federal courts - abstention

http://www.supremecourt.gov/opinions/13pdf/12-815_qol1.pdf

Syllabus

SPRINT COMMUNICATIONS, INC. v. JACOBS ET AL.
CERTIORARI TO THE U.S. COURT OF APPEALS FOR THE 8th CIRCUIT
      No. 12–815. Argued November 5, 2013—Decided December 10, 2013

Sprint Communications, Inc. (Sprint), a national telecommunicationsservice provider, withheld payment of intercarrier access fees im­posed by Windstream Iowa Communications, Inc. (Windstream), a lo­cal telecommunications carrier, for long distance Voice over InternetProtocol (VoIP) calls, after concluding that the TelecommunicationsAct of 1996 preempted intrastate regulation of VoIP traffic. Wind­stream responded by threatening to block all Sprint customer calls,which led Sprint to ask the Iowa Utilities Board (IUB) to enjoin Windstream from discontinuing service to Sprint. Windstream re­tracted its threat, and Sprint moved to withdraw its complaint. Con­cerned that the dispute would recur, the IUB continued the proceed­ings in order to resolve the question whether VoIP calls are subject to intrastate regulation. Rejecting Sprint’s argument that this questionwas governed by federal law, the IUB ruled that intrastate fees ap­plied to VoIP calls.Sprint sued respondents, IUB members (collectively IUB), in Fed­eral District Court, seeking a declaration that the Telecommunica­tions Act of 1996 preempted the IUB’s decision. As relief, Sprintsought an injunction against enforcement of the IUB’s order. Sprintalso sought review of the IUB’s order in Iowa state court, reiterating the preemption argument made in Sprint’s federal-court complaintand asserting several other claims. Invoking Younger v. Harris, 401 U. S. 37, the Federal District Court abstained from adjudicatingSprint’s complaint in deference to the parallel state-court proceeding. The Eighth Circuit affirmed the District Court’s abstention decision, concluding that Younger abstention was required because the ongo­ing state-court review concerned Iowa’s important interest in regulat­ing and enforcing state utility rates.

 

Held: This case does not fall within any of the three classes of excep­tional cases for which Younger abstention is appropriate. Pp. 6–12.

 

(a) The District Court had jurisdiction to decide whether federal law preempted the IUB’s decision, see Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635, 642, and thus had a “virtually unflagging obligation” to hear and decide the case, Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817. In Younger, this Court recognized an exception to that obligation for cases in which there is a parallel, pending state criminal proceeding. This Court has extended Younger abstention to particular state civil proceedings that are akin to criminal prosecutions, see Huffman v. Pursue, Ltd., 420 U. S. 592, or that implicate a State’s interest in en­forcing the orders and judgments of its courts, see Pennzoil Co. v. Texaco Inc., 481 U. S. 1, but has reaffirmed that “only exceptional cir­cumstances justify a federal court’s refusal to decide a case in defer­ence to the States,” New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 368 (NOPSI). NOPSI identified three such “exceptional circumstances.” First, Younger precludes federal intrusion into ongoing state criminal prosecutions. See 491 U. S., at 368. Second, certain “civil enforcement proceedings” war­rant Younger abstention. Ibid. Finally, federal courts should refrain from interfering with pending “civil proceedings involving certain or­ders . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Ibid. This Court has not applied Younger outside these three “exceptional” categories, and rules, in accord with NOPSI, that they define Younger’s scope. Pp. 6–8.

 

(b) The initial IUB proceeding does not fall within any of NOPSI’s three exceptional categories and therefore does not trigger Younger abstention. The first and third categories plainly do not accommo­date the IUB’s proceeding, which was civil, not criminal in character, and which did not touch on a state court’s ability to perform its judi­cial function. Nor is the IUB’s order an act of civil enforcement of the kind to which Younger has been extended. The IUB proceeding is not “akin to a criminal prosecution.” Huffman, 420 U. S., at 604. Nor was it initiated by “the State in its sovereign capacity,” Trainor v. Hernandez, 431 U. S. 434, 444, to sanction Sprint for some wrongful act, see, e.g., Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U. S. 423, 433–434. Rather, the action was initiated by Sprint, a private corporation. No state authority conducted an inves­tigation into Sprint’s activities or lodged a formal complaint against Sprint. Once Sprint withdrew the complaint that commenced administra­tive proceedings, the IUB argues, those proceedings became, essen­tially, a civil enforcement action. However, the IUB’s adjudicative , authority was invoked to settle a civil dispute between two privateparties, not to sanction Sprint for a wrongful act.

 

In holding that abstention was the proper course, the Eighth Cir­cuit misinterpreted this Court’s decision in Middlesex to mean that Younger abstention is warranted whenever there is (1) “an ongoing state judicial proceeding, which (2) implicates important state inter­ests, and (3) . . . provide[s] an adequate opportunity to raise [federal]challenges.” In Middlesex, the Court invoked Younger to bar a feder­al court from entertaining a lawyer’s challenge to a state ethics com­mittee’s pending investigation of the lawyer. Unlike the IUB’s pro­ceeding, however, the state ethics committee’s hearing in Middlesex was plainly “akin to a criminal proceeding”: An investigation andformal complaint preceded the hearing, an agency of the State’s Su­preme Court initiated the hearing, and the hearing’s purpose was todetermine whether the lawyer should be disciplined for failing tomeet the State’s professional conduct standards. 457 U. S., at 433– 435. The three Middlesex conditions invoked by the Court of Appealswere therefore not dispositive; they were, instead, additional factors appropriately considered by the federal court before invoking Young­er. Younger extends to the three “exceptional circumstances” identi­fied in NOPSI, but no further. Pp. 8–11.

