination of Claimant's eligibility for benefits " and the issue of whether claimant was an employee or independent contractor.
In its opinion the court noted the following:
- A determination regarding the existence of an employer/employee relationship is a question of law that depends upon the unique facts of each case. Danielle Viktor, Ltd. v. DLI, Bureau of Tax Operations, 586 Pa. 196, 892 A.2d 781 (2006).
- 43 P.S. §753(l)(2)(B) establishes a presumption that an individual earning wages for services rendered is an employee, as opposed to an independent contractor, and it also allows a putative employer to overcome that presumption by showing that: (a) the individual was free from control and direction in the performance of his work; and (b) in the performance of his services, the individual was customarily engaged in an independently established business or occupation. Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee.
- The issue of control of the putative employer "must be based on the totality of circumstances" and involves "many factors, such as: whether there was a fixed rate of remuneration; whether taxes were deducted from the claimant’s pay; whether the presumed employer supplied equipment and/or training; whether the presumed employer set the time and location for the work; whether the presumed employer had the right to monitor the claimant’s work and review his performance; and the requirements and demands of the presumed employer. No single factor is controlling."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/779CD08_11-25-08.pdf
This case was remanded because of the UCBR's failure to "address all of the factual issues that are essential to the legal determination of Claimant's eligibility for benefits " and the issue of whether claimant was an employee or independent contractor.
In its opinion the court noted the following:
- A determination regarding the existence of an employer/employee relationship is a question of law that depends upon the unique facts of each case. Danielle Viktor, Ltd. v. DLI, Bureau of Tax Operations, 586 Pa. 196, 892 A.2d 781 (2006).
- 43 P.S. §753(l)(2)(B) establishes a presumption that an individual earning wages for services rendered is an employee, as opposed to an independent contractor, and it also allows a putative employer to overcome that presumption by showing that: (a) the individual was free from control and direction in the performance of his work; and (b) in the performance of his services, the individual was customarily engaged in an independently established business or occupation. Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee.
- The issue of control of the putative employer "must be based on the totality of circumstances" and involves "many factors, such as: whether there was a fixed rate of remuneration; whether taxes were deducted from the claimant’s pay; whether the presumed employer supplied equipment and/or training; whether the presumed employer set the time and location for the work; whether the presumed employer had the right to monitor the claimant’s work and review his performance; and the requirements and demands of the presumed employer. No single factor is controlling."
Monday, November 24, 2008
ripeness - delay in court review
Philips Bros. Electrical Contractors v. Turnpike Commission - November 24, 2008 - Cmwlth. Court
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/318CD08_11-24-08.pdf
Held, that there was an adequately developed record and sufficiently concrete contest to rule on prospective bidder's protest filed in anticipation of solicitation of bids. The case was thus ripe for review by court.
The doctrine of ripeness arises out of a judicial concern not to become involved in abstract disagreements of administrative policies. Texas Keystone, Inc. v. DCNR, 851 A.2d 228 (Pa. Cmwlth. 2004). The doctrine insists on a concrete contest, where there is a final agency action so that the courts can properly exercise their function. Id. Court rulings applying the ripeness doctrine are premised on policies of sound jurisprudence; courts should not give answers to academic questions, render advisory opinions, or make decisions based on assertions of hypothetical events that might occur in the future. Phila. Entm’t & Dev. Partners, L.P. v. City of Phila., 594 Pa. 468, 937 A.2d 385 (2007). Township of Derry v. Pa. Dep’t of Labor & Industry, 593 Pa. 480, 482, 932 A.2d 56, 57-58 (2007).
In deciding whether the doctrine of ripeness bars our consideration of a declaratory judgment action, we consider “whether the issues are adequately developed for judicial review and what hardships the parties will suffer if review is delayed.” Alaica v. Ridge, 784 A.2d 837, 842 (Pa. Cmwlth. 2001)...The factors we consider under our “adequately developed” inquiry include: whether the claim involves uncertain and contingent events that may not occur as anticipated or at all; the amount of fact finding required to resolve the issue; and whether the parties to the action are sufficiently adverse. Id. Under the “hardship” analysis, we may address the merits even if the case is not as fully developed as we would like, if refusal to do so would place a demonstrable hardship on the party. Id.
However, the court held that there was no "requisite harm occasioned by delay in review...." The harms alleged pertained to the merits of the case and not to anything caused by delayed review. The "Prospective Bidder suffers no demonstrable hardship if review is delayed until the time frame set forth in the statute....[The statute] provides a complete remedy upon timely review" and the court saw "no demonstrable harm to the parties if review is delayed."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/318CD08_11-24-08.pdf
Held, that there was an adequately developed record and sufficiently concrete contest to rule on prospective bidder's protest filed in anticipation of solicitation of bids. The case was thus ripe for review by court.
