foreclosure - HEMAP notice - jurisdiction

Beneficial Consumer Discount Company v. Vukmam - Superior Court - January 30, 2012

http://www.pacourts.us/OpPosting/Superior/out/a38038_11.pdf

The sheriff's sale of a home was properly set aside by the trial court, which held that it lacked subject matter jurisdiction over the matter because the mortgagee failed to comply with the notice requirements of the Homeowner’s Emergency Mortgage Act, 35 P.S. §§ 1680.401c et seq. (“Act 91”), in that it failed to inform her that she had thirty days to have a face-to-face meeting with Appellant.

Subject matter jurisdiction

In the context of discussing subject matter jurisdiction, the Superior Court has held that “the notice requirements pertaining to foreclosure proceedings are jurisdictional, and, where applicable, a failure to comply therewith will deprive a court of jurisdiction to act.” Philadelphia Housing Authority v. Barbour, 592 A.2d 47, 48 (Pa. Super. 1991) (citation omitted), affirmed without opinion, 615 A.2d 339 (Pa. 1992); see also, Marra v. Stocker, 615 A.2d 326 (Pa. 1992) (concluding that, despite the fact that a judgment had been entered in the underlying mortgage foreclosure action, the trial court erred by refusing to set aside a sheriff’s sale where the mortgagee failed to provide to the mortgagor the mortgage foreclosure notice required by 41 P.S. § 403). The trial court thus properly considered whether the pertinent Act 91 notice was deficient.

At the time relevant to this appeal,** Act 91 provided that: Before any mortgagee may accelerate the maturity of any mortgage obligation covered under this article, commence any legal action including mortgage foreclosure to recover under such obligation, or take possession of any security of the mortgage debtor for such mortgage obligation, such mortgagee shall give the mortgagor notice as described in section 403-C. [35 P.S. § 1680.403c], which states that the "notice shall also advise the mortgagor of his delinquency or other default under the mortgage and that such mortgagor has thirty (30) days to have a face-to-face meeting with the mortgagee who sent the notice or a consumer credit counseling agency to
attempt to resolve the delinquency or default by restructuring the loan payment schedule or otherwise." [emphasis added]

In this case, the parties agree that the Act 91 notice told the homeowner that she had thirty days to have a face-to-face meeting with a consumer credit counseling agency but did not tell her that that she could meet face-to-face with the mortgagee, i.e., Appellant. The trial court interpreted the language highlighted above to mean that the Act 91 notice had to tell the homeowner about both options and held that, because the Act 91 notice failed to inform the homeowner of the second option, the notice was deficient and it lacked subject matter jurisdiction to
entertain the matter. The trial court set aside the sheriff’s sale and the judgment and then dismissed Appellant’s complaint without prejudice.

Wells Fargo Bank v. Monroe distinguished - The court distinguished its opinion in Wells Fargo Bank v. Monroe, 966 A.2d 1140 (Pa. Super. 2009), where it held that a homeowner who actually met with a mortgagee had to prove that she was prejudiced by the deficiency in the Act 91 notice. The court said "We find Wells Fargo Bank to be sufficiently distinguishable from the matter sub judice, such that the decision in Wells Fargo Bank has no impact on our decision in this case. As best we can discern, the deficiencies cited by the Monroes, with regard to the Act 91 notice they received, did not implicate Act 91’s explicit requirement that the mortgagee’s Act 91 notice must inform the mortgagor that the mortgagor can meet face-to-face with the mortgagee or a consumer credit counseling agency. Moreover, unlike in Wells Fargo Bank, there is no failure on the part of the parties to this appeal to provide this Court with pertinent legal authority. ,. . . .Act 91 explicitly states that, before a mortgagee can even commence a mortgage foreclosure action, it must give the mortgagor the notice described in Section 1680.403c; Subsection 1680.403c(b)(1) clearly and unambiguously mandates that the notice must inform a mortgagor, inter alia, that the mortgagor can meet face-to-face with the mortgagee."

The court held that the trial court had properly set aside the sheriff's sale.