 

690 F. 3d 864, reversed.

GINSBURG, J., delivered the opinion for a unanimous Court

fraud - silence, active concealment

Gnagy Gas and Oil v. Pa. Underground Storage Tank Indemnification Fund – Cmwlth. Court – December 6, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/1371CD12_12-6-13.pdf?cb=1

Generally, as a matter of common law, the elements to prove a claim for fraud or deceit are a misrepresentation, a fraudulent utterance thereof, an intention to induce action thereby, justifiable reliance thereon, and damage as a proximate result. Wilson v. Donegal Mutual Insurance Co., 598 A.2d 1310, 1315 (Pa. Super. 1991).4 To be actionable, a misrepresentation need not be in the form of a positive assertion but may be by concealment of that which should have been disclosed. Id. at 1315-16. See Moser v. DeSetta, 527 Pa. 157, 165, 589 A.2d 679, 682 (1991) (concluding that “the concealment of a material fact can amount to a culpable misrepresentation no less than does an intentional false statement.”). However, while active concealment may constitute fraud, mere silence is not sufficient in the absence of a legal duty to disclose information. Wilson, 598 A.2d at 1315-16; Smith v. Renaut, 564 A.2d 188, 192 (Pa. Super. 1989). Otherwise, fraud by omission is actionable “only where there is an independent duty to disclose the omitted information.” Estate of Evasew, 526 Pa. 98, 105, 584 A.2d 910, 913 (1990).

Pennsylvania law recognizes a difference between active concealment and mere silence in the context of common law fraud. Wilson, 598 A.2d at 1315-16; Smith, 564 A.2d at 192; see American Plan Communities, Inc. v. State Farm Insurance Co., 28 F. Supp. 2d 964, 968 (E.D. Pa. 1998) (citing Wilson) (acknowledging that “[c]oncealment alone may create a sufficient basis for finding that a party engaged in fraud so long as the other elements of fraud are present.”); American Plan Communities, Inc., 28 F. Supp. 2d. at 968 (citing Roberts v. Estate of Barbagallo, 531 A.2d 1125 (Pa. Super. 1987) (noting that Pennsylvania common law subsumes and recognizes the tort of fraudulent concealment as stated in the Restatement (Second) of Torts §550, which imposes liability for intentional concealment of material information regardless of any duty to disclose)), and compare with Duquesne Light Company v. Westinghouse Electric Corporation, 66 F.3d 604, 611 (3d. Cir. 1995) (applying Pennsylvania law) (reiterating that Pennsylvania has adopted the Restatement (Second) of Torts §551, which imposes liability for fraudulent nondisclosure in those situations where there is an affirmative duty to speak/disclose, yet noting that Pennsylvania law is unclear as to when such a duty arises). While this Court is unable to locate any authority within our Commonwealth that expounds meaningfully upon the distinction between “active concealment” and “mere silence,” and given the dichotomy evidenced by the above authorities, perhaps the best way to illustrate, on a surface level, the distinction is by comparing §550 and §551 of the Restatement (Second) of Torts. Section 550 states that liability occurs when “[o]ne party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information.”

 On the other hand, section 551 imposes liability for nondisclosure of information when the defendant has a specific duty to disclose, which arises only in certain, enumerated circumstances.  In United States v. Colton, 231 F.3d 890 (4th Cir. 2000), the United States Court of Appeals for the Fourth Circuit addressed the two legal concepts in a very detailed and scholarly manner. In so doing, the Colton court explained how and why the doctrine of “active concealment” constitutes fraud even if there is no independent legal duty to disclose the information, while the concept of “mere silence” requires the disclosure of information only if there is a positive statutory, regulatory, or legal duty mandating disclosure.

 

As the Colton court elucidated:

At common law, fraud has not been limited to those situations “where there is an affirmative misrepresentation or the violation of some independently-prescribed legal duty”…. Rather, even in the absence of a fiduciary, statutory, or other independent legal duty to disclose material information, common-law fraud includes acts taken to conceal, create a false impression, mislead, or otherwise deceive in order to “prevent[] the other [party] from acquiring material information.” Restatement (Second) of Torts § 550 (1977); see also W. Page Keeton et al., Prosser and Keeton on Torts §106 (5th ed. 1984) (“Any words or acts which create a false impression covering up the truth, or which remove an opportunity that might otherwise have led to the discovery of a material fact ... are classed as misrepresentation, no less than a verbal assurance that the fact is not true.”).

Thus, fraudulent concealment, without any misrepresentation or duty to disclose can constitute common-law fraud. This does not mean, however, that simple nondisclosure similarly constitutes a basis for fraud. Rather, the common law clearly distinguishes between concealment and nondisclosure. The former is characterized by deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or prevent further inquiry into a material matter. The latter is characterized by mere silence. Although silence as to a material fact (nondisclosure), without an independent disclosure duty, usually does not give rise to an action for fraud, suppression of the truth with the intent to deceive (concealment) does. See, e.g., Stewart v. Wyoming Cattle Ranche Co., 128 U.S. 383, 388, 9 S.Ct. 101, 32 L.Ed. 439 (1888).

The Supreme Court in Stewart carefully explained why concealment is “equivalent to a false representation” and so appropriately forms the basis for a common law fraud action: “the concealment or suppression is in effect a representation that what is disclosed is the whole truth. The gist of the action is fraudulently producing a false impression upon the mind of the other party; and if this result is accomplished, it is unimportant whether the means of accomplishing it are words or acts of the defendant, or his concealment or suppression of material facts not equally within the knowledge or reach of the plaintiff.” 128 U.S. at 388, 9 S.Ct. 101; see also … 37 C.J.S. Fraud § 18 (1997) (distinguishing between silence and concealment); 37 Am.Jur.2d Fraud and Deceit §145 (1968) (same). Thus, the common-law principle that, in the absence of an independent disclosure duty, “nondisclosure is not fraudulent, presupposes mere silence, and is not applicable where, by words or conduct, a false representation is intimated or any deceit practiced.” Id. at §174 (and the many cases cited therein); see also Stuart M. Speiser et al.,  The American Law of Torts §32:73 (1992).

Indeed, we have expressly held that the distinction between simple nondisclosure and concealment “is in accord with traditional principles of common law fraud.” Fox v. Kane-Miller Corp., 542 F.2d 915, 919 (4th Cir. 1976). In Fox, we upheld the district court’s reliance on the following explanation of this principle by Maryland’s highest court:  Concealment and non-disclosure are closely related and in any given situation usually overlap.... When [either is] done without intent to mislead and without misrepresentation, it has no effect except where there is a duty of disclosure.... To create a cause of action, concealment must have been intentional and effective - the hiding of a material fact with the attained object of creating or continuing a false impression as to that fact. The affirmative suppression of the truth must have been with intent to deceive.  Fegeas v. Sherrill, 218 Md. 472, 147 A.2d 223, 225 (1958) (quoting Restatement of Restitution §8 cmt. b (1937) and citing Restatement of Torts §550 (1938)).