The doctrine of ripeness arises out of a judicial concern not to become involved in abstract disagreements of administrative policies. Texas Keystone, Inc. v. DCNR, 851 A.2d 228 (Pa. Cmwlth. 2004). The doctrine insists on a concrete contest, where there is a final agency action so that the courts can properly exercise their function. Id. Court rulings applying the ripeness doctrine are premised on policies of sound jurisprudence; courts should not give answers to academic questions, render advisory opinions, or make decisions based on assertions of hypothetical events that might occur in the future. Phila. Entm’t & Dev. Partners, L.P. v. City of Phila., 594 Pa. 468, 937 A.2d 385 (2007). Township of Derry v. Pa. Dep’t of Labor & Industry, 593 Pa. 480, 482, 932 A.2d 56, 57-58 (2007).
In deciding whether the doctrine of ripeness bars our consideration of a declaratory judgment action, we consider “whether the issues are adequately developed for judicial review and what hardships the parties will suffer if review is delayed.” Alaica v. Ridge, 784 A.2d 837, 842 (Pa. Cmwlth. 2001)...The factors we consider under our “adequately developed” inquiry include: whether the claim involves uncertain and contingent events that may not occur as anticipated or at all; the amount of fact finding required to resolve the issue; and whether the parties to the action are sufficiently adverse. Id. Under the “hardship” analysis, we may address the merits even if the case is not as fully developed as we would like, if refusal to do so would place a demonstrable hardship on the party. Id.
However, the court held that there was no "requisite harm occasioned by delay in review...." The harms alleged pertained to the merits of the case and not to anything caused by delayed review. The "Prospective Bidder suffers no demonstrable hardship if review is delayed until the time frame set forth in the statute....[The statute] provides a complete remedy upon timely review" and the court saw "no demonstrable harm to the parties if review is delayed."
Thursday, November 20, 2008
federal courts - private right of action - No Child Left Behind
Newark Parents Assn. v. Newark Public Schools - 3d Circuit - November 20, 2008
http://www.ca3.uscourts.gov/opinarch/074002p.pdf
In a case of "first impression in the federal courts," the 3d Circuit affirmed a decision concluding that Congress did not confer on individuals an enforceable right of action under the No Child Left Behind Act (“NCLBA” or the “Act”), 20 U.S.C. § 6301 et seq., and 42 U.S.C. § 1983.
The court dismissed an action by parents against the school system, alleging that because the Newark public school system failed to live up to its obligations under certain provisions of the Act, appellants are entitled to privately enforce those provisions.
http://www.ca3.uscourts.gov/opinarch/074002p.pdf
In a case of "first impression in the federal courts," the 3d Circuit affirmed a decision concluding that Congress did not confer on individuals an enforceable right of action under the No Child Left Behind Act (“NCLBA” or the “Act”), 20 U.S.C. § 6301 et seq., and 42 U.S.C. § 1983.
The court dismissed an action by parents against the school system, alleging that because the Newark public school system failed to live up to its obligations under certain provisions of the Act, appellants are entitled to privately enforce those provisions.
UC - willful misconduct - bank employee
Stezzi v. UCBR - Cmwlth. Court - Novembwer 20, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/913CD08_11-20-08.pdf
Claimant, a bank tell/manager, was held to be guilty of willful misconduct for putting four night deposit bags in a waste basket, in violation of employer procedures about processing money bags, and causing a monetary loss to employer of about $6275.00.
The court found "no merit in Claimant’s contention that the Board held her to a higher standard of conduct in violation of Grieb v. UCBR, 573 Pa. 594, 827 A.2d 422 (2003), that she was held to a higher standard than a management employee who must inspect teller areas for items of value left unprotected at the end of the day.
Contrary to Claimant’s assertion, the Board’s statement simply recognizes every employer may rightfully expect its employees will not place bags of money in trash cans. The statement represents an alternate legal theory for its decision to deny benefits. See Tongel v. UCBR, 501 A.2d 716 (Pa. Cmwlth. 1985) (work rule violation need not be shown where the behavior standard is obvious, and the employee's conduct is so inimical to the employer's best interests that discharge is a natural result).
The court rejected tha argument that "the Board’s conclusion that her conduct fell below the standards of behavior an employer may rightfully expect of its employees is ludicrous because her trash can was in a secured area.....It does not matter the general area may have been secure. Employer has specific rules in place for handling night deposit bags, which Claimant admittedly violated."
The court has "repeatedly held a bank employee’s failure to follow an employer’s procedure may constitute willful misconduct so as to disqualify the employee from receiving benefits. See Fusaro v. UCBR, 483 A.2d 1013 (Pa. Cmwlth. 1984) (teller discharged for intentionally failing to follow employer’s check cashing policies ineligible for benefits); Adolphus v. UCBR, 471 A.2d 152 (Pa. Cmwlth. 1984) (teller discharged for intentionally failing to follow check cashing, money order, and cash counting procedures ineligible for benefits); Schmutz v. UCBR, 459 A.2d 1378 (Pa. Cmwlth. 1983) (teller discharged for intentionally failing to enter all transactions into computer in violation of bank procedures ineligible for benefits).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/913CD08_11-20-08.pdf
Claimant, a bank tell/manager, was held to be guilty of willful misconduct for putting four night deposit bags in a waste basket, in violation of employer procedures about processing money bags, and causing a monetary loss to employer of about $6275.00.
The court found "no merit in Claimant’s contention that the Board held her to a higher standard of conduct in violation of Grieb v. UCBR, 573 Pa. 594, 827 A.2d 422 (2003), that she was held to a higher standard than a management employee who must inspect teller areas for items of value left unprotected at the end of the day.
