consumer - UTPCPL - non-resident plaintiff

Danganan, et al. v. Guardian Protection Services – Pa. S.Ct. – February 21, 2018

http://www.pacourts.us/assets/opinions/Supreme/out/Majority%20Opinion%20%20Questions%20Answered%20%2010343689633251610.pdf?cb=1

Non-resident plaintiff permitted to sue business headquartered in Pennsylvania, despite lack of nexus between this state and the transaction/injury in question. 

Plaintiff’s claims were brought exclusively under the Pa. consumer protection law, 73 P.S. 201-1, et seq., under which there is “no textual basis” for imposing any nexus requirement.  There are no residency or geographic restrictions in the statutory definitions of “person” or “trade and commerce.” 

In this case, a homeowner in Washinton, D.C., entered into a three-year contract with a Pennsylvania company for home security services.  Before the end of the contractual term, the homeowner moved to California and notified the company of his intent to cancel the contract.   When the company refused to honor the cancellation and continued to bill the homeowner, the latter sued in CCP Philadelphia.  The company moved to dismiss the case, claiming that non-Pennsylvania residents could only sue under UTPCPL if there was a sufficient nexus between the transaction/injury and the forum state (Pennsylvania), such that the improper conduct primarily and substantially occurred in Pennsylvania.  The Court rejected this position, as set out above.

contracts - statute of limitations - contract under seal

Driscoll v. Arena – Pa. Super.  – February 12, 2018  (2-1)

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Affirmed%20%2010342570932914664.pdf?cb=1

Held:  A contract which does not have “seal” or “L.S.” or other language to indicate that it was signed under seal is subject to the regular contract statute of limitation of four (4) years,  42 Pa. C.S. 55245(a)(8) and not the extended 20-years SOL for contracts under seal, 42 Pa. C.S. 55245(b)(1).

That result is not changed by the inclusion of a paragraph entitled “waiver” which includes the following language: ““Borrower intends this to be a sealed instrument and to be legally bound thereby.”

The court recognized that contracts under seal are a “vestige of the past.” 

Ed. note:  What the court did not say is that the seal practice is a trap for all but the very most sophisticated parties, and that virtually no one has the slightest idea of what “seal” means or does.   This seems like something that could be challenged in an appropriate case.  See, e.g., Investors Loan Corp.v. Perez, 74 D & C 2d149 (C.P.Adams 1975).

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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

debt collection - FDCPA - tine-barred debts - settlement offer "could" violated FDCPA

Tatis v. Allied Interstate, LLC – 3d Cir. – February 12, 2018

http://www2.ca3.uscourts.gov/opinarch/164022p.pdf

A collection letter sent to collect a time-barred debt that makes a “settlement offer” to accept payment “in settlement of” the debt may violate the FDCPA general prohibition against “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e.

The collection letter stated as follows: “[The creditor] is willing to accept payment in the amount of $128.99 in settlement of this debt. You can take advantage of this settlement offer if we receive payment of this amount or if you make another mutually acceptable payment arrangement within 40 days . . . .”

Huertas v. Galaxy Asset Management, 641 F.3d 28, 32–33 (3d Cir. 2011) (per curian) stands for the proposition that debt collectors do not violate 15 U.S.C. § 1692e(2)(A) when they seek voluntary repayment of stale debts, so long as they do not threaten or take legal action. But the FDCPA sweeps far more broadly than the specific provision found in § 1692e(2)(A). It prohibits “any false, deceptive, or misleading representation” associated with debt-collection practices. 15 U.S.C. § 1692e (emphasis added). Accordingly, this appeal requires us to decide whether collection letters may run afoul of the FDCPA by misleading or deceiving debtors into believing they have a legal obligation to repay time-barred debts even when the letters do not threaten legal action.

