UC - late appeal - two contrary determinations in the same envelope

Martilla v. UCBR - Cmwlth. Court - May 31, 2012 - unpublished memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/2185CD11_5-31-12.pdf

Claimant's late appeal could not be considered nunc pro tunc, since there was no breakdown in the administrative system under the fact of the case.

Claimant filed an application for benefits. The UC Service Center issued two Notices of Determination, both of which were in the same envelope: the first indicated that Claimant was eligible for benefits under Section 402(e) because he was not discharged for willful misconduct, but the second indicated that he was ineligible under Section 402(h) due to engaging in self-employment.

Claimant, however, only saw the determination finding him eligible under 402(e) and did not take out the other documents in the envelope until several weeks later, when he noticed that he was not getting UC benefits, at which time he filed an appeal.

The court said

Claimant does not demonstrate how receiving two notices in the same envelope – one which found him eligible for benefits and one which found him ineligible – amounts to an administrative breakdown. Because he admits that he received the determination finding him ineligible for benefits under Section 402(h) of the Law, Claimant was not misled by the Service Center, but only by his own failure to read all documents sent to him. Additionally, as the Referee pointed out, while Claimant received confirmation notices after he submitted his bi-weekly claims, these notices were nothing more than a confirmation that the claim had been received, not a notification that Claimant would be paid. Claimant’s subjective belief, coupled with his failure to monitor whether he was actually receiving the money, does not amount to an administrative breakdown.

Claimant also argues that he should be allowed to file his claim late because he did not act negligently in failing to timely file his appeal. However, the Board properly determined that Claimant was negligent in failing to read all documents in the envelope from the Service Center and in failing to monitor his bank account for several months. Claimant’s appeal was, therefore, properly dismissed as untimely.

_______________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

non-conviction arrest record - expungement - detailed disposition record - right to hearing

Commonwealth v. Wallace - Superior Court - May 25, 2012


http://www.pacourts.us/OpPosting/Superior/out/s39010_11.pdf

There is a long-standing right in this Commonwealth to petition for expungement of a criminal arrest record, a right that is adjunct of due process. Carlacci v. Mazaleski, [798 A.2d 186, 188 (Pa. 2002). . . . Judicial analysis and evaluation of a petition to expunge depend upon the manner of disposition of the charges against the petitioner.

When an individual has been convicted of the offenses charged, then expungement of criminal history records may be granted only under very limited circumstances that are set forth by statute. 18 Pa.C.S. § 9122; Hunt v. Pennsylvania State Police, 604 Pa. 156, 983 A.2d 627, 633 (2009).

When a petitioner has been tried and acquitted of the offenses charged, we have held that the petitioner is “automatically entitled to the expungement of his arrest record.” Commonwealth v. D.M., 548 Pa. 131, 695 A.2d 770, 772-73 (1997).

When a prosecution has been terminated without conviction or acquittal, for reasons such as nolle prosse of the charges or the defendant’s successful completion of an accelerated rehabilitative disposition program (“ARD”), then the trial court must “balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records.” Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa.1981)

To aid courts in applying the balancing test for expungement, the Wexler Court adopted the following nonexhaustive list of factors that the court should consider: These factors include [1] the strength of the Commonwealth’s case against the petitioner, [2] the reasons the Commonwealth gives for wishing to retain the records, [3] the petitioner’s age, criminal record, and employment history, [4] the length of time that has elapsed between the arrest and the petition to expunge, and [5] the specific adverse consequences the petitioner may endure should expunction be denied. Wexler, supra at 879 (citation omitted).

In applying the balancing test and considering the above factors, the court must analyze the particular, specific facts of the case before it. Id. at 880-81. The mere assertion by the Commonwealth of a general interest in maintaining accurate records of those accused of a crime does not outweigh an individual’s specific, substantial interest in clearing his or her record. Id. at 881-82. Commonwealth v. Moto, ___ Pa. ___, ___, 23 A.3d 989, 993-994 (2011).