Contrary to Claimant’s assertion, the Board’s statement simply recognizes every employer may rightfully expect its employees will not place bags of money in trash cans. The statement represents an alternate legal theory for its decision to deny benefits. See Tongel v. UCBR, 501 A.2d 716 (Pa. Cmwlth. 1985) (work rule violation need not be shown where the behavior standard is obvious, and the employee's conduct is so inimical to the employer's best interests that discharge is a natural result).
The court rejected tha argument that "the Board’s conclusion that her conduct fell below the standards of behavior an employer may rightfully expect of its employees is ludicrous because her trash can was in a secured area.....It does not matter the general area may have been secure. Employer has specific rules in place for handling night deposit bags, which Claimant admittedly violated."
The court has "repeatedly held a bank employee’s failure to follow an employer’s procedure may constitute willful misconduct so as to disqualify the employee from receiving benefits. See Fusaro v. UCBR, 483 A.2d 1013 (Pa. Cmwlth. 1984) (teller discharged for intentionally failing to follow employer’s check cashing policies ineligible for benefits); Adolphus v. UCBR, 471 A.2d 152 (Pa. Cmwlth. 1984) (teller discharged for intentionally failing to follow check cashing, money order, and cash counting procedures ineligible for benefits); Schmutz v. UCBR, 459 A.2d 1378 (Pa. Cmwlth. 1983) (teller discharged for intentionally failing to enter all transactions into computer in violation of bank procedures ineligible for benefits).
Monday, November 17, 2008
UC - credibility; fact-finding; refusal to obey employer directive
Penn-Delco Schoot District v. UCBR - Cmwlth. Court - November 17, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/537CD08_11-17-08.pdf
1) The UCBR is the ultimate arbiter of credibility and fact-finding, citing Peak v. UCBR, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985). and Treon v. UCBR, 499 Pa. 455, 453 A.2d 960 (1982)
2) "[E]xcessive absenteeism, when properly reported and justified, is not willful misconduct, and illness is a proper justification. See Sprague v. UCBR, 647 A.2d 675, 680 (Pa. Cmwlth. 1994) (six properly reported absences based on illness did not constitute willful misconduct); Tri-Corp v. UCBR, 432 A.2d 1158, 1159–60 (Pa. Cmwlth. 1981) (properly reported two week leave for illness did not constitute willful misconduct).
3) “Where an employee is discharged for refusing or failing to follow an employer’s directive, both the reasonableness of the demand and the reasonableness of the employee's refusal must be examined.” Dougherty v. UCBR, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).
Where the action of the employee is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. UCBR, 450 A.2d 305 (Pa. Cmwlth. 1982). “In other words, if there was ‘good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.” Id. at 308.
Here, it is undisputed that Employer scheduled a mandatory meeting with Claimant, and Claimant did not attend....The Board determined Employer’s mandatory meeting directive was unreasonable in light of Claimant’s medical documentation which had not yet released her to return to work. The Board also concluded Claimant had good cause to refuse Employer’s unreasonable request.
The Board’s determinations are supported by substantial evidence. Accordingly, we affirm the Board’s conclusion that Claimant’s failure to attend the mandatory meeting did not constitute willful misconduct. See Thompson v. UCBR, 723 A.2d 743, 744 (Pa. Cmwlth. 1999) (finding claimant’s illness to be good cause for violating employer rule requiring absent employees to find replacement workers); Kindrew v. UCBR, 388 A.2d 801, 802–03 (Pa. Cmwlth. 1978) (finding an employer’s requirement that claimant attend work or face dismissal unreasonable if claimant were ill).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/537CD08_11-17-08.pdf
1) The UCBR is the ultimate arbiter of credibility and fact-finding, citing Peak v. UCBR, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985). and Treon v. UCBR, 499 Pa. 455, 453 A.2d 960 (1982)
2) "[E]xcessive absenteeism, when properly reported and justified, is not willful misconduct, and illness is a proper justification. See Sprague v. UCBR, 647 A.2d 675, 680 (Pa. Cmwlth. 1994) (six properly reported absences based on illness did not constitute willful misconduct); Tri-Corp v. UCBR, 432 A.2d 1158, 1159–60 (Pa. Cmwlth. 1981) (properly reported two week leave for illness did not constitute willful misconduct).
3) “Where an employee is discharged for refusing or failing to follow an employer’s directive, both the reasonableness of the demand and the reasonableness of the employee's refusal must be examined.” Dougherty v. UCBR, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).
Where the action of the employee is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. UCBR, 450 A.2d 305 (Pa. Cmwlth. 1982). “In other words, if there was ‘good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.” Id. at 308.
Here, it is undisputed that Employer scheduled a mandatory meeting with Claimant, and Claimant did not attend....The Board determined Employer’s mandatory meeting directive was unreasonable in light of Claimant’s medical documentation which had not yet released her to return to work. The Board also concluded Claimant had good cause to refuse Employer’s unreasonable request.