Given this “close relationship” between nondisclosure and concealment, numerous decisions expressly distinguish between passive concealment - mere nondisclosure or silence - and active concealment, which involves the requisite intent to mislead by creating a false impression or representation, and which is sufficient to constitute fraud even without a duty to speak.

In short, at common law, no fiduciary relationship, no statute, no other independent legal duty to disclose is necessary to make active concealment actionable fraud - simple “good faith” imposes an obligation not to purposefully conceal material facts with intent to deceive. Strong v. Repide, 213 U.S. 419, 430, 29 S.Ct. 521, 53 L.Ed. 853 (1909); Tyler v. Savage, 143 U.S. 79, 98, 12 S.Ct. 340, 36 L.Ed. 82 (1892); Stewart, 128 U.S. at 388, 9 S.Ct. 101.  Colton, 231 F.3d at 898-99. Accord, e.g., Wells Fargo Bank v. Arizona Laborers, 38 P.3d 12, 21 (Ariz. 2002) (differentiating between mere silence or nondisclosure and intentional concealment and concluding that “[u]nlike simple nondisclosure, a party may be liable for acts taken to conceal, mislead or otherwise deceive, even in the absence of a fiduciary, statutory, or other legal duty to disclose.”).

The Colton court’s in-depth analysis is consistent with the observations made by our Superior Court in Youndt v. First National Bank, 868 A.2d 539 (Pa. 26 Super. 2005), and Baker v. Cambridge Chase, Inc., 725 A. 2d 757 (Pa. Super. 1999). In Youndt, the Superior Court concluded that the tort of fraudulent concealment in the Restatement (Second) of Torts §550 was not applicable because there was no allegation that the defendant in that case engaged in active concealment, but the court also stated that the defendant could be held liable for nondisclosure under the Restatement (Second) of Torts §551 if an enumerated duty to disclose existed. 868 A.2d at 549-51. In Baker, the Superior Court noted that for purposes of the Restatement (Second) of Torts §550, “concealment or other action” occurs, inter alia, when there is “an intentional concealment of true facts which is calculated to deceive the other party.” 725 A.2d at 769. Accordingly, we find the Colton court’s commentary consonant with Pennsylvania law and persuasive.

welfare - transfer of assets - renunciation of right to remaining principal in residual trust

Shell v. DPW – Cmwlth. Court – December 4, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/203CD13_12-4-13.pdf?cb=1

This case presents an issue of first impression as to whether a beneficiary’s renunciation of her right to the remaining principal in a terminated residual trust, originally created by will, constitutes a transfer of assets for less than fair consideration thereby affecting her eligibility for Medical Assistance - Long Term Care (MA-LTC) benefits.

Specifically, Dorothy Schell petitions for review of the final administrative action order of the Department of Public Welfare, affirming the adjudication and order of an administrative law judge ) recommending the denial of Petitioner’s appeal from the determination of the Northumberland County Assistance Office  that she was ineligible for MA-LTC benefits for the period from January 28, 2011, through August 16, 2012. We affirm.

arbitration - two-contract setting - no arb. clause in retail installment sales contract

Knight v. Springfield Hyundai – Pa. Super. – December 2, 2014

http://www.pacourts.us/assets/opinions/Superior/out/J-A23029-13o%20-%201016343761821856.pdf?cb=1

Pennsylvania has a well-established public policy that favors arbitration, and this policy aligns with the federal approach expressed in the Federal Arbitration Act.” . “Arbitration is a matter of contract, and parties to a contract cannot be compelled to arbitrate a given issue absent an agreement between them to arbitrate that issue.” . “Even though it is now the policy of the law to favor settlement of disputes by arbitration and to promote the swift and orderly disposition of claims, arbitration agreements are to be strictly construed and such agreements should not be extended by implication.

The Pennsylvania Legislature enacted the MVSFA in 1947 in an attempt to promote the welfare of its inhabitants and to protect its citizens from abuses presently existing in the installment sale of motor vehicles, and to that end exercise the police power of the Commonwealth to bring under the supervision of the Commonwealth all persons engaged in the business of extending consumer credit in conjunction with the installment sale of motor vehicles; to establish a system of regulation for the purpose of insuring honest and efficient consumer credit service for installment purchasers of motor vehicles; and to provide the administrative machinery necessary for effective enforcement. 69 P.S. § 602.

Pursuant to the MVSFA, if a buyer is purchasing a vehicle via installment sale, the contract must be in writing, signed by the buyer and the seller, “and shall contain all of the agreements between the buyer and the seller relating to the installment sale of the motor vehicle sold[.]” 69 P.S. § 613(A) (emphasis added).

There are no cases interpreting section 613(A) of the MVSFA. Looking at the clear and unambiguous language of the statute, it is apparent that when a buyer makes a purchase of a vehicle by installment sale, the retail installment sales contract (RISC) subsumes all other agreements relating to the sale. See 1 Pa.C.S.A. § 1921(b) (“When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”).

In this case, the Buyer’s Order contained an arbitration agreement, but the RISC did not. Thus, we conclude there was no enforceable arbitration agreement between Knight and Appellees, and the trial court erred as a matter of law by granting Appellees’ Preliminary Objections and submitting the case to binding arbitration.

UC - reconsideration - good cause

Laster v. UCBR – Cmwlth. Court – November 26, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/151CD13_11-26-13.pdf?cb=1

Claimant had problems with her supervisor.  When they reviewed a written report of the supervisor, claimant said she wasn’t accusing the supervisor of lying but one statement in the report was a lie.  Claimant was fired and referee found she'd committed willful misconduct.

Claimant timely appealed to the UCBR, which determined that although Employer had the right to discharge Claimant, Claimant’s statement to her supervisor that the supervisor was lying was not willful misconduct. (UCBR’s Decision, 10/12/12, at 3.) The UCBR explained:

 

The claimant may not have used the most appropriate language by spontaneously saying that it was a lie. The employer may have had reason to determine that the claimant could no longer work with her supervisor. However, the claimant’s comment was not so egregious as to rise to the level of disqualifying willful misconduct.

Therefore, the UCBR reversed the referee’s decision and awarded Claimant benefits.