____________

Note that the HEMAP statutuory provisions may not be operative at the present time, because of the dormancy of the program due to a lack of adequate funding. See, the statement of Brian Hudson, exec. director of PHFA. PHFA published a notice to this effect in the Pennsylvania Bulletin on May 28, 2011, stating that, because the “Agency will have insufficient money available in [HEMAP] . . . to accept new applications for emergency mortgage assistance,” it will only accept applications “up to and including” June 30^th. In fact, some previously approvals are being rescinded, back to around March 2011. As Brian Hudson's June 30th statement says: Lenders and servicers are reminded that . . . Act 91 requires compliance with the Act 91 Notice prior to instituting a foreclosure action in accordance with Section 409-C. . . August 27, 2011, [is the date] after which mortgagees may take legal action to enforce a mortgage without any additional restriction or requirement under Act 91. [emphasis added]

UC - issue-switching

Saleem v. UCBR - Cmwlth. Court - January 27, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/152CD11_1-27-12.pdf

The UCBR erred in finding claimant ineligible for benefits, because the reason given for Claimant's discharge was not the reason cited by the Referee and Board in finding him ineligible for benefits. The reason given for the employer appeal from the initial grant of benefits by the UCSC was that the claimant was an independent contractor. At the hearing and on appeal to the Board, the referee and Board reversed, finding that the claimant, a clinician, had committed willful misconduct by mishandling a situation involving a student at a school for troubled students.

"In order to deny benefits to a discharged employee, the employer’s stated reasons for the discharge must be the actual cause of the claimant’s unemployment." Charles v. UCBR, 764 A.2d 708, 711 n.4 (Pa. Cmwlth. 2000) (emphasis added) (citing Century Apartments, Inc. v. UCBR, 373 A.2d 1191, 1192 (Pa. Cmwlth. 1977)). "Not only must the employer prove the claimant committed some act which constitutes „willful misconduct,‟ the employer must also prove that the act in question was the actual reason for the claimant's discharge." Panaro v. UCBR, 413 A.2d 772, 774 (Pa. Cmwlth. 1980) (emphasis added). The Board "may not in its findings rely on reasons for discharge that were not considered relevant by the employer." Tundel v. UCBR, 404 A.2d 434, 435 (Pa. Cmwlth. 1979). The Board contends that, because Employer could have discharged Claimant for violating Employer‟s policies, it, essentially, could disregard the reason given by Employer for discharging Claimant and find Claimant ineligible on a different basis. However, this is contrary to Charles, Panaro, Tundel, and Century Apartments.

After-discovered evidence cases are not on point - In the few cases where the court has permitted an employer to assert reasons other than those given for an employee‟s separation to contest eligibility for benefits, those reasons were based, inter alia, on after-discovered evidence of criminal conduct that, in and of itself, would have supported the discharge. In Preservation Pennsylvania v. UCBR, 673 A.2d 1044 (Pa. Cmwlth. 1996), the Court stated that there is a narrow exception to the rule "that the burden is on an employer to prove an employee‟s willful misconduct and that it was the actual reason for the employee‟s termination from employment." Id. at 1047-48. The court held in Preservation Pennsylvania, that the claimant, who was otherwise eligible for benefits based on the stated reason for her separation from employment, was ineligible because she embezzled funds from her employer, which was not discovered until after she had been separated from her employment due to the employer‟s budgetary problems. Id. at 1048. It stated that "the Board is not deprived of authority to permit evidence of the after-discovered criminal conduct [and t]he Board may thereafter reconsider the employee‟s entitlement to benefits in light of the after-discovered criminal conduct and terminate benefits if the employer sustains its burden of proof." Id. Similarly, in PrimePay, LLC v. UCBR, 962 A.2d 684, 688 (Pa. Cmwlth. 2008), it held that an employer can meet its burden to disqualify an employee from receiving benefits if it proves, by after-discovered evidence, that the employee‟s willful misconduct was concealed and, had the employer been aware of the conduct, the employer would have discharged the employee.