The Board’s determinations are supported by substantial evidence. Accordingly, we affirm the Board’s conclusion that Claimant’s failure to attend the mandatory meeting did not constitute willful misconduct. See Thompson v. UCBR, 723 A.2d 743, 744 (Pa. Cmwlth. 1999) (finding claimant’s illness to be good cause for violating employer rule requiring absent employees to find replacement workers); Kindrew v. UCBR, 388 A.2d 801, 802–03 (Pa. Cmwlth. 1978) (finding an employer’s requirement that claimant attend work or face dismissal unreasonable if claimant were ill).
Friday, November 14, 2008
UC- appeal - timeliness
Carson Helicopters v. UCBR - Cmwlth. Court - November 14, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/253CD08_11-14-08.pdf
Employer should have been granted permission to appeal nunc pro tunc where the referee decision was erroneously dated 5 days prior to the date of the actual referee. Both dates were listed on the Referee Decision. In addition, the Board should have accepted the employer's hearsay testimony at the hearing, because it was corroborated by official documents - the referee decision and envelope in which it was mailed.
Moreover, under any state of facts, it is uncontroverted that the Board received Employer’s appeal before the statutory 15-day deadline had expired. "The Board’s conduct in this manner was not only sloppy but shocking in its disregard of its statutory responsibilities."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/253CD08_11-14-08.pdf
Employer should have been granted permission to appeal nunc pro tunc where the referee decision was erroneously dated 5 days prior to the date of the actual referee. Both dates were listed on the Referee Decision. In addition, the Board should have accepted the employer's hearsay testimony at the hearing, because it was corroborated by official documents - the referee decision and envelope in which it was mailed.
Moreover, under any state of facts, it is uncontroverted that the Board received Employer’s appeal before the statutory 15-day deadline had expired. "The Board’s conduct in this manner was not only sloppy but shocking in its disregard of its statutory responsibilities."
Wednesday, November 12, 2008
UC - vol. quit - sexual harassment
Willow Valley Retirement Community v. UCBR - Cmwlth. Court - 11-12-08 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/188CD08_11-12-08.pdf
Claimant testified that the ER vice-president/COO told her that she "needed to show more emotion and use the feminine side of her personality in order to improve her business relationships." This evidence was unchallenged by the employer.
The court held that these comments "are sexually discriminatory and degrading on their face. Claimant reasonably understood his comments to mean that she should be less strong and play up her sexuality in the performance of her job." The comments "went beyond conduct that must be tolerated in a work place and produced circumstances which would compel a reasonable person to terminate employment."
Claimant acted reasonably in resigning, without going through regular complaint channels. She "believed that there was no recourse to remedy the situation," since the vice president/COO was the second highest person in the organization.
Her attempt to rescind her resignation after the employer took steps to replace her is irrelevant, because this was a voluntary quit with cause of a necessitous and compelling reason. Because "Claimant has demonstrated circumstances which produced real and substantial pressure to terminate employment, Claimant only needed to show that she made a reasonable attempt to preserve her employment relationship or show that such action was futile to remain eligible for benefits."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/188CD08_11-12-08.pdf
Claimant testified that the ER vice-president/COO told her that she "needed to show more emotion and use the feminine side of her personality in order to improve her business relationships." This evidence was unchallenged by the employer.
The court held that these comments "are sexually discriminatory and degrading on their face. Claimant reasonably understood his comments to mean that she should be less strong and play up her sexuality in the performance of her job." The comments "went beyond conduct that must be tolerated in a work place and produced circumstances which would compel a reasonable person to terminate employment."
Claimant acted reasonably in resigning, without going through regular complaint channels. She "believed that there was no recourse to remedy the situation," since the vice president/COO was the second highest person in the organization.
Her attempt to rescind her resignation after the employer took steps to replace her is irrelevant, because this was a voluntary quit with cause of a necessitous and compelling reason. Because "Claimant has demonstrated circumstances which produced real and substantial pressure to terminate employment, Claimant only needed to show that she made a reasonable attempt to preserve her employment relationship or show that such action was futile to remain eligible for benefits."
real property - tax sale - notice
Popple v. Luzerne Co. Tax Claim Bureau - Cmwlth. Court - November 12, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2224CD07_11-12-08.pdf
Former owners (F/O) objected to tax sale nearly four years after it took place. The court held that due process was satisfied and F/Os were "personally served" and had actual notice of tax sale under 72 P.S. §5860.602 where
- the notice was sent to the "care of" address listed on the deed and
- the address was the same as two businesses (including a realty co.) which they owned
- was signed for by a person with the same last name, as their agent, who had many times signed for mail for the F/Os
"[A]ctual notice of a pending tax sale waives strict compliance with statutory notice require-ments, and technical deficiencies in those notice requirements do not invalidate a tax sale." Stanford-Gale v. Tax Claim Bureau, 816 A.2d 1214, 1217 (Pa. Cmwlth. 2003) "[A]ctual notice is such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put him upon inquiry." Sabbeth v. Tax Claim Bureau, 714 A.2d 514, 517 (Pa. Cmwlth. 1998).
