Pa Constitution - right to reputation

In re 30^th County Investigating Grand Jury – Pa. Supreme Court – 10-24-24

https://www.pacourts.us/courts/supreme-court/court-opinions/

 

Individuals’ “inherent and indefeasible” right to their reputation is enshrined in the Pennsylvania Constitution. PA CONST. art 1, § 1 (“All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property 

and reputation, and of pursuing their own happiness.”). 

 

This Court has been clear that the right to reputation is not some lesser right but, rather, a fundamental constitutional entitlement on the same plane as the rights to life, liberty, and property. Fortieth I, 190 A.3d at 573 (citing Am. Future Sys., Inc. v. Better Business Bureau of Eastern Pa., 923 A.2d 389, 395 n.7 (Pa. 2007)). See also Driscoll v. Corbett ̧ 69 A.3d 197, 210 (Pa. 2013) (acknowledging the right to reputation as among the foundational freedoms); R. v. Commonwealth Dep’t of Public Welfare, 636 A.2d 142, 149 (Pa. 1994) (this Court regards the right to reputation “as a fundamental interest which cannot be abridged without compliance with constitutional standards of due process and equal protection.”) (citations omitted)).

 

Housing - sec. 8 - lying about income - theft by deception

Commonwealth v. Gaspard – Pa. Super. – 9-17-24 – reported, precedential

https://www.pacourts.us/assets/opinions/Superior/out/J-A12023-24o%20-%20106074904281363762.pdf?cb=1

 

Tenant convicted of theft by deception for lying about her income and thus receiving sec. 8 benefits.

 

The record confirms that Appellant intentionally withheld reporting a source of income to the Authority despite her signed certifications that she would report any changes in income from any source, and that the Authority relied on Appellant’s statements when awarding her Section 8 housing. See 18 Pa.C.S.A. § 3922(a)(1); McSloy, supra; Grife, supra. 

 

As the trial court observed, the Authority could not investigate whether Appellant had a net income from self-employment if it was not put on notice of that employment. . . .By failing to disclose her business income, Appellant prevented the Authority from acquiring information which might have affected her entitlement to Section 8 housing, and the Authority paid a housing benefit on Appellant’s behalf. See 18 Pa.C.S.A. § 3922. 

 

Thus, viewing the evidence in the light most favorable to the Commonwealth as the verdict-winner, the evidence was sufficient to sustain Appellant’s conviction for theft by deception. 

 

 

 

contracts - breach - fraud - gist of action doctrine

Kotarja v. Aberra – Pa.Superior – 4-16-24 – non-precedential ***

https://www.pacourts.us/assets/opinions/Superior/out/J-A03021-23m%20-%20106072503281132164.pdf?cb=1

 

 

Breach of contract

Three elements are necessary to plead properly a cause of action for breach of contract: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages. Additionally, it is axiomatic that a contract may be manifest orally, in writing, or as an inference from the acts and conduct of the parties. 

Burlington Coat Factory of Pennsylvania, LLC v. Grace Const. Mgmt. Co., LLC, 126 A.3d 1010, 1018 (Pa. Super. 2015) (internal citation, indentation, and brackets omitted). This Court has also provided: 

 

A written contract which is not for the sale of goods may be modified orally, even when the written contract provides that modifications may only be made in writing. An agreement that prohibits non-written modification may be modified by subsequent oral agreement if the parties’ conduct clearly shows the intent to waive the requirement that the amendments be made in writing. An oral contract modifying a prior written contract, however, must be proved by clear, precise and convincing evidence. 

Somerset Cmty. Hosp. v. Allan B. Mitchell & Associates, Inc., 685 A.2d 141, 146 (Pa. Super. 1996) (internal citations omitted). 

 

 

Fraudulent misrepresentation: 

In order to prove fraud[,] the following elements must be shown: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. 

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[I]n real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture. 

Milliken v. Jacono, 60 A.3d 133, 140 (Pa. Super. 2012) (en banc) (internal citations and indentation omitted). Under “common law fraud[,] a seller of real estate is only liable for failing to reveal objective material defects.” Id. at 141. 

