foreclosure - lockout of owner - damage to property - insurance -

Davis v. Wells Fargo Bank – 3d Cir. – May  27, 2016

http://www2.ca3.uscourts.gov/opinarch/152658p.pdf

In this federal follow-up to a foreclosure case, Michael Earl Davis is pursuing a variety of claims against an entity 3 that he calls “Wells Fargo U.S. Bank National Association as Trustee for the Structured Asset Investment Loan Trust, 2005-11.” It is the purported holder of Davis’s mortgage, and we will refer to it as “Wells Fargo” or “the bank.”1 Davis has also sued Assurant, Inc., believing it to be the provider of insurance on his home. His claims against both Wells Fargo and Assurant arise from damage that occurred to his house after Wells Fargo had locked him out of it, damage that went unrepaired and worsened into severe structural problems.

The United States District Court for the Eastern District of Pennsylvania dismissed Davis’s claims against Wells Fargo, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds that claim preclusion and a statute of limitations barred recovery. We will affirm that portion of the District Court’s order.

The District Court also dismissed all of Davis’s claims against Assurant, pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction. The Court reasoned that Davis lacked standing to bring those claims because he sued the wrong corporate entity, namely Assurant, when he should have sued Assurant’s wholly-owned subsidiary, American Security Insurance Company (“ASIC”). That conclusion about standing was in error.

Standing is indeed a jurisdictional predicate, but, rightly understood, this case is not about standing at all.   An analysis of standing generally focuses on whether the plaintiff is the right party to bring particular claims, not on whether the plaintiff has sued the right party. The latter question goes not to standing and jurisdiction but to the merits of the claims themselves. Therefore, the District Court erred in considering the claims against Assurant under Rule 12(b)(1) rather than Rule 12(b)(6). That difference has important consequences here. In the end, the difference between those rules of procedure dictates that we vacate that portion of the District Court’s order dismissing Davis’s breach of contract claim against Assurant and remand for further proceedings.

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disability - ADA - charging admission for personal care attendants of disabled persons

Anderson et al. v. The Franklin Institute – E.D. Pa. – May 6, 2016

https://www.paed.uscourts.gov/documents/opinions/16D0367P.pdf

Held:  FI’s policy of charging separate admission fees for the government-funded personal care attendants (PCA) of people with disabilities violated the Americans with Disabilities Act, 42 USC 12181 et seq., and corresponding regulations, 28 CFR 36.101 et seq.  FI’s policy effectively doubled the cost of admission for the class of disabled persons who need PCAs to help with aspects of daily living.

In 1990, Congress enacted the ADA “to remedy widespread discrimination against disabled individuals. In studying the need for such legislation, Congress found that ‘historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.’ ” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674–75 (2001). 11 Title III of the ADA and its implementing regulations prohibit “public accommodations,” including museums, theaters, stadiums, and other places “of exhibit entertainment,” from discriminating against people with disabilities. 42 U.S.C. § 12181(7)(C)&(H). Specifically, “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a).

Discrimination under the ADA includes failure to afford an individual or class of individuals the equal opportunity to participate in or benefit from a good, service, or facility as able-bodied individuals on the basis of disability. 42 U.S.C. § 12182(b)(1)(A)(ii); see generally 42 U.S.C. § 12101. An entity can also be held liable for ADA discrimination for failing to reasonably modify its policies and practices to accommodate individuals with disabilities absent proof “that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii). In addition, a “public accommodation may not impose a surcharge on [disabled persons] to cover the costs of measures, such as the provision of auxiliary aids, barrier removal, alternatives to barrier removal, and reasonable modifications in policies, practices, or procedures, that are required to provide [those individuals] with the nondiscriminatory treatment required by the Act or this part.” 28 C.F.R. § 36.301(c).

The above statutory requirements and definitions have been condensed by the case law into a three part test: “[t]o state a claim of disability discrimination under Title III of the ADA, a plaintiff must show (1) discrimination on the basis of a disability; (2) in the full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation; (3) by the public accommodation's owner, lessor or operator.” See, e.g., Harty v. Burlington Coat Factory of Pennsylvania, L.L.C., No. 11-01923, 2011 WL 2415169, at *9 (E.D. Pa. June 16, 2011) (internal citations omitted); Dempsey v. Pistol Pete's Beef N Beer, LLC, No. 08-5454, 2009 WL 3584597, at *3 (D.N.J. Oct. 26, 2009).   The court held that that plaintiffs satisfied this test, concentrating its analysis on part two: the right to full and equal enjoyment of goods and services.

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UC - willful misconduct - rule violation - good cause for non-compliance - circumstances

Bell v. UCBR – Cmwlth. Court – April 26, 2016 – unpublished memorandum opinion*

http://www.pacourts.us/assets/opinions/Commonwealth/out/1324CD15_4-26-16.pdf?cb=1

“The fact that the claimant knew the employer rules and did not strictly comply with it does not necessarily require a finding of willful misconduct.”  Circumstances may provide good cause for lack of compliance.

In this case, claimant had a very minor accident (knocked over a mailbox).  Employer rules required the immediate reporting of accidents.  Claimant didnt report until he returned to the office.  Circumstances included that: the accident was very minor; claimant’s cell phone did not work, nor did his partner’s; his partner, who was senior to him, advised that it was ok not to report until returning to the office; claimant reported immediately upon return to the office.

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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