By letter dated October 26, 2012, Employer requested reconsideration of the UCBR’s decision. In the five-page letter, Employer objected to Claimant’s petition for appeal to the UCBR, claiming that it was improperly filed by a different counsel than was present at the referee’s hearing and that it was replete with inaccurate and misleading statements. Employer also outlined numerous “inaccuracies” in the UCBR’s findings of fact and offered Employer’s “corrected” version of the facts.

The UCBR granted Employer’s request for reconsideration and vacated its prior order. The UCBR did not state any reason for granting reconsideration and did not take any additional evidence. The UCBR then entered a new order affirming the referee’s denial of benefits under section 402(e) of the Law. The UCBR concluded:

The claimant stated the supervisor was lying. At that point, the employer had reason to determine that the claimant could no longer work with her supervisor. However she phrased it, the claimant accused her supervisor of lying at a meeting with the Executive Director. That amounts to disqualifying willful misconduct.

Claimant requested reconsideration of the UCBR’s decision, which the UCBR denied.

In her petition for review, Claimant asserts that the UCBR abused its discretion in granting reconsideration and vacating its October 12, 2012, order without good cause. We agree.

The UCBR’s regulations provide that reconsideration will be granted “only for good cause in the interest of justice without prejudice to any party.” 34 Pa. Code §101.111(b). “In determining whether ‘good cause’ exists, the [UCBR] must consider whether the party requesting reconsideration has presented new evidence or changed circumstances or whether [the UCBR] failed to consider relevant law.” Ensle v. Unemployment Compensation Board of Review, 740 A.2d 775, 779 (Pa. Cmwlth. 1999). None of these requirements was met in this case.

In its reconsideration request, Employer did not allege a change of circumstance, seek to introduce new evidence that was unavailable at the time of the hearing, or articulate any legal theory that the UCBR failed to consider in its initial decision. Employer merely reargued its case before the UCBR, which is not “good cause” for granting reconsideration. See Bushofsky v. Unemployment Compensation Board of Review, 626 A.2d 687, 690 (Pa. Cmwlth. 1993) (stating that reconsideration is properly denied where the petitioner seeks to introduce “the evidence already offered”); Grcich v. Unemployment Compensation Board of Review, 440 A.2d 681, 682-83 & n.1 (Pa. Cmwlth. 1982) (holding that the UCBR improperly granted reconsideration and reversed its prior order where “the only additional factual elements contained in the record” after the UCBR’s initial decision were two employer letters asserting that the UCBR “‘completely ignore[d] the testimony of every witness except [claimant]’” and committed other improprieties) (quoting the record); see also Ensle, 740 A.2d at 779-80 (noting that the UCBR may not grant reconsideration merely to revisit credibility issues).

Moreover, “before the [UCBR] agrees to reconsider its own decision[,] there must appear of record some reason to support this exercise of discretion.” Flanagan v. Unemployment Compensation Board of Review, 407 A.2d 471, 473 (Pa. Cmwlth. 1979). Here, nothing in Employer’s reconsideration request, the UCBR’s order granting reconsideration, or the record demonstrates good cause. In addition, because the UCBR failed to state its reason for granting reconsideration and took no additional evidence, Claimant had no opportunity to present her position on the issue or issues being reconsidered. The UCBR acted in direct conflict with its own regulation, which states that reconsideration is proper “only for good cause in the interest of justice without prejudice to any party.” 34 Pa. Code §101.111(b). Therefore, we conclude that the UCBR abused its discretion in granting reconsideration without good cause.

Judgment - execution - entireties property - separate judgments v. spouses cannot be combined

ISN Bank v. Rajaratnam – Superior Cour – November 25, 2012

http://www.pacourts.us/assets/opinions/Superior/out/J-A26018-13o%20-%201016301321817376.pdf?cb=1

Appellant, ISN Bank appeals from the order of the trial court dated January 24, 2013 denying a motion to consolidate two judgments, one each against Appellees, a married couple.

This case presents an issue of first impression for Pennsylvania appellate courts, namely whether separate judgments entered against a husband and wife may be consolidated so that assets held as tenants by the entireties may be executed upon to satisfy a joint indebtedness. For the reasons that follow, we conclude that they may not be consolidated and affirm the trial court’s order.

No procedural mechanism exists in Pennsylvania to consolidate judgments against different people. Rule 3025.1 of the Pennsylvania Rules of Civil Procedure authorizes the consolidation of “two or more judgments entered against the same person in the same county,” Pa.R.C.P. 3025.1, but no similar rule sanctions the consolidation of two or more judgments entered against different people (whether husband and wife, or otherwise).

Even if a procedural mechanism did exist for consolidating judgments against different people, Pennsylvania substantive law would not permit consolidation in this case. In this regard, we begin with the 1912 decision in Beihl v. Martin, 236 Pa. 519, 84 A. 953 (1912), in which our Supreme Court discussed “the modern innovations on the common law respecting the property rights of married women.” Id. at 522, 84 A. at 954.

One is the basic attributes of property held in a tenancy by the entireties is that, fundamentally the estate rests on the legal unity of husband and wife. It is therefore a unit, not made up of divisible parts subsisting in different natural persons, but is an indivisible whole, vested in two persons actually distinct, yet to legal intendment one and the same. Each is seised of the whole estate from its inception, and upon the death of one, while the right of survivorship remains to the other, that other takes no new title or estate. It is this striking peculiarity of the estate—the entirety alike in husband and wife—that operates to exempt it from execution and sale at the suit of a creditor of either separately. The enforcement of such process would be the taking of the property of one to pay the debt of another. Id. at 522-23, 84 A. at 954. Because of this “striking peculiarity,” the Supreme Court observed that any disposition of property held as tenants by the entireties must be based upon a “joint act” of husband and wife together.

