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.
Thursday, August 29, 2013
UC - willful misconduct - employer rule - good cause for violation
Bell Socialization Services v. UCBR –
Cmwlth. Court – August 29, 2013
Tuesday, August 27, 2013
UC - school employee - sec. 402.1 - layoff prior to end of school year
Chester Community Charter School v.
UCBR – Cmwlth. Court – August 27, 2013
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.
Friday, August 16, 2013
consumer - arbitration - wrongful death action
Pisano
v. Extendicare Homes – Superior Court – August 12, 2013
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
S ection 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.
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).
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.
Wednesday, August 07, 2013
custody - relocation
S.J.S. v. M.J.S. – Superior Court –
August 7, 2013 (25 pp.)
Mother as primary caretaker – Mother viewed her primary caregiver role in a vacuum. As Mother acknowledged, she has had received considerable help from Father and from her stepmother, and readily conceded at trial that Father was a fit and caring parent, and capable of being primary custodian. Mother admitted that the children had a strong bond with Father and their families in Erie. Further, it is clear that Father has been a consistent and stable parental figure in the girls’ lives. Substantial testimony showed it was possible for them to remain in the Erie area and spare the children emotional turmoil, and, if this were the case, Mother would remain primary custodian..
Mother's relocation request Erie to
Bucks County denied.
The
Court rejected mother's argument that, because there was no existing court
order, the trial court should have made a custody determination
and then engaged in the relocation analysis, rather than, as here, combining
the considerations and rendering an order that awarded primary custody
contingent on Mother’s ultimate decision on where she would reside.
The Court disagreed with Mother’s claim that the trial court elevated
relocation over custody. It specifically stated that it placed no greater
emphasis on the relocation factors simply because they were analyzed first. “The
Court considers the § 5337(h) factors together with the broader best interests
of the children in mind in assessing which party shall be ordered primary
physical custodial and whether Mother’s request for relocation will be
permitted.” Under these circumstances, it is unrealistic to compartmentalize the
issues.
The trial court engaged in the proper analysis using both relocation
and custody factors, with the best interest standard as the guide. The court
may have concentrated on relocation factors, but this was because it recognized
that the custody arrangement was in dispute only in the event Mother chose to
relocate. The parties recognized this as well.
Burden of proof - Finally, as the party proposing relocation, Mother
bears the burden of proving relocation will serve the children’s best
interests. See 23 Pa.C.S.A. § 5337(i). Each party, however, has the burden of
establishing “the integrity of that party’s motives in either seeking the
relocation or seeking to prevent the relocation.” 23 Pa.C.S.A. 5337(i)(2). The
court did not err in placing the burden on Mother to show that relocation was
in the children’s best interests.
Benefits to children - The benefits to the children of Mother's
proposed move are not exclusive to that area and do not outweigh the
detrimental effect on Father’s time and relationship with the children.
Further, Mother did not meet her burden of establishing the integrity of her
reasons for leaving the current home area. As far as Father’s motives for
opposing relocation, the parties do not dispute that he sought only to preserve
his relationship with the children. He also sought to preserve the children’s
relationship with his and Mother’s extended families. The record bears this out
Mother as primary caretaker – Mother viewed her primary caregiver role in a vacuum. As Mother acknowledged, she has had received considerable help from Father and from her stepmother, and readily conceded at trial that Father was a fit and caring parent, and capable of being primary custodian. Mother admitted that the children had a strong bond with Father and their families in Erie. Further, it is clear that Father has been a consistent and stable parental figure in the girls’ lives. Substantial testimony showed it was possible for them to remain in the Erie area and spare the children emotional turmoil, and, if this were the case, Mother would remain primary custodian..
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