 

Gist of the action doctrine

Generally, the gist of the action doctrine is “designed to maintain the conceptual distinction between breach of contract claims and tort claims . . .[and] precludes plaintiffs from re-casting ordinary breach of contract claims into a tort claim.” Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa. Super. 2010). As our Supreme Court held, following its thorough analysis, in Bruno v. Erie Ins. Co., the “nature of the duty alleged” is the “critical determinative factor in determining whether the claim is truly one in tort or for breach of contract.” 106 A.3d 48, 111-12 (Pa. 2014). Contractual duty is based in terms created between the contracting parties and involves “a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract.” Id. at 112. A duty based in tort, however, involves an individual’s broader social responsibility to others and exists regardless of the contract between the parties. See id. The factual allegations averred are of “paramount importance” in the analysis and determination; and, crucially, “the mere existence of a contract between two parties does not, ipso facto, classify a claim . . . for injury or loss suffered as the result of actions by the other party in performing the contract as one for breach of contract.” Id. at 112-114. A claim is predicated in tort where the contract “is regarded merely as the vehicle, or mechanism, which established the relationship between the parties.” Id. at 114. Further: 

In real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used Kotarja v. Aberra – Pa.Superior – 4-16-24 – non-precedential ***

https://www.pacourts.us/assets/opinions/Superior/out/J-A03021-23m%20-%20106072503281132164.pdf?cb=1

 

 

Breach of contract

Three elements are necessary to plead properly a cause of action for breach of contract: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages. Additionally, it is axiomatic that a contract may be manifest orally, in writing, or as an inference from the acts and conduct of the parties. 

Burlington Coat Factory of Pennsylvania, LLC v. Grace Const. Mgmt. Co., LLC, 126 A.3d 1010, 1018 (Pa. Super. 2015) (internal citation, indentation, and brackets omitted). This Court has also provided: 

 

A written contract which is not for the sale of goods may be modified orally, even when the written contract provides that modifications may only be made in writing. An agreement that prohibits non-written modification may be modified by subsequent oral agreement if the parties’ conduct clearly shows the intent to waive the requirement that the amendments be made in writing. An oral contract modifying a prior written contract, however, must be proved by clear, precise and convincing evidence. 

Somerset Cmty. Hosp. v. Allan B. Mitchell & Associates, Inc., 685 A.2d 141, 146 (Pa. Super. 1996) (internal citations omitted). 

 

 

Fraudulent misrepresentation: 

In order to prove fraud[,] the following elements must be shown: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. 

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[I]n real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture. 

Milliken v. Jacono, 60 A.3d 133, 140 (Pa. Super. 2012) (en banc) (internal citations and indentation omitted). Under “common law fraud[,] a seller of real estate is only liable for failing to reveal objective material defects.” Id. at 141. 

 

Gist of the action doctrine

Generally, the gist of the action doctrine is “designed to maintain the conceptual distinction between breach of contract claims and tort claims . . .[and] precludes plaintiffs from re-casting ordinary breach of contract claims into a tort claim.” Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa. Super. 2010). As our Supreme Court held, following its thorough analysis, in Bruno v. Erie Ins. Co., the “nature of the duty alleged” is the “critical determinative factor in determining whether the claim is truly one in tort or for breach of contract.” 106 A.3d 48, 111-12 (Pa. 2014). Contractual duty is based in terms created between the contracting parties and involves “a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract.” Id. at 112. A duty based in tort, however, involves an individual’s broader social responsibility to others and exists regardless of the contract between the parties. See id. The factual allegations averred are of “paramount importance” in the analysis and determination; and, crucially, “the mere existence of a contract between two parties does not, ipso facto, classify a claim . . . for injury or loss suffered as the result of actions by the other party in performing the contract as one for breach of contract.” Id. at 112-114. A claim is predicated in tort where the contract “is regarded merely as the vehicle, or mechanism, which established the relationship between the parties.” Id. at 114. Further: 

In real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or 

gesture.  Youndt v. First Nat’l Bank of Port Allegany, 868 A.2d 539, 545 (Pa. Super. 2005). 

 

Where misrepresentations induce a party to enter into a contract, this Court has held that the gist of the action is in tort, and the contract is collateral. See Mirizio, 4 A.3d at 1087; Knight, 81 A.3d at 951; Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 719 (Pa. Super. 2005). As 

 

Superior Court – citing non-precedential opinions

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

 

 

 

MDJ judgments - certiorari - timely filing of proof of service of appellee and MDJ

Thinkgrow Partners v. Parks – Pa. Super. – 8-26-24 – non-precedential ***

https://www.pacourts.us/assets/opinions/Superior/out/J-A09043-24m%20-%20106049081278758898.pdf?cb=1

 

Appellant filed writ of certiorari from MDJ decision giving appellee, property owner and judgment for possession in alleged landlord-tenant case. Appellant claimed that he was not a tenant but rather a purchases under a lease-purchase agreement, which is not subject to LT law and over which MDJ does not have jurisdiction.