Since Huertas, three other United States Courts of Appeals have addressed the question presented in this appeal. All three have determined that, even absent threats of litigation, it is plausible that offers to “settle” time-barred debts could mislead the least-sophisticated debtor.  McMahon v. LVNV Funding, LLC, 744 F.3d 1010 (7th Cir. 2014);  Buchanan v. Northland Group, Inc. held that a settlement offer could “plausibly mislead an unsophisticated consumer into thinking her lender could enforce the debt in court.” 776 F.3d 393, 395 10 (6th Cir. 2015);  Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507, 513 (5th Cir. 2016).  The court was persuaded that these decisions offer the best interpretation of the FDCPA.

The court reiterated what it said in Huertas and elsewhere: standing alone, settlement offers and attempts to obtain voluntary repayments of stale debts do not necessarily constitute deceptive or misleading practices. See Huertas, 641 F.3d at 32–33; see also Campuzano-Burgos, 550 F.3d at 299 (noting that “[t]here is nothing improper about making a settlement offer”).   Nor did the court impose any specific mandates on the language debt collectors must use, such as requiring them to explicitly disclose that the statute of limitations has run. 

  The court did not, therefore, hold that the use of the word “settlement” is “misleading as a matter of federal law.” Buchanan, 776 F.3d at 400 (Kethledge, J., dissenting). Rather, in keeping with the text and purpose of the FDCPA, “we merely reiterate that any such letters, when read in their entirety, must not deceive or mislead the least-sophisticated debtor into believing that she has a legal obligation to pay the time-barred debt.”  See, e.g., Caprio, 709 F.3d at 149 (noting that “even the ‘least sophisticated debtor’ is expected to read any notice in its entirety”); Huertas, 641 F.3d at 33 (examining the specific language used in the letter from the perspective of the least-sophisticated debtor); Campuzano-Burgos, 550 F.3d at 300 (analyzing letters “as a whole”).

UC - willful misconduct - absences - illness

Klampfer v. UCBR -  Cmwlth. Court – 2-1-18 – unreported memorandum opinion**

http://www.pacourts.us/assets/opinions/Commonwealth/out/540CD17_2-1-18.pdf?cb=1

Claimant was terminated after she called off work four (4) times within two weeks of her return to work after undergoing open heart surgery and being on approved FMLA leave.   Claimant got a doctor’s note, stating that her absences were legitimate, but was unable to provide it until after she was terminated.   The ER policy stated that termination would result with 4 chargeable absences (anything other than a death in the family within a 90-day period.  ER policy did not specify a time limit on providing a doctor’s note, which would have resulted in collapsing the four absences into one.

Willful misconduct

The court held that, under the circumstances, claimant did not commit willful misconduct.

An employer seeking to prove willful misconduct by a policy violation must demonstrate the existence of the policy, its reasonableness, and its violation. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518 (Pa. Cmwlth. 1999). “The employer must also show that the employee intentionally or deliberately violated the work rule.” Chester Cmty. Charter Sch. v. Unemployment Comp. Bd. of Review, 138 A.3d 50, 54 (Pa. Cmwlth. 2016) (emphasis added). This Court “must determine if the work rule is reasonable in light of all the circumstances and whether [a claimant] had good cause to violate the work rule.” Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 703 A.2d 452, 459 (Pa. 1997).

Absence due to illness is not willful misconduct.

“[T]he law is clear that absence due to illness is not willful misconduct.” Green v. Unemployment Comp. Bd. of Review, 433 A.2d 587, 589 (Pa. Cmwlth. 1981) (reversing Board determination that claimant’s seven absences constituted willful misconduct when some absences related to sickness); see Tritex Sportwear, Inc. v. Unemployment Comp. Bd. of Review, 315 A.2d 322 (Pa. Cmwlth. 1974). When the violation of an employer’s absence policy is grounds for termination, and the policy makes no distinction between absences for illness and absences for other reasons, there is no willful misconduct based on the policy violation alone. Green.