Based upon the basic principles established in Beihl, the law of Pennsylvania has developed to provide that in order to execute upon property held as a tenancy by the entireties, a creditor must obtain a judgment against both the husband and the wife as joint debtors: The law of Pennsylvania is quite clear that a judgment creditor may execute on entireties  property to enforce his judgment if both spouses are joint debtors. However, if only one spouse is a debtor, entireties property is immune from process, petition, levy, execution or sale. In the latter situation, the judgment creditor has only a potential lien against property held by the entireties based on the debtor spouse's expectancy to become sole owner. Further, where a husband and wife own property as tenants by the entireties, they may alien it without infringing upon the rights of one spouse's creditors. Klebach v. Mellon Bank, N.A., 565 A.2d 448, 450 (Pa. Super. 1989) (citations omitted); see also Arch Street Bldg. & Loan Assn. v. Sook, 158 A. 595, 596 (Pa. Super. 1932) (“In order to bind the land held by entireties, judgment must include both of the parties.”); Napotnik v. Equibank and Parkvale Sav. Ass'n, 679 F.2d 316, 321 (3d Cir. 1982)  (“[A] creditor with a joint judgment on a joint debt may levy upon the property itself and thus upon the interests of both spouses.”).

 Beihl establishes the requirement of “joint action” by spouses to permit execution on property held as a tenancy by the entireties, but did not address what type of “joint action” is required of spouses to create a joint debt to permit an encumbrance. Beihl does not resolve the question of whether the “joint action” requirement must be satisfied by the performance of a single act performed by husband and wife together, or if instead separate acts resulting in the same indebtedness will suffice. In this case, Customers Bank contends that although the two judgments at issue here resulted from separate acts (i.e., signing two different guarantee agreements), the end result of these separate acts was a joint indebtedness of the Rajaratnams, thus permitting consolidation of the judgments to reach their entireties property to satisfy said joint indebtedness.  

 As noted, no Pennsylvania appellate court has addressed this issue. In A. Hupfel’s Sons v. Getty, 299 F. 939 (3d Cir. 1924), however, the Third Circuit Court of Appeals, applying Pennsylvania law, considered whether  separate acts by spouses resulting in a joint indebtedness may result in the encumbrance of entireties property under the principles set forth in Beihl. While the decision in A. Hupfel’s Sons is not binding upon this Court, we may consider it as persuasive authority on the issue now before this Court. See, e.g., Commonwealth v. Dunnavant, 63 A.3d 1252, 1255 n.2 (Pa. Super. 2013), appeal granted on other grounds, __ Pa. __, 73 A.3d 524 (2013).

 We agree with the Third Circuit that separate actions by spouses resulting in separate judgments are not sufficient to encumber entireties property.2 To establish a joint debt that may serve as the basis for a lien on entireties property, the two spouses must act together in the same transaction and in so doing incur a joint liability.3 Only by acting together will the spouses satisfy Beihl’s “joint action” requirement, as their mutual decision to incur a joint debt demonstrates a willingness to “strip the estate of its attributes and create a wholly different estate in themselves.” Beihl, 236 Pa. at 527-28, 84 A. at 956. In the present case, the separate judgments against the Rajaratnams were entered pursuant to separate documents, in separate transactions, and for separate considerations.

default judgment - 10-day notice - specific reasons - facial defect - motion to strike - timeliness not a factor

Oswald v. WB Public Square Association – Pa. Super. November 7, 2012

http://www.pacourts.us/assets/opinions/Superior/out/J-A11020-13o%20-%201016116211795813.pdf?cb=1

Under Pa. R.C.P. 237.1(a)(2), a notice of intent to take default judgment must include the specific reasons why the defendant is in default.   The language in the form specified by the rule states that "you are in default because….. [emphasis added].  The rule requires more than merely stating the the defendant is in default for failure to take action required in the case – which was the language required under the pre-1994 rule.

This decision is based in large part on the Cmwlth. Court decision in David J. Lane Advertising, 33 A.3d 674 (Pa. Cmwlth. ) which the Superior Court found "highly instructive." 

A notice which does not comply with the rule is defective on its face and is not subject to the discretion of the trial court.  It is a "fatal defect on the face of the record" and "cannot support a default judgment."  Therefore, it is "void ab initio" and timeliness of the petition to strike is not a factor as it would be for a judgment was merely voidable.  The prothonorary is "without authority" to enter such a void judgment, which is a "legal nullity" and "must be stricken without regard to the passage of time."

Sec. 1983 - "under color of state law"

Washington-Pope v. City of Philadelphia – ED Pa. – October 22, 2013 (58 pp)

http://www.paed.uscourts.gov/documents/opinions/13D0882P.pdf

Officer Yolaina Washington-Pope’s harrowing ordeal raises the question of whether an on-duty, in-uniform police officer, who raises his service weapon to his partner’s temple as their exchange of words in their police cruiser rapidly escalates, acts under color of state law for purposes of 42 U.S.C. § 1983. Although the facts of this case and Ms. Washington-Pope’s experiences are doubtlessly distressing, the Third Circuit Court of Appeals’ precedent, the acknowledged purposes of § 1983, and more analogous case law from other courts constrain this Court to answer that question in the negative. This case serves as a sobering reminder that federal law does not provide a remedy for every wrong or even every horrifying injury.

consumer - debt collection - notice - debt disputed

Hillman v. NCO Financial Systems – ED Pa. – Sept. 25, 2013

http://www.paed.uscourts.gov/documents/opinions/13D0803P.pdf

Under the statute, a debt collector must send a consumer a written notice containing, inter alia,  a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector.  15 U.S.C. § 1692g(a)(4) (emphasis added).

In his allegations, plaintiff focuses on the fact that the sentence of the Letter that begins, “If you notify this office in writing within 30 days . . . .” fails to contain the words “that the debt, or any portion thereof, is disputed.”

The flaw in plaintiff’s argument is that a consumer, as a matter of law, does not specifically need to identify a dispute in writing, as plaintiff claims, to exercise the right to verification. “[U]nder the FDCPA, requesting verification is sufficient to trigger a debt collector’s verification obligations. ‘Dispute’ is a term of art in FDCPA parlance that means a request to verify the existence of a debt.” Gruber v. Creditors’ Protection Service, No. 12-cv-1243, 2013 WL 2072976, at *2 (E.D. Wis. May 14, 2013) (citing DeKoven v. Plaza Assocs., 599 F.3d 578, 582 (7th Cir. 2010)). Because the consumer need not include the actual word “dispute” in a request for verification, defendant’s failure to instruct the consumer to do so is inconsequential.

private right of action

Assn. of New Jersey Rifle and Pistol Clubs – Port Authority – 3d Cir. – September 16, 2013

http://www2.ca3.uscourts.gov/opinarch/123621p.pdf

Held, that Plaintiff did not have a private right of action under 18 US  926A concerning the transportation of firearms in interstate commerce. 