Here, unlike Preservation Pennsylvania and PrimePay, LLC, there was no after-discovered evidence of willful misconduct and there was no concealment of the alleged willful misconduct, i.e., how Claimant handled the incident with Student. The Board‟s finding of willful misconduct, through Claimant‟s violation of Employer‟s procedures, is not based on information discovered after Claimant‟s discharge. Rather, this conduct was contemporaneous to his filing of criminal charges against Student, which was the reason Employer fired Claimant.

PFA - family/household member - relationship by affinity - child of long-time paramour

Commonwealth v. Walsh - Superior Court - January 19, 2012

http://www.pacourts.us/OpPosting/Superior/out/a33042_11.pdf

Conviction for contempt of PFA order upheld for violating terms of order prohibiting threats. Appellant threatened the protected party -- S.S., the teen-age daughter of his paramour of 13 years -- when he told the daughter's friend that if he saw SS, "she'd be fucked." The friend relayed this message to SS, who went to the police, who filed a contempt petition.

Challenge to SS's status as a protected party because of lack of a family relationship was rejected. SS had lived with appellant for about 13 years, during which time he treated her as a stepdaughter. She left appellant's home because he had sexually abused her.

The court determined that Appellant and SS were related by affinity. The term “affinity” is not defined in the PFA Act. See 23 Pa.C.S. § 6102. The dictionary defines “affinity” as, inter alia, “related by marriage or by ties other than those of blood.” Webster’s American Dictionary, 14 (2nd College ed. 2000) (emphasis added). Instantly, S.S. has ties other than those of blood to Appellant as S.S.’s two half-siblings are the natural children of Appellant and S.S.’s mother. Given the remedial purpose of the PFA Act it is incumbent upon us to interpret “affinity” so as to include this relationship.

Challenge to sufficiency of the evidence also rejected, since the order prohibited contact with SS, either directly or through third parties.

Appellant's subpoena of phone records was properly rejected, where it was not served until the day before the contempt hearing.

admin. law - due process

Gombach v. Department of State, 692 A.2d 1127, 1129-30 (Pa. Cmwlth. 1997)

The right to due process is equally applicable to administrative agencies as it is to judicial proceedings. The fundamental requirements of due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Procedural due process requires that the individual be given adequate information with which to prepare a defense. For notice to be adequate, it must at the very least contain a sufficient listing and explanation of any charges against the individual.

See also First National Bank of Pike County v. Department of Banking, 300 A.2d 823, 825 (Pa. Cmwlth. 1973) (The essential elements of due process in administrative proceedings are "notice and [the] opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal" with jurisdiction over the matter.)

UC - vol. quit - late payment of wages - single instance

Smith v. UCBR - Cmwlth Court - January 9, 2012 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/835CD11_1-9-12.pdf

Claimant did not have good cause to quit work because of late payment of wages where

- only one instance of late payment

- Claimant did not complaint to ER before quitting

- Claimant did not tell ER before she quit.

UC - refusal of drug-testing

Keeler Transport v. UCBR - January 9, 2012 - unreported memorandum decision.

http://www.pacourts.us/OpPosting/Cwealth/out/820CD11_1-9-12.pdf

Claimant held ineligible for UC because of failure to immediately report for drug testing when instructed to do so.

In UGI Utilities, Inc. v. Unemployment Compensation Board of Review, 851 A.2d 240 (Pa. Cmwlth. 2004), this Court held that Section 402(e.1) of the Law governs discharges related to drug tests and not the general willful misconduct discharge governed by Section 402(e) of the Law. UGI Utilities, 851 A.2d at 245. See also Architectural Testing, Inc. v. Unemployment Compensation Board of Review, 940 A.2d 1277, 1281 (Pa. Cmwlth. 2008) (noting both the failure of a drug test, and the refusal to take a drug test, are now analyzed under Section 402(e.1)). Accordingly, Section 402(e.1) requires an employer to (1) demonstrate that it adopted a substance abuse policy; and (2) that the employee violated that policy. UGI Utilities, 851 A.2d at 252. Further, the policy permitting drug and alcohol testing need not be detailed. Architectural Testing, 940 A.2d at 1282. Once the employer establishes the policy, the burden shifts to the employee to show that the policy was either trumped by a statute or collective bargaining agreement. UGI Utilities, 851 A.2d at 252.