Here, the official record in this matter consists of six incomplete, disorganized parts and appears to cover 19 arrests, 37 criminal action numbers, and approximately 228 charges as of May 10, 2010. As of that date, we estimate that the charges had terminated in four guilty pleas, four convictions, sixteen acquittals, five sustained demurrers, fourteen withdrawals, fifty-three dismissals, forty-four nolle prosequi, three transfers to family court, thirty transfers to juvenile division, and fifty-five held for court. The record does not indicate whether the nolle prossed and

withdrawn charges were based upon a lack of evidentiary support or whether the charges were dropped in exchange for a plea. Moreover, the record does not indicate why some charges were dismissed. Yet, the Commonwealth argues generally - and the trial court agrees - that none of the records should be expunged in light of Appellant’s extensive criminal record and the possibility that he might reoffend.

Substantively, and depending on the circumstances surrounding their termination, some of Appellant’s non-conviction arrest records may be eligible for expungement under the laws of Pennsylvania. However, we cannot make that determination based on the record at hand. Therefore, we remand to the trial court for “a clarification of the record as much as a clarification of the reasons for the trial court decision.” Roland, 871 A.2d at 222. Toward that purpose, “we cannot suggest strongly enough that all parties provide a comprehensive list of each criminal action number in question with the disposition of each charge contained therein.” Id. The trial court should then apply the Wexler factors, balancing Appellant’s right to be free from the harm attendant to maintenance of the arrest records against the Commonwealth’s interest in preserving such records, to determine in each particular case whether justice requires expungement. Waughtel, 999 A.2d at 625; A.M.R., 887 A.2d at 1268.

Individuals have the right, as an adjunct to due process, to seek expungement of their criminal records which can be effectuated through a hearing.[…] Punishment of the innocent is the clearest denial of life, liberty and property without due process of law. To remedy such a situation, an individual must be afforded a hearing to present his claim that he is entitled to an expungement - that is, because an innocent individual has a right to be free from unwarranted punishment, a court has the authority to remedy the denial of that right by ordering expungement of the arrest record. Maxwell, 737 A.2d at 1245 (citation omitted); accord Roland, 871 A.2d at 221

Having determined that the record at hand requires supplementation and clarification with regard to the circumstances surrounding Appellant’s non-conviction arrest records, we conclude that a hearing for this purpose is necessary. Accordingly, while making no determination as to whether expungement is warranted, we vacate the orders denying the motions for expungement and remand for a hearing on which non-conviction arrests records, if any, are eligible for application of the Wexler factors, and, based on application of the Wexler factors, which non-conviction arrests records, if any, should be expunged.

UC - voluntary quit - follow-the-spouse - newly-married couple

Pa. Gaming Control Board v. UCBR - Cmwlth. Court - May 23, 2012 (2-1 decision)


http://www.pacourts.us/OpPosting/Cwealth/out/927CD11_5-23-12.pdf

Facts - Claimant was last employed in August 2010, as a full-time administrative assistant for the Pennsylvania Gaming Control Board. She began dating her future spouse in May of 2008. In August of 2008, her future spouse enlisted in the United States Coast Guard, which sent him to Louisiana, where he was stationed and purchased a residence. In May, 2010, the claimant was married to her spouse. In August 2010, the claimant voluntarily resigned her employment to relocate to Louisiana to be with her spouse. The claimant and her spouse had an insurmountable commuting distance. The claimant and her spouse could not afford to maintain two residences.

The court rejected the Employer's argument that the follow-the-spouse rule does not apply at all, because Claimant’s husband relocated to Louisiana before the couple married. Employer’s argument ignored the fact that under Schechter v. UCBR, 491 A.2d 938 (Pa. Cmwlth. 1985), the "follow-the-spouse" doctrine is applicable to a situation where a claimant begins a marriage living apart from a spouse and later moves to be with the spouse, provided that necessitous and compelling reasons otherwise exist for the move. In such an instance, whether a spouse relocated prior to the marriage is irrelevant to the analysis. Here, it is similarly irrelevant that Claimant’s spouse relocated at a time prior to the couple’s marriage.

The Court also held that claimant showed a nececessitous and compelling reason to locate, under the Schlecter analysis. She showed an economic hardship, an insurmountable commuting distance, and that the move was for reasons beyond mere personal choice. Thus, although Claimant was not required to establish that her spouse’s relocation was beyond her control, she, nevertheless, still was required to and did establish that her own relocation to Louisiana following her marriage was for necessitous and compelling reasons and not merely due to personal preference.