UC - vol. quit - change of conditions - health problems - long commute

Karwowski v. UCBR – Sept. 12, 2013 – Cmwlth. Court

http://www.pacourts.us/assets/opinions/Commonwealth/out/2301CD12_9-12-13.pdf?cb=1

The Court (2-1) reversed the UCBR and held that a claimant with a 240 round-trip daily commute, which resulted in health problems, had good cause to quit the job.  Both parties attended the referee hearing, but only the Claimant testified.

The job was in North Carolina and paid 1/3 of what he made from his last job, which he had lost a year before.  He worked for about three weeks.

Before starting the job, Claimant searched for an apartment closer to work but found the cost range to be too expensive for him to pay, in light of the fact that Claimant was trying to maintain his current residence.) After starting the job, Claimant continued to look for an apartment and also sought help from Employer’s human resources department.  For two weeks, Claimant completed the five-hour, round-trip commute.  Claimant testified that he suffered severe anxiety and stress because of the commute. He was vomiting at work, and his family grew concerned about his safety.  The travelling adversely impacted his sleep, and several times he nearly fell asleep on the drive home. Claimant voluntarily quit, telling Employer that he was taking his career in a different direction.

Capricious disregard

Where, as here, the burdened party “is the only party to present evidence and did not prevail before the UCBR, our scope of review on appeal is whether the UCBR committed an error of law or capriciously disregarded the evidence.” See Eby v. Unemployment Compensation Board of Review, 629 A.2d 176, 178 (Pa. Cmwlth. 1993). While this formulation of the capricious disregard standard was subsumed by the Supreme Court decision in Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), it still remains viable. Hinkle v. City of Philadelphia, 881 A.2d 22, 27 n.9 (Pa. Cmwlth. 2005) (providing a detailed description of the proper application of the capricious disregard standard post-Wintermyer). Where only one party presents evidence, as is the case here, the failure to credit such evidence is a per se violation of that standard.

Findings of fact not supported by substantial evidence

Claimant challenges the UCBR’s Finding of Fact Number 6, which states: “The claimant spoke with a human resources representative, who referred the claimant to another employee who had found an apartment near the employer’s site, at a reasonable price.”  Claimant argues that no evidence supports the UCBR’s introduction of the “at a reasonable price” language. We agree.   Claimant testified that he could not find an affordable apartment. There was no other evidence about the cost of nearby apartments. Thus, we agree with Claimant that this finding is not supported by any evidence, and we disregard it insofar as it implies that Claimant could afford a nearby apartment.

Claimant next challenges the UCBR’s Finding of Fact Number 7, which states: “The claimant did not consider sharing an apartment with a roommate.” (UCBR’s Findings of Fact, No. 7.) Nothing in the record indicates that Claimant did or did not consider sharing an apartment with a roommate. Moreover, nothing requires an employee to consider sharing an apartment with a roommate. Thus, we agree with Claimant that this finding is not supported by any evidence, and we disregard it.

 Claimant also challenges the UCBR’s Finding of Fact of Number 8, which states: “The claimant did not speak to his direct supervisor about the transportation problem.” (UCBR’s Findings of Fact, No. 8.) However, Claimant discussed the situation with his direct supervisor in order to modify his work schedule. (N.T. Ex. 5 at 2.) Employer presented no contradictory evidence at the hearing. Therefore, we agree that no evidence supports this finding, and we disregard it.

No reasons given for disregarding unchallenged finding by referee

The UCBR also disregarded the referee’s Finding of Fact Number 6, which stated: “The claimant contacted 3 realtors for information on apartments.” “The [UCBR] may not . . . simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its reasons for doing so.” Treon v. UCBR, 499 Pa. 455, 460, 453 A.2d 960, 962 (1982). Claimant unambiguously testified that he contacted three real estate agents. Employer presented no contradictory evidence. If the UCBR did not credit or believe Claimant’s testimony, it needed to provide an explanation for disregarding the testimony to avoid abusing its discretion under the capricious disregard standard. See Hinkle, 881 A.2d at 27. Moreover, this finding of fact is not trivial or irrelevant because it highlights the efforts that Claimant made to find affordable housing near the jobsite. Thus, the UCBR erred in disregarding this finding without stating its reason for doing so, and we will consider this finding in determining whether Claimant had a necessitous and compelling reasons for voluntarily quitting.

“To be eligible for unemployment benefits under Section 402(b), a claimant has the burden of establishing a necessitous and compelling reason for voluntarily terminating his or her employment.” ….A claimant must demonstrate circumstances “‘which produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.’” ……Treon, 499 Pa. at 462, 453 A.2d at 963 (citation omitted) (finding that commute of over 300 miles created real and substantial pressure to compel a reasonable person to terminate his employment). “The crux of an inquiry in determining whether a claimant had cause of a necessitous and compelling nature for leaving his or her work is whether the offered work was suitable.” Speck, 680 A.2d at 29-30.  Section 4(t) of the Law lists factors to consider in determining the suitability of work including: “the distance of the available work from his residence” and “the permanency of his residence.” 43 P.S. §753(t).

Change of conditions not related to employer action

In Shaw v. UCBR,, 406 A.2d 608, 609 (Pa. Cmwlth. 1979), an employee accepted a position 100 miles away from his residence, knowing that the commute would take two hours to complete. The employee worked at the position for three months before resigning.  This court held that the difficult commute did not constitute a necessitous and compelling cause….Here, because Claimant accepted the position knowing of the arduous commute, we do not view the relatively subtle, factual differences raised by Claimant as distinctions making Shaw inapplicable. Thus, because Claimant accepted the position with Employer, a presumption exists that the position was suitable.

 However, a claimant may successfully assert that employment became unsuitable due to conditions he was not aware of when he took the job. …This court in Shaw noted that “to demonstrate his entitlement to benefits, [a claimant] must overcome that admission by showing a change in his job conditions or a deception by the employer, making him unaware, when he entered the employment relationship, of conditions which he later alleges to be onerous.” ….In other words, the presumption of suitability is rebuttable.