Here, the court considered the "totality of the circumstances," including that that"Bureau sent notice to the address for the grantees indicated on the deed, and it was signed for by someone with the same last name who was permitted by the Post Office to receive certified mail at this post office box, who indicated his capacity as 'Agent' and who signed for certified mail addressed to the [F/Os] on other occasions. As a result, the Court concludes that the Bureau followed common sense business practices and that the [former owners] had implied actual notice...."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2224CD07_11-12-08.pdf
Former owners (F/O) objected to tax sale nearly four years after it took place. The court held that due process was satisfied and F/Os were "personally served" and had actual notice of tax sale under 72 P.S. §5860.602 where
- the notice was sent to the "care of" address listed on the deed and
- the address was the same as two businesses (including a realty co.) which they owned
- was signed for by a person with the same last name, as their agent, who had many times signed for mail for the F/Os
"[A]ctual notice of a pending tax sale waives strict compliance with statutory notice require-ments, and technical deficiencies in those notice requirements do not invalidate a tax sale." Stanford-Gale v. Tax Claim Bureau, 816 A.2d 1214, 1217 (Pa. Cmwlth. 2003) "[A]ctual notice is such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put him upon inquiry." Sabbeth v. Tax Claim Bureau, 714 A.2d 514, 517 (Pa. Cmwlth. 1998).
Here, the court considered the "totality of the circumstances," including that that"Bureau sent notice to the address for the grantees indicated on the deed, and it was signed for by someone with the same last name who was permitted by the Post Office to receive certified mail at this post office box, who indicated his capacity as 'Agent' and who signed for certified mail addressed to the [F/Os] on other occasions. As a result, the Court concludes that the Bureau followed common sense business practices and that the [former owners] had implied actual notice...."
Monday, November 10, 2008
mortgage - particular debt v. open-ended; rules of prof. conduct do not create cause of action
Weiss & Associates v. Tulloch - Superior Court - October 30, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56033_08.pdf
Plaintiff law firm took several mortgages to secure payment of attorney fees by defendant. Plaintiff got a portion of the proceeds on two properties, then foreclosed on a third for alleged ongoing liability for attorney fees by defendants.
Held, the mortgage on the third property was not an open-ended one but a "formal documents of a specific character that should be strictly construed" to cover payments of a motrgage that covered only a specific advance of funds and nor more. Here, neither than note nor the mortgage indicated coverage of future attorney fees.
Judgment for plaintiff vacated and case remanded for entry of judgment for defendant.
Defendant's claim that plaintiff's violation of the rules of professional conduct, concerning conflicts of interest, was rejected. The rules address grounds for disciplinary action against attorneys and are not substantive law. A violation of the rules does not create a cause of action.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56033_08.pdf
Plaintiff law firm took several mortgages to secure payment of attorney fees by defendant. Plaintiff got a portion of the proceeds on two properties, then foreclosed on a third for alleged ongoing liability for attorney fees by defendants.
Held, the mortgage on the third property was not an open-ended one but a "formal documents of a specific character that should be strictly construed" to cover payments of a motrgage that covered only a specific advance of funds and nor more. Here, neither than note nor the mortgage indicated coverage of future attorney fees.
Judgment for plaintiff vacated and case remanded for entry of judgment for defendant.
Defendant's claim that plaintiff's violation of the rules of professional conduct, concerning conflicts of interest, was rejected. The rules address grounds for disciplinary action against attorneys and are not substantive law. A violation of the rules does not create a cause of action.
Thursday, November 06, 2008
Home Improvement Consumer Protection Act (HICPA) - summary
Summary of Home Improvement Consumer Protection Act (HICPA)
Act 132 of 2008; Act of October 17, 2008- SB 100, PN 2484 - effective July 1, 2009
A. § 2 - Definitions – highlights
• Covers repair, replacement, demolition, construction, painting, HVAC, etc.
• Protects only private residences
• Protects only primary residence, if owner has three or more residences
• Protects only owner or those authorized to act on owner’s behalf
• Total cash price must be more than $500
• New home construction not covered
B. § 3 - Contractor Registration with Bureau of Consumer Protection
• Registration required before doing any work or holding out as “contractor”
• Public access to registration information – toll-free number
• No HICPA licenses can be granted to licensees under the Secondary Mortgage Loan Act, 7 P.S. §6601 et seq., or the Mortgage Banker/Brokers and Consumer Equity Protection Act, 63 P.S. §456.101 et seq.
C. § 4 - Registration information
Contractors must provide the following information to the Bureau of Consumer Protection:
• Name(s), address, driver’s license #, federal employer ID #, SSN
• Prior relevant criminal offenses (fraud, etc.)