The Board specifically found that an "insurmountable commuting distance" existed, the couple "could not afford to maintain two residences" (as Claimant was not maintaining a residence while she lived in Pennsylvania with her parents), and that Claimant’s spouse "was relocated by the United States Coast Guard to Louisiana where he was currently stationed and purchased a residence." Although Claimant’s testimony reveals that her decision to relocate to where her husband was currently stationed involved some personal preference, Claimant’s testimony revealed that the other factors identified above (i.e., economic hardship and insurmountable commuting distance) also played a role in her decision. Based upon those factors, it is apparent that Claimant acted reasonably and with good faith in making her decision to relocate. The Board, therefore, did not err in concluding that cause of a necessitous and compelling nature existed for Claimant to voluntarily terminate her employment.

consumer - UDAP - deceptive or misleading conduct v. fraud - pleading

Bennett v. A.P. Masterpiece Homes - Superior Court - March 6, 2012


http://www.pacourts.us/OpPosting/Superior/out/a03006_12.pdf

Held: Plaintiff in a consumer protection case alleging misleading or deceptive conduct need not plead or prove elements of common law fraud, reversing a line of contrary Superior Court decisions.

The UTPCPL provides a private right of action for anyone who “suffers any ascertainable loss of money or property” as a result of an unlawful method, act or practice. 73 P.S. § 201-9.2(a).

Section 201-2(4) lists twenty enumerated practices which constitute actionable “unfair methods of competition” or “unfair or deceptive acts or practices.” 73 P.S. § 201-2(4)(i)-(xx). The UTPCPL also contains a catchall provision at 73 P.S. § 201-2(4)(xxi).

The pre-1996 catchall provision prohibited “fraudulent conduct” that created a likelihood of confusion or misunderstanding. 73 P.S. § 201-2(4)(xvii). In 1996, the General Assembly amended the UTPCPL and revised Section 201-2(4)(xxi) to add “deceptive conduct” as a prohibited practice. Act of Dec. 4, 1996, P.L. 906, No. 146, § 1 (effective Feb. 2, 1997). The current catchall provision proscribes “fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi) (emphasis added).

Under this "catchall" provision, a plaintiff does not need to allege or prove common law fraud. The court rejected its own decisions which continued to apply pre-amendment law that required pleading and proving the element of fraud, such as. Ross v. Foremost Ins. Co., 998 A.2d 648 (Pa.Super. 2010) (stating catchall section requires proof of common law fraud); Colaizzi v. Beck, 895 A.2d 36 (Pa.Super. 2006) (stating same); Booze v. Allstate Ins. Co., 750 A.2d 877 (Pa.Super. 2000), appeal denied, 564 Pa. 722, 766 A.2d 1242 (2000) (stating same); Skurnowicz v. Lucci, 798 A.2d 788 (Pa.Super. 2002) . Despite the addition of language regarding deceptive conduct, these post-amendment cases do not discuss the 1996 amendment in any detail, or consider what effect it might have on the catchall provision.

Commonwealth Court decisions - The Superior Court adopted the holding in the contrary line of case from Commonwealth Court. See, e.g., Commonwealth v. Percudani, 825 A.2d 743, 746-47 (Pa.Cmwlth. 2003) (holding 1996 Amendment to Section 201-2(4)(xxi) provides liability for deceptive conduct). These cases view the 1996 addition of “deceptive conduct” as substantively altering the catchall provision and allowing for liability based on the less restrictive standard of “deceptive conduct.” Com. ex rel. Corbett v. Manson, 903 A.2d 69, 74 (Pa.Cmwlth. 2006) (permitting catchall liability for deceptive conduct and rejecting Superior Court’s continued interpretation of Section 201-2(4)(xxi) as requiring proof of common law fraud). See also Com. v. TAP Pharmaceutical Products, Inc., ___ A.3d ___, 2011 WL 4056170 (Pa.Cmwlth. 2011) (stating Commonwealth Court has adopted “deceptive” standard under post-amendment catchall section of UTPCPL because language of 1996 amendment signaled approval of less restrictive pleading requirements); Pennsylvania Dept. of Banking v. NCAS of Delaware, LLC, 995 A.2d 422, 433 n.28 (Pa.Cmwlth. 2010) (applying “deceptive” standard for catchall provision and outlining split in interpretations of statute by Commonwealth and Superior Courts). In rejecting this Court’s postamendment interpretation of the catchall provision, the Commonwealth Court found Skurnowicz inapplicable to post-amendment cases because Skurnowicz did not acknowledge the 1996 amendment and relied on preamendment case law to hold the catchall section required proof of common law fraud.