Here, Employer’s substance abuse policy states that [r]efusal to submit to a requested alcohol or drug test is grounds for immediate discharge. Refusal includes refusing to report immediately to the testing location upon request …. The Federal regulation, by which Employer is bound, also states that drivers must report immediately for testing. 49 C.F.R. §382.305(l). The Federal regulation provides that an employee is considered to have refused a drug test when he "fail[s] to appear for any test . . . within a reasonable time, as determined by the Employer, . . . after being directed to do so by the employer." 49 C.F.R. §40.191(a)(1)

Claimant did not comply with the requirement to proceed immediately to the testing facility, i.e., first thing Monday morning. Telling Employer that he would go for the drug screen after he returned from Massachusetts constitutes a "refusal" as that term is defined in Employer’s substance abuse policy and in FMCSA regulations

abuse - expungement - single hearsay statement by alleged victim

In re E.A. - Cmwlth. Court - January 9, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/650CD11_1-9-12.pdf

Corroboration needed for hearsay statement of very young child. - CYS determintion of abuse based on single out-of-state DVD about which defendant had no notice does not support finding of abuse. The Supreme Court‟s guidelines in A.Y. appear to allow that, in special situations, uncorroborated hearsay testimony of a child can constitute substantial evidence of child abuse. We have been unable, however, to find a single instance of an indicated report of abuse being based upon a single, out-of-court statement of a child of any age, let alone a child of four years.

Daughter‟s statements of sexual abuse involve Father, Father's wife, a cow and dogs. Her statements ramble, describing incidents that took place under a bed and in her bed, years ago or several days ago. Daughter's statement is simply not competent to stand as the sole support of a finding of sexual abuse.

Daughter's statement was not corroborated by the testimony of CWS workers, whose only experience with Daughter was attendance at the interview is not corroboration. Their testimony about what Daughter said at her interview is double hearsay that was redundant, not corroborative, of the out-of-state DVD. Hearsay can not constitute independent corroborative evidence of hearsay. A.P. v. Department of Public Welfare, 696 A.2d 912, 916 (Pa. Cmwlth. 1997). In short, there was no corroboration to support the Bureau‟s finding that Father sexually assaulted Daughter.

As noted, there is no prior case where a court has allowed a child‟s uncorroborated hearsay statement to serve as the sole evidence to support a factual finding of child abuse. Indeed, county agencies routinely offer corroborating evidence. In C.E. v. Department of Public Welfare, 917 A.2d 348, 351 (Pa. Cmwlth 2007), for example, the county agency offered testimony from the emergency room physician who treated the child as corroborating evidence. See also A.O. v. Department of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003) (testimony of physician with expertise in sexually abused children offered to corroborate hearsay statements of child victim); Mortimore v. Department of Public Welfare, 697 A.2d 1031 (Pa. Cmwlth 1997) (testimony of physician offered to corroborate hearsay statement of child victim of sexual abuse); D.P., 733 A.2d 661 (testimony of child psychiatrist and medical doctor offered to corroborate hearing statement of child victim, although the child‟s statement was held inadmissible). Here, the CYW offered no comparable evidence to corroborate Daughter‟s out-of-court statement that Father, as well as his wife and family dogs, had subjected her to various acts of defilement. The evidence CYS claims to be corroboration was only more hearsay.

Where the hearsay statement is that of a very young child, corroboration is needed to find that a perpetrator engaged in sexual intercourse, cunnilingus and digital penetration of the child, as was reported here by CYS. A medical examination to confirm vaginal penetration and an investigation of Daughter‟s living situation in New York, to consider what other persons had an opportunity to abuse Daughter in the past, should have been undertaken. This is not the exceptional case where uncorroborated hearsay alone may be sufficient to justify a finding of abuse.