 

It is undisputed that appellant timely served counsel for the property owner. Appellant also timely served MDJ using a form – apparently issued and approved by AOPC – which contained “only a section for proof of service” on the MDJ but with “no corresponding section for proof of service on the opposing party.” So appellant didn’t filed proof of service on owner’s counsel until after her case was dismissed for failure to comply with MDJ Rule 1011(c), which required proof of service within 5 days of service.

 

Superior Court affirmed the trial court’s dismissal of the certiorari action for failure to comply with MDJ Rule 1011 C, noting that it was a “particularly harsh” result, expecially given that locak of dispute that the owner’s counsel had been timely served.  Both courts also noted that a different result might have occurred if this were an appeal rather than certiorari. The Rules for appeals, MDJ Rule 1006, allow a court to reinstate an appeal, where there was an untimely proof of service, “upon good cause shown.” 

 

Both courts relied on the mandatory language of MDJ Rule 1011 © (certiorari “shall....be stricken”) with no saving language as with appeals, thus negating any discretion.

 

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***  Superior Court – citing non-precedential decisions

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

 

 

 

 

 

 

 

 

 

mailbox rule

 

Angels of Care v. DHS – Cmwlth. Court – 8-28-24 – reported, precedential

https://www.pacourts.us/assets/opinions/Commonwealth/out/390CD23_8-28-24.pdf?cb=1

 

Pursuant to what has commonly been termed the “mailbox rule,” where there is evidence that an agency mailed a notice to a provider’s last known address that is not returned as undeliverable, that evidence ordinarily will be sufficient to permit a factfinder to find that the notice was, in fact, received the party to whom it was addressed. Douglas v. Unemployment Compensation Board of Review, 151 A.3d 1188, 1191 (Pa. Cmwlth. 2016); Gaskins v. Unemployment Compensation Board of Review, 429 A.2d 138, 140 (Pa. Cmwlth. 1981). “[W]hen a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Pinnacle Health Hospitals v. Unemployment Compensation Board of Review, 210 A.3d 1127, 1132 (Pa. Cmwlth. 2019) (citation and quotation omitted). When such evidence is present, it will give rise to a presumption that the recipient of the notice received it. Douglas, 151 A.3d at 1191. To defeat the presumption, the recipient must come forward with evidence showing that the notice was not, in fact, received. Id; Pinnacle Health Hospitals, 210 A.3d at 1133. It is well settled that merely denying receipt of an agency determination is not sufficient to defeat the presumption. Id. at 1132; J.A. v. Department of Public Welfare, 873 A.2d 782, 786 (Pa. Cmwlth. 2005). 

 

evidence - authentication - screen shots of texts and emails

Walker v. Walker – Pa. Superior – 8-9-24 – reported, precedential

https://www.pacourts.us/assets/opinions/Superior/out/J-A09010-24o%20-%20106031657276969196.pdf?cb=1

 

In PFA contempt proceeding, court held that victim’s  testimony sufficiently authenticated screen shots of defendant’s texts and emails, which supported a finding of contempt, citing Pa. R. E. 901 (b)(11)(B).

 

 

 

default judgment - opening - citing meritorious preliminary objection

Lin v. Bernard – Pa. Super. – 8-12-24 – non-precedential***

 

https://www.pacourts.us/assets/opinions/Superior/out/J-A07028-23m%20-%20106033356277194969.pdf?cb=1

 

Pursuant to Pa. R.C.P. 237.3, a court “must grant a petition to open a default judgment where the petitioner attaches one or more preliminary objections.” In this contract case, the plaintiff didn’t plead whether the contract was oral or written, and if written, failed to attached the writing.

 

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*** Superior Court – citing non-precedential decisions

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

 

 

 

Home Improvement Consumer Protection Act - oral notice of cancellation is effective

Commonwealth v. Gillece Services - Cmwlth. Court - 7-3-24 - reported case

https://www.pacourts.us/assets/opinions/Commonwealth/out/861CD23(2)_7-3-24.pdf?cb=1

 

In a case of  first impression, the court held that a home improvement contractor must honor an oral  cancellation request from a customer. The written notice requirement under the UTP/Consumer Protection Law, 73 P.S. sec. 201-1 et seq.,  does not apply to the Home Improvement Consumer Protection Act, 73 P.S. sec. 517.1, et seq.

courts - appeals - cross-appeals - amended rules

Rules                          https://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20-%20106007790274421112.pdf?cb=1

 

Adoption report       https://www.pacourts.us/assets/opinions/Supreme/out/Report%20-%20106007790274421186.pdf?cb=1

civil procedure - delay - dismissal - actual prejudice

Osborne v. Boscov’s Inc. – Pa. Super. – 5.14.24 – unreported***

https://www.pacourts.us/assets/opinions/Superior/out/J-S03017-24m%20-%20105935293265951864.pdf?cb=1

 

Held: Trial court erred in dismissing a complaint, sua sponte, for lack of activity, without holding a hearing to determine if the defendant had suffered prejudice by the delay.