Federal court decisions - Most Pennsylvania federal courts similarly concluded the 1996 amendment lessened the degree of proof required under the UTPCPL catchall provision. See Schnell v. Bank of New York Mellon, ___ F.Supp.2d ___, 2011 WL 5865966 (E.D.Pa. Nov. 22, 2011) (stating deceptive conduct is sufficient to satisfy catchall provision); Vassalotti v. Wells Fargo Bank, N.A., 732 F.Supp.2d 503, 510 n.7 (E.D.Pa. 2010) ; Wilson v. Parisi, 549 F.Supp.2d 637 (M.D.Pa. 2008); Chiles v. Ameriquest Mortg. Co., 551 F.Supp.2d 393, 398-99 (E.D.Pa. 2008). Like the Commonwealth Court, the federal courts examining this issue were persuaded by the revised statutory language of the catchall provision and our Supreme Court’s directive to read the UTPCPL broadly. Seldon v. Home Loan Services, Inc., 647 F.Supp.2d 451, 469 (E.D.Pa. 2009). Accord Genter v. Allstate Property and Cas. Ins. Co., 2011 WL 2533075 (W.D.Pa. June 24, 2011); Haines v. State Auto Property and Cas. Ins. Co., 2009 WL 1767534 (E.D.Pa. June 22, 2009); Flores v. Shapiro & Kreisman, 246 F.Supp.2d 427 (E.D.Pa. 2002); In re Patterson, 263 B.R. 82 (Bankr.E.D.Pa. 2001). Federal court generally declined to follow the Superior Court’s post-Amendment precedent because the Superior Court cases relied on pre-amendment interpretations of the catchall section without acknowledging the 1996 amendment. Seldon, supra at 469; Cohen v. Chicago Title Ins. Co., 242 F.R.D. 295 (E.D.Pa. 2007) (rejecting post-amendment cases from Superior Court because they rely on authority that interpreted preamendment catchall provision).

tax sale - "proof of mailing"

Horton v. Washington Co. Tax Claim Bureau - Cmwlth. Court - May 21, 2012


http://www.pacourts.us/OpPosting/Cwealth/out/75CD11_5-21-12.pdf

Section 602 of the Real Estate Tax Sale Law, 72 P.S. §5860.602(e)(2), requires that notice of a scheduled tax sale be provided by three separate methods: publication at least thirty days prior to sale; notification by certified mail at least thirty days prior to sale; and posting on the property at least ten days prior to sale. 72 P.S. §5860.602(a), (e).

With respect to the notice by certified mail, the statute also states that if a return receipt is not received from the property owner, "then, at least ten (10) days before the date of the sale, similar notice of the sale shall be given to each owner who failed to acknowledge the first notice by United States first class mail, proof of mailing, at his last known post office address…." Section 602(e)(2) of the Law, 72 P.S. §5850.602(e)(2) (emphasis added).

Consistent with the decision in In Re: York County Tax Claim Bureau Donalynn Properties, Inc. v. York County Tax Claim Bureau, 3 A.3d 765 (Pa. Cmwlth. 2010), the court held that the "proof of mailing" requirement in section 602(e)(2) of the Law can only be satisfied by the use of a USPS certificate of mailing, also known as USPS Form 3817.

The holding in York County is based on

- the statutory language in the context of the Law’s other notice provisions. The Court observed that all other types of mailing specified in the statute are USPS services and that the phrase "proof of mailing" immediately follows "United States first class mail," which is exclusively USPS terminology. Based on the plain language alone, the Court concluded that the legislature intended "proof of mailing" to mean a USPS form and determined that the only official record providing that proof was a USPS certificate of mailing.