• Prior bankruptcies – last 10 years
• Civil judgments related to home improvement (H/I) transaction
• Proof of liability insurance – personal injury ($50k), property damage ($5k)
D. § 7(a) - Home Improvement Contracts – not valid/enforceable, unless...
• Written, legible, signed by all parties
• ID info on all contractors, subcontractors
• Contains the entire agreement
• Description of work, materials, specs
• No changes without written change order
• Sales price, down payments
• Contractor agreement to maintain liability insurance
• Toll-free number to Bureau of Consumer Protection
• Notice of right of rescission w/o penalty w/in 3 business days of signing
• Copy of completed contract to owner at time of execution
E. § 7(e) - Voidable clauses – voidable by the owner
• Hold-harmless clause
• Waiver of any local/state/federal safety or building code requirement
• Confession of judgment clause
• Waiver of right to jury trial
• Assignment of wages
• Agreement not to assert any claim or defense
• Grant of attorney fees or costs to contractor
• Release of liability for collections of payments, repossession
• Waiver of rights under HICPA
• Automatic/recurring renewal provision (w/exceptions)
F. § 7(f) - Home improvement retailer contracts (HIRC)
• Covers retailers (undefined) with >$50M net worth who do not perform home improvements
• H/I retailer shall comply with HICPA contract requirements (sec. 7 of SB 100)
• HIRCs not valid or enforceable, unless in writing with all of following:
▫ name, address, phone of retailer
▫ information about person signing for retailer
▫ complies with most provisions in (D), above
G. § 7(g) - Contractor right of equitable recovery
• Nothing in HICPA precludes contractor from recovery of payment
• For work performed
• Based on reasonable value of services requested by the owner, if
• Contractor has complied with (D), above, and
• Court determines it would be “inequitable” to deny such recovery
H. § 7(e) - Arbitration clause
• Nothing in this act shall preclude a court from setting aside an arbitration clause on any basis permitted under Pennsylvania law.”
• If the contract contains an arbitration clause, it shall meet the following requirements or be deemed void upon motion of either party
▫ text of clause must be in capital letters
▫ 12 pt. bold-face type
▫ on separate page from rest of contract
▫ separate line for each party to show assent to be bound
▫ not effective unless both parties sign and date
▫ shall clearly state whether decision is binding or appealable to court
▫ shall state whether facts/documents/decision are confidential
• This provision might well be pre-empted by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. See e.g., Gay v. CreditInform, 511 F.3d 369 (3d Cir. 2007).
I. § 8(a) - Home Improvement Fraud is a crime
A person commits “home improvement fraud” if with the intent to defraud, or, injure anyone, or with the knowledge that he is facilitating fraud or injury by anyone, the actor:
• Makes a false/misleading statement to encourage a person to enter into a H/I contract, or to justify an increase in a previously agreed upon price; or
• Receives an advance payment and fails to perform the contract when specified, and fails to return the payment. Exception: force majeure, labor strike, etc.; or
• Misrepresents or conceals identifying contractor ID information – while soliciting a person to enter into an agreement; or
• Damages property to induce a person to enter into a contract; or
• Falsely represents a government affiliation to induce entry into a contract; or
• Misrepresents an item as a special order; or
• Alters a H/I contract or payment agreement without the consumer’s consent; or
• Publishes a false or deceptive advertisement, in violation of relevant state law about advts.
J. § 8(b), (c), (d) - Prosecution of Home Improvement Fraud
• Grading – M-1 or felony, depending on $, age of victim, priors etc.
• Penalties may include revocation/suspension of H/I contractor certificate
• DAs have authority to investigate and start prosecutions
• State Atty. Genl. can investigate/prosecute multi-county violators
K. § 9 - Prohibited Acts
No person shall:
• Fail to register, as required
• Fail to refund money w/in 10 days of request for refund, if all the following apply
▫ no substantial work has been performed at time of request
▫ more than 45 days have elapsed since starting date in contract
• Accept a certificate of completion or the like, knowing that it is false or work isn’t complete
• Knowingly use a false proof of performance in order to make/accept an assignment, or get/grant credit or loan or right to receive payment under an H/I contract
• Abandon or fail to perform a H/I contract, without justification (e.g., nonpayment)
• Materially deviate from plans/specs, without signed/dated change order, with prices
• Be involved in financing, knowing that the H/I contract states higher than actual price
• Advertise or offer to perform a H/I contract if the person does not intend to accept or perform the contract at the advertised price
• Demand or received any payment before the contract is signed
• Receive a deposit of more than 1/3 of the contract price (contracts of more than $1,000)
• For a salesman to fail to account for/remit a payment to a contractor whom s/he represents
• Change liability or identifying information, after the contract is entered into, in a fraudulent or deceptive manner likely to cause confusion or misunderstanding, without advising the owner in writing within 10 days of any such change.
L. § 10 – Unfair Trade Practices & Consumer Protection Law (UTPCPL)
• A violation of any provisions of HICPA shall be deemed a violation of the UTPCPL.
• Nothing in HICPA shall preclude an owner from exercising a right under the UTPCPL.
M. § 11 – Regulations
The Bureau of Consumer Protection may adopt rules and regulations to carry out HICPA.
N. § 12 – Pre-emption of local registration
• Registration – registration under HICPA precludes other fees/licensing/registration
• Building permits – Local govt. can require building permits and reasonable permit fee
• Local govt. responsibilities remain under Pa. Construction Code and Worker’s Comp. Law
• No effect on trade licensing standards (plumber, electrician, etc.)
• No effect on local regs. for liability insurance adopted before 01-06 and in effect on 07-09
O. § 13 – Exemptions - HICPA does not apply to local, state or federal government
P. § 14 – Repeal - All inconsistent acts are repealed.
prepared by:
Donald Marritz, staff attorney
Regional Housing Legal Services
October 31, 2008
Act 132 of 2008; Act of October 17, 2008- SB 100, PN 2484 - effective July 1, 2009
A. § 2 - Definitions – highlights
• Covers repair, replacement, demolition, construction, painting, HVAC, etc.