The DVD was admitted without prior determination of indicia of reliability - In his second issue, Father contends that the hearing officer erred, procedurally, in ruling that the New York DVD was admissible in lieu of Daughter‟s testimony. We agree. The ruling was made before the hearing officer reviewed the New York DVD. A stenographer did not transcribe the videotaped interview, so the hearing officer did not have a written transcript available at the in camera hearing. Instead, the hearing officer relied upon the telephonic statements of Hall, the interviewer, for a recital of what Daughter said in the interview. CYS opinion that the videotaped interview of Daughter satisfied the requirements of 42 Pa. C.S. §5986(a)(1) was beside the point. It is the job of the factfinder to ensure "that the time, content and circumstances of the statement provide sufficient indicia of reliability …." 42 Pa. C.S. §5986(a)(1) (emphasis added). This requires a review of the hearsay statement to determine its admissibility.

Here, the factfinder relied upon CYS testimony in admitting the New York DVD in lieu of Daughter‟s testimony. This was error. CYS testimony was appropriate for establishing the time and circumstances of Daughter‟s statement. However, only by viewing the New York DVD could the hearing officer determine whether the content of Daughter‟s statement demonstrated sufficient indicia of reliability to warrant its admission. By admitting the New York DVD on the basis of a CYS statement of what it contained, the hearing officer repeated the mistake identified in A.Y.: [T]he Agency was able to rely on its own employees‟ recitation of what the three-year old child stated had occurred … [This] procedure … prevented the hearing officer from having any opportunity to judge the evidence except through the prism provided by the Agency. A.Y. at 125, 641 A.2d at 1152 (emphasis added). Likewise here, the hearing officer decided the admissibility of the New York DVD "through the prism provided by" Wyoming County.

Alleged abuser not required to provide contradictory evidence - The hearing officer criticized Father for not providing "significant contradictory evidence." This was not Father‟s burden. We do not require litigants to prove a negative because it cannot be done. It was Wyoming County‟s duty to investigate the serious allegations made by Mother, and it did not do so. It relied entirely upon New York personnel, for whose work Wyoming County could not vouch. Wyoming County did not investigate Father‟s background, character, reputation or family or offer any evidence such as a physical exam or evaluation of a physician or psychologist to corroborate the New York DVD hearsay statement.

Accordingly, we conclude that substantial evidence does not support the factual finding that Father committed a sexual assault and, therefore, reverse

UC - vol. quit - firm offer of new job - temp. v. permanent

Solar Innovations v. UCBR - January 5, 2012 - Cmwlth. Court (2-1)

http://www.pacourts.us/OpPosting/Cwealth/out/933CD11_1-5-12.pdf

Although an employee who resigns from employment to accept a "firm offer" of employment elsewhere may be eligible for UC benefits when the second job proves to be unavailable, Empire Intimates v. UCBR, 655 A.2d 662 (Pa. Cmwlth. 1995), this is not what occurred here. The second job did not become unavailable to Claimant; it simply ran the course expected of a temporary contract job with a finite period of employment.

The issue presented here appears to be one of first impression5—whether one can quit a stable, full-time, non-temporary job and accept a temporary job, yet remain eligible for UC benefits when the temporary job foreseeably ends, as it did in this case after approximately one month.

Here, the Board found that Claimant‟s employment with Staffing Agency was “temporary, between one and six months.” The Board additionally found that “[t]his assignment could be followed by another.”

"It is well-established that . . . „the receipt and acceptance of a firm offer of employment does constitute termination for cause of a necessitous and compelling nature.‟" Township of North Huntingdon, 450 A.2d at 769 (quoting Steinberg v. UCBR, 383 A.2d 1284, 1286 (Pa. Cmwlth. 1978)). "The offer of employment, however, must be definite," Id. at 769 (citing Baron v. UCBR, 384 A.2d 271, 272 (Pa. Cmwlth. 1978)), and "the claimant must act prudently with regard to his employer." Id. (citing UCBR v. Pennsylvania Power and Light Co., 351 A.2d 698, 699 (Pa. Cmwlth. 1976)). "[T]he mere possibility of obtaining another job is insufficient to establish that employment was terminated for good cause." Id. In addition, although "the claimant may have personal, economic, or career reasons for making h[is] decision to leave the employer . . . that does not constitute a necessitous and compelling cause for voluntarily quitting." Empire Intimates, 655 A.2d at 665.