“Medical problems can constitute cause of a necessitous and compelling nature.” Wheelock Hatchery, Inc. v. UCBR, 648 A.2d 103, 107 (Pa. Cmwlth. 1994) (finding necessitous and compelling cause where an employee was denied a modified schedule needed to meet requirements of his substance abuse rehabilitation). “To establish health as a compelling reason for quitting a job a claimant must: (1) offer competent testimony that adequate health reasons existed to justify termination; (2) have informed the employer of the health problem; and (3) be available, where a reasonable accommodation is made by the employer, for work which is not inimical to his health.” Ridley School District v. UCBR 637 A.2d 749, 752 (Pa. Cmwlth. 1994)

Here, Claimant testified that after taking the job he experienced significant health problems as a result of the laborious commute. ….Employer did not contest this testimony. When Claimant accepted the job, he had been unemployed for over a year, and he was desperate enough to take a job paying him one-third of his previous salary. ….While Claimant knew that the commute would be difficult, he could not foresee that significant health complications would arise.  

Claimant informed Employer of his issues, speaking to his direct supervisor and the human resources department. Claimant made significant efforts to turn an impossibly difficult situation into a manageable one by revising his work schedule, looking into transferring to a branch office, researching carpooling, and searching for affordable apartments. When these efforts proved unsuccessful, necessarily, under the circumstances, Claimant made a reasonable decision to resign due to strains on his physical and mental health.

We recognize that Employer did not modify the conditions of Claimant’s employment or deceive him; however, Claimant did not anticipate the stress and anxiety that the long daily commute would cause him. Denying Claimant UC benefits only because he initially accepted the job would penalize him for making a reasonable effort in good faith to seek out and maintain new employment. Had Claimant declined the position, he would still be receiving UC benefits from his previous employer.7

7 In interpreting the Law, we recall that “an unemployed worker in a covered employment is entitled to benefits, and loses them only when he falls under the condemnation of a disqualifying provision of the [Law], fairly, liberally, and broadly interpreted.” Long, 475 A.2d at 192 (citation omitted).

Accordingly, we reverse.

MDJ court - non-attorney rep. personal knowledge of subject matter of litigation

order - http://www.pacourts.us/assets/opinions/Supreme/out/363mag.pdf?cb=1

rule -  http://www.pacourts.us/assets/opinions/Supreme/out/363mag-attach.pdf?cb=1

final report - http://www.pacourts.us/assets/opinions/Supreme/out/363mag-rpt.pdf?cb=1

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

MDJ Rule 207

(B) A representative, employee, or authorized agent:

(1) must provide written verification of personal knowledge of the subject matter of the litigation, and

(2) may take no action on behalf of a party until the written authorization required under paragraph (A)(1), (2), or (3) is filed with the court.

Official Note

This rule is intended to permit a non-lawyer representative, employee, or authorized agent to appear on behalf of an individual, partnership, corporation or similar entity, or

unincorporated association, but not to allow a non-lawyer to establish a business for the purpose of representing others in magisterial district court proceedings.

 

It is intended that the designation of a non-lawyer representative, employee, or authorized agent to represent a party is to apply only on a case-by-case basis. A party may not give blanket authorization for a non-lawyer representative, employee, or authorized agent to represent the party in all cases involving the party.

 

As to ‘‘personal knowledge of the subject matter of the litigation’’ see Pa.R.E. 602 and Comment.

 

A business organized as a sole proprietorship may be represented in the same manner as an individual under paragraph (A)(1).

 

See rules in Chapter 800 as to representation of minors and incapacitated persons by guardians.

UC - vol. quit - transportation problems

RAME Inc. v. UCBR – Cmwlth Court – 9-6-13 – unreported memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/621CD13_9-6-13.pdf?cb=1

For transportation inconvenience to constitute necessitous and compelling cause “a claimant must establish that the inconvenience presented an insurmountable problem and that he took reasonable steps to remedy or overcome the problem prior to terminating employment.” Pollard, 798 A.2d at 817. However, where a claimant makes a laudable effort to maintain employment and is thereafter forced to terminate his employment due to stressful circumstances and insurmountable commuting problems, “the decision to terminate employment rises above mere personal whim or choice and instead represents a reasonable response to causes of a necessitous and compelling nature.” Speck v. Unemployment Comp. Bd. of Review, 680 A.2d 27, 31 (Pa. Cmwlth. 1996).

There is a presumption that an unemployed worker who registers for UC benefits is able and available for work. Penn Hills Sch. Dist. v. Unemployment Comp. Bd. of Review, 496 Pa. 620, 437 A.2d 1213 (1981). Here, Employer offered no evidence that Claimant was not available for work.

--------------------------

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.

 

municipal liens - burden of proof - strict compliance

City of Philadelphia v. Manu – Cmwlth. Court – Stpember 6, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/84CD12_9-6-13.pdf?cb=1

All lawfully imposed or assessed municipal claims are liens on the property by operation of law….The Municipal Liens Act provides for a specific, detailed and exclusive procedure that must be followed to challenge or collect on a municipal lien placed in cities of first class, such as the City.


Burden of proof

The City had the burden of proving strict compliance with the requirements of the Act. ….In reviewing each of these mandatory steps, it is apparent that there was not even substantial, let alone strict, compliance. The petition neither listed "all tax and municipal claims," nor gave any sense of their magnitude. …. Nonetheless, the City asserts that its actual lien is for $14,702.99 and, presumably, expects to collect at least that amount from the sale if the proceeds are sufficient.

The City had the burden of proving strict compliance with the requirements of the Act. ….In reviewing each of these mandatory steps, it is apparent that there was not even substantial, let alone strict, compliance. The petition neither listed "all tax and municipal claims," nor gave any sense of their magnitude. The only claim listed in the petition is a lien for unpaid water and sewer rents in the amount of $0. Subsequently, the City filed an amended claim for unpaid taxes in the amount of $657.54. Nonetheless, the City asserts that its actual lien is for $14,702.99 and, presumably, expects to collect at least that amount from the sale if the proceeds are sufficient.


Purpose of tax/sheriff's sales

The purpose of sheriff's sales under the Municipal Liens Act, as well as tax sales under the Real Estate Tax Sale Law,…is not to strip the owner of his or her property but to collect municipal claims. ….


Due process requires strict compliance
Strict compliance with the service requirement protects the procedural due process rights of all interested parties to notice and an opportunity to be heard and also guards against deprivation of property without substantive due process of law. ….The collection of claims may not be implemented without due process of law guaranteed by the United States and Pennsylvania Constitutions…..