• Protects only private residences
• Protects only primary residence, if owner has three or more residences
• Protects only owner or those authorized to act on owner’s behalf
• Total cash price must be more than $500
• New home construction not covered
B. § 3 - Contractor Registration with Bureau of Consumer Protection
• Registration required before doing any work or holding out as “contractor”
• Public access to registration information – toll-free number
• No HICPA licenses can be granted to licensees under the Secondary Mortgage Loan Act, 7 P.S. §6601 et seq., or the Mortgage Banker/Brokers and Consumer Equity Protection Act, 63 P.S. §456.101 et seq.
C. § 4 - Registration information
Contractors must provide the following information to the Bureau of Consumer Protection:
• Name(s), address, driver’s license #, federal employer ID #, SSN
• Prior relevant criminal offenses (fraud, etc.)
• Prior bankruptcies – last 10 years
• Civil judgments related to home improvement (H/I) transaction
• Proof of liability insurance – personal injury ($50k), property damage ($5k)
D. § 7(a) - Home Improvement Contracts – not valid/enforceable, unless...
• Written, legible, signed by all parties
• ID info on all contractors, subcontractors
• Contains the entire agreement
• Description of work, materials, specs
• No changes without written change order
• Sales price, down payments
• Contractor agreement to maintain liability insurance
• Toll-free number to Bureau of Consumer Protection
• Notice of right of rescission w/o penalty w/in 3 business days of signing
• Copy of completed contract to owner at time of execution
E. § 7(e) - Voidable clauses – voidable by the owner
• Hold-harmless clause
• Waiver of any local/state/federal safety or building code requirement
• Confession of judgment clause
• Waiver of right to jury trial
• Assignment of wages
• Agreement not to assert any claim or defense
• Grant of attorney fees or costs to contractor
• Release of liability for collections of payments, repossession
• Waiver of rights under HICPA
• Automatic/recurring renewal provision (w/exceptions)
F. § 7(f) - Home improvement retailer contracts (HIRC)
• Covers retailers (undefined) with >$50M net worth who do not perform home improvements
• H/I retailer shall comply with HICPA contract requirements (sec. 7 of SB 100)
• HIRCs not valid or enforceable, unless in writing with all of following:
▫ name, address, phone of retailer
▫ information about person signing for retailer
▫ complies with most provisions in (D), above
G. § 7(g) - Contractor right of equitable recovery
• Nothing in HICPA precludes contractor from recovery of payment
• For work performed
• Based on reasonable value of services requested by the owner, if
• Contractor has complied with (D), above, and
• Court determines it would be “inequitable” to deny such recovery
H. § 7(e) - Arbitration clause
• Nothing in this act shall preclude a court from setting aside an arbitration clause on any basis permitted under Pennsylvania law.”
• If the contract contains an arbitration clause, it shall meet the following requirements or be deemed void upon motion of either party
▫ text of clause must be in capital letters
▫ 12 pt. bold-face type
▫ on separate page from rest of contract
▫ separate line for each party to show assent to be bound
▫ not effective unless both parties sign and date
▫ shall clearly state whether decision is binding or appealable to court
▫ shall state whether facts/documents/decision are confidential
• This provision might well be pre-empted by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. See e.g., Gay v. CreditInform, 511 F.3d 369 (3d Cir. 2007).
I. § 8(a) - Home Improvement Fraud is a crime
A person commits “home improvement fraud” if with the intent to defraud, or, injure anyone, or with the knowledge that he is facilitating fraud or injury by anyone, the actor:
• Makes a false/misleading statement to encourage a person to enter into a H/I contract, or to justify an increase in a previously agreed upon price; or
• Receives an advance payment and fails to perform the contract when specified, and fails to return the payment. Exception: force majeure, labor strike, etc.; or
• Misrepresents or conceals identifying contractor ID information – while soliciting a person to enter into an agreement; or
• Damages property to induce a person to enter into a contract; or
• Falsely represents a government affiliation to induce entry into a contract; or
• Misrepresents an item as a special order; or
• Alters a H/I contract or payment agreement without the consumer’s consent; or
• Publishes a false or deceptive advertisement, in violation of relevant state law about advts.
J. § 8(b), (c), (d) - Prosecution of Home Improvement Fraud
• Grading – M-1 or felony, depending on $, age of victim, priors etc.
• Penalties may include revocation/suspension of H/I contractor certificate
• DAs have authority to investigate and start prosecutions
• State Atty. Genl. can investigate/prosecute multi-county violators
K. § 9 - Prohibited Acts
No person shall:
• Fail to register, as required
• Fail to refund money w/in 10 days of request for refund, if all the following apply
▫ no substantial work has been performed at time of request
▫ more than 45 days have elapsed since starting date in contract
• Accept a certificate of completion or the like, knowing that it is false or work isn’t complete
• Knowingly use a false proof of performance in order to make/accept an assignment, or get/grant credit or loan or right to receive payment under an H/I contract
• Abandon or fail to perform a H/I contract, without justification (e.g., nonpayment)
• Materially deviate from plans/specs, without signed/dated change order, with prices
• Be involved in financing, knowing that the H/I contract states higher than actual price
• Advertise or offer to perform a H/I contract if the person does not intend to accept or perform the contract at the advertised price
• Demand or received any payment before the contract is signed
• Receive a deposit of more than 1/3 of the contract price (contracts of more than $1,000)
• For a salesman to fail to account for/remit a payment to a contractor whom s/he represents
• Change liability or identifying information, after the contract is entered into, in a fraudulent or deceptive manner likely to cause confusion or misunderstanding, without advising the owner in writing within 10 days of any such change.