The Board cites Brennan v. UCBR, 504 A.2d 432, 433 (Pa. Cmwlth. 1986) and Antonoff v. UCBR, 420 A.2d 800, 801 (Pa. Cmwlth. 1980), are distinguishable; neither involved a claimant quitting non-temporary employment to take a new position known to be temporary at the time of quitting.

Here, as in Empire Intimates, the ultimate unavailability of work for Claimant was the result of Claimant‟s personal choice. Instead of remaining at his full-time, non-temporary position with Employer, Claimant chose to accept a temporary job with Staffing Agency, which ended within the period of time the position was expected to end, sometime between one and six months. The offer and acceptance of a known temporary position is not akin to situations where a claimant is offered non-temporary, but part-time, work that subsequently becomes unexpectedly unavailable; rather, it is more like quitting a full-time, non-temporary position in favor of a seasonal position of limited duration. The claimant in the former situation is eligible for benefits, Brennan, 504 A.2d at 433; the claimant in the latter situation is not. Luongo v. UCBR, 190 A.2d 344, 346 (Pa. Super. 1963) (holding that quitting a full-time position to work a seasonal position.

Claimant accepted the temporary position with Staffing Agency believing that, after the first position ended, there was a possibility of future assignments through Staffing Agency. The mere possibility that other assignments could become available “is insufficient to constitute good cause for voluntarily terminating one‟s employment.” Pennsylvania Power and Light, 351 A.2d at 699. To establish eligibility for UC benefits pursuant to Section 402(b) of the Law, the claimant must show that he acted with ordinary common sense and made a reasonable effort to preserve his employment. Brunswick Hotel & Conference Center, 906 A.2d at 660.

We conclude that Claimant‟s actions here are imprudent where he quit his regular, non-temporary job in exchange for a temporary job of fixed duration. Thus, as we did in Pennsylvania Power and Light, we conclude that Claimant‟s actions do not “demonstrat[e] that [he acted] with ordinary common sense and prudence,” Id. at 699, or that he made a reasonable effort to preserve his employment.

Dissent - Just because a job is temporary does not mean that a claimant is not entitled to unemployment compensation. According to the Law, a claimant is eligible for unemployment compensation benefits provided he "earned no less than $50 for at least 16 weeks during the five calendar quarters preceding the first day of the claimant’s unemployment." Earnest v. UCBR, 30 A.3d 1249, 1254 (Pa. Cmwlth. 2011) (citing Section 404(c) of the Law, 43 P.S. §804(c)). This financial eligibility provision does not distinguish between permanent and temporary employment. I do not believe that an employee becomes ineligible for unemployment compensation simply because he leaves full-time employment for other work as employees are free to change jobs in order to, inter alia, reduce the total number of hours worked or change shifts. See Baldwin-Whitehall School District v. UCBR, 848 A.2d 1021 (Pa. Cmwlth. 2004). The permanent or temporary nature of the employment does not change the fact that Claimant was laid off through no fault of his own. Given the fact that employment is typically "at will," Claimant’s situation is no different than if he had accepted a "permanent" position with another employer but was laid off after only one month due to lack of work.

UC - employee v. indpt. contractor

Tobey-Karg Sales Agency v. Dept. of Labor and Industry - Cmwlth. Court - December 30, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/283CD10_12-30-11.pdf

Company petitioned for reassessment for past unpaid Unemployment Compensation (UC) contributions, interest, and penalties on wages not previously reported to the Department.

Sales reps held to be independent contractors rather than employees under Section 4(l)(2)(B) of the Unemployment Compensation Law (Law),1 43 P.S. § 753(l)(2)(B),