In this case, as in Green,  there was “ no willfulness in Claimant’s violation of the Policy when she was absent four times within 90 days as a result of her illness. When a claimant violates a policy because of her illness, we do not ascribe deliberate disregard to her violation. See Phila. Parking Auth. v. Unemployment Comp. Bd. of Review, 1 A.3d 965 (Pa. Cmwlth. 2010) (inadvertent violation of employer’s rule does not constitute willful misconduct). While such absences may be a reason for discharge, they are not a reason for a denial of UC benefits. Runkle v. Unemployment Comp. Bd. of Review, 521 A.2d 530 (Pa. Cmwlth. 1987); Green.   The fact that the manager warned Claimant about potential discipline as a result of her absences without documentation does not alter this conclusion.

The application of the ER policy is this case was unreasonable. Phila. Parking Auth. v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 609 C.D. 2015, filed November 17, 2015), 2015 WL 7356313 (unreported) (holding employer unreasonably applied policy to claimant who had serious health condition).   “[A]pply[ing] its regular policy for employees who have called in sick, to an employee who has requested, certified, and received leave under the FMLA is not reasonable.” Id., slip op. at 9, 2015 WL 7356313, *5.

Good cause

The court went on to hold that, even though claimant’s actions did not constitute willful misconduct, it nevertheless recogniaed that a claimant with a document illness has goode cause  for non-compliance with an employer directive.

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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

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

admin.law - credibility - review by factfinder who did not hear/see the evidence

J.K. v. Dept. of Human Services – Cmwlth. Court – January 30, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/367CD17_1-30-18.pdf?cb=1

Generally, “[d]eterminations as to credibility and evidentiary weight will not be disturbed on appeal absent an abuse of discretion.” F.V.C. v. DPW, 987 A.2d 223, 228 (Pa. Cmwlth. 2010). When the factfinder does not observe the testimony that is the basis of the evidence, a more thorough review of credibility determinations is required. See McElwee v. SEPTA, 948 A.2d 762, 774 n.10 (Pa. 2008). In McElwee, the Supreme Court stated that, “[t]he need for an articulated, reasoned basis for rejecting such testimony seems especially pronounced where, as here, the trial court did not observe witness demeanor but, instead, merely reviewed the deposition transcripts and documentary exhibits.” Id. A factfinder’s credibility determinations cannot be arbitrary. Id. 

child abuse - credibility - child's testimony tainted

J.K. v. Dept. of Human Services – Cmwlth. Court – January 30, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/367CD17_1-30-18.pdf?cb=1

Finding of abuse reversed where

            * on remand, ALJ made opposite findings from his initial findinds, based on same record

            * child’s testimony was tainted

Initial decision appealed and remanded, because of change in standard of proof from clear+convincing to preponderance, G.V. v. DPW, 91 A.3d 667 (Pa. 2014, GV II).  On remand, the same ALJ did a complete about face (or volte face, as the Court stated), without  any “articulated, reasoned basis” for doing so.  The intial objections to the child’s testimony (vague, conclusory, lacking in precision, etc.) were not obviated by the application of a different standard of proof.

In addition, the court held that the evidence showed that the child was not competent to testify because her testimony was tainted. 

“Examples of relevant factors showing “some evidence” of taint, are as follows: (1) the age of the child; (2) the existence of a motive hostile to the defendant on the part of the child’s primary custodian; (3) the possibility that the child’s primary custodian is unusually likely to read abuse into normal interaction; (4) whether the child was subjected to repeated interviews by various adults in positions of authority; (5) whether an interested adult was present during the course of any interviews; and (6) the existence of independent evidence regarding the interview techniques employed. Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006) (citing Delbridge, 855 A.2d at 41). The list is not exhaustive; further, the party asserting taint need not satisfy each and every factor.... The uncontroverted and accepted evidence of record establishes that every factor is applicable to this case.

and that “the Child’s testimony was tainted.  A witness whose testimony has been deemed tainted must be dismissed as incompetent.”