- a need for statewide uniformity with respect to the ten-day notice, which is the final notice sent to a property owner before a tax upset sale.

- the minimal burden that requiring a USPS certificate of mailing imposes on county tax bureaus.

Right to Counsel - Statute of 11 Henry VII - article

A new article explores the possibility of civil right to counsel arguments based on the incorporation of English common law that provided for a right to counsel. It's Taking the English Right to Counsel Seriously in American 'Civil Gideon' Litigation, 45 U. Mich. J.L. Reform 635 (2012), available at http://ssrn.com/abstract=1753407

There is a lot in the article about the Statute of 11 Henry VII, c. 12, which also includes a right to proceed in forma pauperis. The Statute says

[E]very poor person or persons which have & hereafter shall have cause of action or actions against any person or persons within the realm shall have, by the discretion of the Chancellor of this realm, for the time being writ or writs original and writs of subpoena according to the nature of their causes, therefore nothing paying to your Highness for the seals of the same, . . . [a]nd that the said Chancellor for the same time being shall assign . . . Counsel learned by their discretions which shall give their Counsels nothing taking for the same, and in like wise the same Justices shall appoint attorney and attorneys for the same poor person or persons and all other officers requisite and necessary to be had for the speed of the said suits to be had and made which shall do their duties without any rewards for their Counsels, help, and business in the same . . .

The Statute of 11 Henry VII is incorporated into the law of Pennsylvania by virtue of Pa. C.S. § 1503(a). The Statute is cited in a number of Pennsylvania cases, including Thompson v. Garden Court, Inc., 419 A.2d 1238 (Pa. Super. 1980), where the court said

“Indulgence toward poor persons in bringing their actions has existed from an early period . . . .” 15 Stand.Pa.Prac.-Costs s 125 at 681 (1965). Under the Statute of 11 Henry VII, c. 12 (1494),

(E)very poor person or persons, which have, or hereafter shall have cause of action or actions against any person or persons within this realm, have, by the discretion of the Chancellor of this realm for the time being, writ or writs original, and writs of subpoena, according to the nature of their causes, therefore nothing paying to your Highness for the seals of the same, nor to any person for the writing of the same writ or writs to be hereafter sued; . . .“

This statute is part of the common law of Pennsylvania, Report of the Judges, 3 Binn. 593, 617 (1808); 1 Pa.C.S.A. s 1503 (1964-78 Pamphlet), and provides relief from filing fees and court costs to in-digent persons in the commencement and prosecution of civil actions. Mitek v. Ste-Mel Signs, Inc., 222 Pa.Super. 395, 294 A.2d 813 (1973); 3 Goodrich-Amram 2d s 1137:1 at 427 n. 8.

See also, Madden v. City of York, 59 Pa. D. & C. 2d 367, 369-70 (Ct. Com. Pl. 1972) and Mitek v. Ste-Mel Signs, 294 A.2d 813 (Pa. Super. 1972) (cited in Davila v. Soto, 378 A.2d 443 (Pa. Super 1977); Zerr v. Scott, 39 Pa. C & C 3d 459 (CP Berks 1985); In re Community Legal Services, 43 Pa. D & C 2d 51 (CP Phila. 1967).

Megan's Law - registration - homelessness

Commonwealth v. Demmitt - Pa. Super. May 2, 2012

 

http://www.pacourts.us/OpPosting/Superior/out/E02007_10.pdf

 

The Commonwealth of Pennsylvania appeals the July 15, 2009 order entered in the Centre County Court of Common Pleas that granted Harvey Elwood Demmitt, Jr.’s motion for a new trial after a jury convicted him of failing to comply with registration of sexual offender requirements pursuant to 18 Pa.C.S.A. § 4915(a)(1).

 

The Commonwealth argues Appellee was not entitled to a new trial as Megan’s Law1 should not be construed to allow sexually violent predators to circumvent the requirement of registering a location as their “residence” by asserting a defense of homelessness. We agree and reverse.