 

It is well settled that a court may invoke its inherent power to dismiss a case for lack of activity on the docket. See Penn Piping, Inc. v. Insurance Co. of North America, 603 A.2d 1006, 1008 (Pa. 1992), abrogated in part by Jacobs v. Halloran, 710 A.2d 1098, 1102 (Pa. 1998); see also Pa.R.J.A. 1901(a) (stating that “[w]here a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter”).

As this Court has explained, the decision to dismiss a case “rests within the discretion of the trial court and will not be disturbed on appeal unless there is proof of a manifest abuse of that discretion.” Mudd v. Nosker Lumber, Inc., 662 A.2d
660, 662 (Pa. Super. 1995) (citation omitted).

 

A trial court may dismiss a case for inactivity under the following
circumstances: 

 

(1) a party has shown lack of due diligence by failing to proceed with reasonable promptitude, 

 

(2) there is no compelling reason for the delay, and 

 

(3) the delay has caused actual prejudice to the adverse party. See Jacobs, 710 A.2d at 1103. 

 

Our Supreme Court has explained that prejudice is “any substantial diminution of a party’s ability to properly present its case at trial.” 

 

This determination is to be made by the trial court, whose decision will not be disturbed absent an abuse of
discretion. Id.

 

Although the trial court had the authority to terminate the case for inactivity, see Penn Piping, 603 A.2d at 1008, the trial court erred in doing so without determining whether “the delay . . . cause[d] actual prejudice to the defendant.” Shope, 710 A.2d at 1108.

 

In its opinion, the trial court found that Appellees were presumed to have suffered prejudice because the delay exceeded five years. . . ..  However, our Supreme Court has expressly rejected the presumption of prejudice as “inconsistent with the well-established notion that the adversary must suffer harm before a case is dismissed for lack of
prosecution.” See Jacobs, 710 A.2d at 1102 (abrogating in part Penn Piping). Further, there is nothing in the record to reflect that Appellees suffered prejudice as a result of the delay in this case 

 

Accordingly, we are constrained to reverse the order terminating this action and remand for further proceedings.
On remand, Osborne v. Boscov’s Inc. – Pa. Super. – 5.14.24 – unreported***

https://www.pacourts.us/assets/opinions/Superior/out/J-S03017-24m%20-%20105935293265951864.pdf?cb=1

 

Held: Trial court erred in dismissing a complaint, sua sponte, for lack of activity, without holding a hearing to determine if the defendant had suffered prejudice by the delay.

 

It is well settled that a court may invoke its inherent power to dismiss a case for lack of activity on the docket. See Penn Piping, Inc. v. Insurance Co. of North America, 603 A.2d 1006, 1008 (Pa. 1992), abrogated in part by Jacobs v. Halloran, 710 A.2d 1098, 1102 (Pa. 1998); see also Pa.R.J.A. 1901(a) (stating that “[w]here a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter”).

As this Court has explained, the decision to dismiss a case “rests within the discretion of the trial court and will not be disturbed on appeal unless there is proof of a manifest abuse of that discretion.” Mudd v. Nosker Lumber, Inc., 662 A.2d
660, 662 (Pa. Super. 1995) (citation omitted).

 

A trial court may dismiss a case for inactivity under the following
circumstances: 

 

(1) a party has shown lack of due diligence by failing to proceed with reasonable promptitude, 

 

(2) there is no compelling reason for the delay, and 

 

(3) the delay has caused actual prejudice to the adverse party. See Jacobs, 710 A.2d at 1103. 

 

Our Supreme Court has explained that prejudice is “any substantial diminution of a party’s ability to properly present its case at trial.” 

 

This determination is to be made by the trial court, whose decision will not be disturbed absent an abuse of
discretion. Id.

 

Although the trial court had the authority to terminate the case for inactivity, see Penn Piping, 603 A.2d at 1008, the trial court erred in doing so without determining whether “the delay . . . cause[d] actual prejudice to the defendant.” Shope, 710 A.2d at 1108.