L. § 10 – Unfair Trade Practices & Consumer Protection Law (UTPCPL)
• A violation of any provisions of HICPA shall be deemed a violation of the UTPCPL.
• Nothing in HICPA shall preclude an owner from exercising a right under the UTPCPL.
M. § 11 – Regulations
The Bureau of Consumer Protection may adopt rules and regulations to carry out HICPA.
N. § 12 – Pre-emption of local registration
• Registration – registration under HICPA precludes other fees/licensing/registration
• Building permits – Local govt. can require building permits and reasonable permit fee
• Local govt. responsibilities remain under Pa. Construction Code and Worker’s Comp. Law
• No effect on trade licensing standards (plumber, electrician, etc.)
• No effect on local regs. for liability insurance adopted before 01-06 and in effect on 07-09
O. § 13 – Exemptions - HICPA does not apply to local, state or federal government
P. § 14 – Repeal - All inconsistent acts are repealed.
prepared by:
Donald Marritz, staff attorney
Regional Housing Legal Services
October 31, 2008
Wednesday, November 05, 2008
Truth in Lending - tolerance for accuracy - special pleading not required
In re Sterten - 3d Circuit - November 4, 2008
http://www.ca3.uscourts.gov/opinarch/072237p.pdf
The Truth in Lending Act, 15 U.S.C. § 1601, et seq., imposes disclosure requirements on creditors, exposing them to such penalties as money damages, attorney’s fees and recission for failure to disclose finance charges accurately. See § 1635(a) & (g); § 1640(a).
However, in 1995, in an effort to prevent creditors from being subject to “extraordinary liability” for small disclosure discrepancies, Congress amended the Act to include a “tolerances for accuracy” provision. Under that provision, a creditor is not liable for undisclosed finance charges if those charges fall within a specified range of error. 15 U.S.C. § 1605(f).
We decide whether a Truth in Lending Act defendant who does not specifically defend on the ground that any inaccuracies in its disclosure fell within the tolerance range waives the protection that provision provides. In procedural parlance, we decide whether a tolerances for accuracy defense is affirmative (requiring that it be pled specifically) or general (thus not requiring that it be pled specifically).
We hold that the defense is general, and that a defendant need not specifically raise the Act’s tolerances provision in order to avoid liability for disclosure errors that fall within its range.
http://www.ca3.uscourts.gov/opinarch/072237p.pdf
The Truth in Lending Act, 15 U.S.C. § 1601, et seq., imposes disclosure requirements on creditors, exposing them to such penalties as money damages, attorney’s fees and recission for failure to disclose finance charges accurately. See § 1635(a) & (g); § 1640(a).
However, in 1995, in an effort to prevent creditors from being subject to “extraordinary liability” for small disclosure discrepancies, Congress amended the Act to include a “tolerances for accuracy” provision. Under that provision, a creditor is not liable for undisclosed finance charges if those charges fall within a specified range of error. 15 U.S.C. § 1605(f).
We decide whether a Truth in Lending Act defendant who does not specifically defend on the ground that any inaccuracies in its disclosure fell within the tolerance range waives the protection that provision provides. In procedural parlance, we decide whether a tolerances for accuracy defense is affirmative (requiring that it be pled specifically) or general (thus not requiring that it be pled specifically).
We hold that the defense is general, and that a defendant need not specifically raise the Act’s tolerances provision in order to avoid liability for disclosure errors that fall within its range.
attorney fees - foreign judgment - English rule
Olympus Corp v. Canady - Superior Court - October 30, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15025_08.pdf
Pennsylvania courts must give full faith and credit under the Uniform Foreign Money Judgment Recognition Act, 42 Pa. C.S. 22001 et seq. to a judgment of the UK High Court of Justice, which included an award of fees against the appellant (plaintiff in the UK court), under the long-standing "English rule," which provides for attorney fees to the prevailing party.
Such an award is remedial and not a penalty, does not violate any public policy of Pennsylvania, and was implicitly acquiesced in by the appellant, who sought recourse in the English courts.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15025_08.pdf
Pennsylvania courts must give full faith and credit under the Uniform Foreign Money Judgment Recognition Act, 42 Pa. C.S. 22001 et seq. to a judgment of the UK High Court of Justice, which included an award of fees against the appellant (plaintiff in the UK court), under the long-standing "English rule," which provides for attorney fees to the prevailing party.
Such an award is remedial and not a penalty, does not violate any public policy of Pennsylvania, and was implicitly acquiesced in by the appellant, who sought recourse in the English courts.
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