Requirement of a hearing
Similarly, the requirement that the court hold a hearing to determine the accuracy of the facts in the City’s petition is an important due process safeguard. This is particularly true when the City is proceeding under …Municipal Liens Act,,,…where no judgment has been entered on the lien.

criminal convictions - expungement - burden of proof

Commonwealth v. Trimble – Superior Court – Sept. 3, 2013

http://www.pacourts.us/assets/opinions/Superior/out/J-S42034-13o%20-%201015387711712738.pdf?cb=1

In this case, the Commonwealth undeniably failed to meet its burden where elected not to oppose, in any way, Appellant’s petition. Thus, the trial court abused its discretion in finding that, “when balancing [Appellant’s] right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records, in this particular case, greater weight must be afforded to the Commonwealth’s  interest in preserving such records,”where the Commonwealth simply did not advance an interest in preserving Appellant’s records. Accordingly, we reverse the order denying Appellant’s petition.

The Superior Court has required the trial court to "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, 494 Pa. 325, 431 A.2d 877, 879 (Pa. 1981).

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. In addition, Wexler explicitly placed the burden of proof on the Commonwealth.

In general terms, we held that when the Commonwealth admits that it is unable to bear its burden of proof beyond a reasonable doubt at trial, then "the Commonwealth must bear the burden of justifying why the arrest record should not be expunged." Id. at 880. Commonwealth v. Moto, 23 A.3d 989, 993-94 (Pa. 2011) (emphasis added).

 

UC - willful misconduct - employer rule - good cause for violation

Bell Socialization Services v. UCBR – Cmwlth. Court – August 29, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/414CD13_8-29-13.pdf?cb=1

Claimant had good cause for violating Employer’s work rule requiring that she have reliable transportation, because she did not have sufficient income to repair or replace her vehicle.  Her own vehicle broke down, and her mother's became inoperable because of an accdent.   She earned only $9.00/hour and had a wage garnishment.  Claimant acted justifiably in light of all of the circumstances.   

UC - school employee - sec. 402.1 - layoff prior to end of school year

Chester Community Charter School v. UCBR – Cmwlth. Court – August 27, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/60CD13_8-27-13.pdf?cb=1

A school employee who is laid off prior to the end of a school year is not ineligible under sec. 402.1, even if, as the time of the layoff, she is given reasonable assurance of re-employment at the start of the ensuing school year.

________________________________

This Court has held that the legislature’s intent in enacting Section 402.1 was to eliminate the payment of benefits to employees who were unemployed for predetermined periods of time, but not to employees who become unemployed due to an unanticipated cause.….If a school employee is laid off and receiving benefits prior to the end of the academic term, she remains eligible for benefits during the summer break even if she has a reasonable assurance of work in the next term.

In this case. the claimant received reasonable assurance of returning to work at the start of the 2012-2013 school year. However, claimant was laid off on April 4, 2012, two months prior to the end of the school year; therefore, she was unemployed and eligible to collect benefits. It was not the intent of Section 402.1(2) of the Law to exclude a claimant in such a case.

consumer - arbitration - wrongful death action

Pisano v. Extendicare Homes – Superior Court – August 12, 2013

 http://www.pacourts.us/assets/opinions/Superior/out/J-A17012-13o%20-%201015156611688137.pdf?cb=1

We hold that Pennsylvania’s wrongful death statute creates an independent action distinct from a survival claim that, although derived from the same tortious conduct, is not derivative of the rights of the decedent.

We conclude, therefore, that the trial court did not abuse its discretion in determining that Decedent’s contractual agreement with Belair to arbitrate all claims was not binding on the non-signatory wrongful death claimants.

foreclosure - defective Act 91 - timely assertion

Nationstart Mortgage v. Lark - Superior Court – August 14, 2013

http://www.pacourts.us/assets/opinions/Superior/out/J-S46007-13o%20-%201015172521690158.pdf?cb=1

On appeal, Lark raises a single issue for our consideration and determination, namely whether the trial court erred in denying her motion to set aside the sheriff’s sale because the Act 91 notice she received was defective. She contends that the Act 91 notice was defective because it omitted the name of the original lender (AAKO, Inc.) and listed GMAC as the “current lender/servicer” even though the mortgage was not assigned to GMAC until after the default judgment was entered.

We affirm the trial court’s order denying Lark’s Motion to Set Aside Sheriff’s Sale because Lark failed to raise the issue of the alleged defects in the Act 91 notice in a timely fashion. Section 1681.5(2) of the Homeowner Assistance Settlement Act, 35 P.S. §§ 1681.1-1681.7, enacted on June 22, 2012, provides as follows:

§ 1681.5. Effect of noncompliance with notice requirements in the Homeowner's Emergency Mortgage Assistance Program

* * *

(2) The failure of a mortgagee to comply with the requirements of sections 402-C and 403-C of the Housing Finance Agency Law must be raised in a legal action before the earlier delivery of a sheriff’s or marshal’s deed in the foreclosure action or delivery of a deed by the mortgagor.  35 P.S. § 1681.5(2).

Section 1681.7 provides that the provisions of section 1681.5 are to be applied retroactively to June 5, 1999. 35 P.S. § 1681.7. Here, Lark filed her Motion to Set Aside Sheriff’s Sale on November 28, 2011, raising for the first time the issue of defects in her Act 91 notice. The sheriff’s sale took place on September 13, 2011, and the trial court determined that the sheriff’s deed was delivered on November 15, 2011.  Homeowner did not raise any objections until 13 days later.

Appellee NM LLC denies that the Act 91 notice delivered in this case was defective, but contends that even to the extent that it was defective, Lark failed to allege or prove that she suffered any prejudice as a result. In support of this argument, NM LLC cites to Wells Fargo Bank, N.A. v. Monroe, 966 A.2d 1140 (Pa. Super. 2009). Lark claims that no showing of prejudice is required when an Act 91 notice is defective, citing to this Court’s more recent decision in Beneficial Consumer Discount Co. v. Vukmam, 37 A.3d 596 (Pa. Super. 2012), appeal granted, __ Pa. __, 55 A.3d 100 (2012). As a result of our disposition, we need not address this issue.