 

In its opinion, the trial court found that Appellees were presumed to have suffered prejudice because the delay exceeded five years. . . ..  However, our Supreme Court has expressly rejected the presumption of prejudice as “inconsistent with the well-established notion that the adversary must suffer harm before a case is dismissed for lack of
prosecution.” See Jacobs, 710 A.2d at 1102 (abrogating in part Penn Piping). Further, there is nothing in the record to reflect that Appellees suffered prejudice as a result of the delay in this case 

 

Accordingly, we are constrained to reverse the order terminating this action and remand for further proceedings.
On remand, the trial court shall conduct a hearing to address the remainder of the three-part test, i.e., whether Appellees suffered actual prejudice due to the delay in activity. See Jacobs, 710 A.2d at 1103; Shope,
710 A.2d at 1108.

 

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Superior Court – unreported  opinions can be cited for persuasive value

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

 

 

 

admin. law - regulations

Marcellus Shale Coalition v. DEP – 292 A. 3d 921 (Pa. 2023)

 

Held:  The General Assembly intended to give DEP the authority to promulgate regulations about unconventional gas wells.

 

From the opinion:

 

The enabling statute “included the grant of authority by the General Assembly to the Agencies to promulgate” the regulations at issue.

 

"Commonwealth agencies have no inherent power to make law or otherwise bind the public or regulated entities. Rather, an administrative agency may do so only in the fashion authorized by the General Assembly[.]" Nw. Youth Servs., Inc. v. Commonwealth, Dep't of Pub. Welfare, 620 Pa. 140, 66 A.3d 301, 310 (2013).

Properly enacted regulations are as binding as statutes - The General Assembly typically authorizes an agency to wield legislative rulemaking powers "by way of recourse to procedures prescribed in the Commonwealth Documents Law, the Regulatory Review Act, and the Commonwealth Attorneys Act." Id.^[5] "These enactments comprise the core of Pennsylvania's scheme for notice-and-comment rulemaking by administrative agencies and legal and regulatory review by the Attorney General and the Independent Regulatory Review Commission[,]" id. at 305 n.2, and regulations promulgated under those circumstances represent "the product of an exercise of legislative power by an administrative agency, pursuant to a grant of legislative power by the legislative body, and [are] valid and as binding upon a court as a statute," Housing Authority of the County of Chester v. Pennsylvania State Civil Service Commission, 556 Pa. 621, 730 A.2d 935, 942 (1999), provided that the rule meets three requirements.

Guidance documents - Agencies also act in non-legislative capacities. The catch-all term for this branch of administrative law is "guidance documents." Nw. Youth Servs., 66 A.3d at 310. "These come in an abundance of formats with a diversity of names, including guidances, manuals, interpretive memoranda, staff instructions, policy statements, circulars, bulletins, advisories, press releases and others." Id. (internal quotation marks and citation omitted). These acts can serve to bind the public, too, because they dictate how the agency carries out its operations, but they lack the formal notice-and-comment procedures.  

Guidance documents are afforded "a lesser quantum of deference[.]" than legislative documents. The lesser degree of deference in the guidance documents domain is attributable to the fact that these rules "may not rest on legislatively-conferred rulemaking powers . . . [and] may depend `upon the willingness of a reviewing court to say that it in fact tracks the meaning of the statute it interprets.'"

Presumption of reasonableness - "Properly-enacted legislative rules enjoy a presumption of reasonableness and are accorded a particularly high measure of deference—often denominated Chevron[^[6]] deference—by reviewing courts." Nw. Youth Servs., 66 A.3d at 311. . . . Pennsylvania administrative law principles are rooted in federal precedents. Id. at 313 n.16 (noting that "Pennsylvania decisions in the administrative-law field are so closely grounded upon earlier federal cases"); see also Crown Castle NG E. LLC v. Pa. Pub. Util. Comm'n, 660 Pa. 674, 234 A.3d 665, 686 (2020) (Wecht, J., concurring)("In matters of agency deference, this Court historically has chosen (by volition rather than by command) to take its cues from federal law.") (citations omitted). As noted above, the term "Chevron deference" refers to the United States Supreme Court's seminal decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), which stated that federal law had "long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer[.]" Id. at 844, 104 S.Ct. 2778.

No lockstep with federal admin. law -- This Court has never declared that we follow federal agency law principles in lockstep. Agency issues appear in a dizzying array of contexts and "[a] pervading question in this field, of course, is how much deference is due in any given context." Harmon v. Unemployment Comp. Bd. of Rev., 652 Pa. 23, 207 A.3d 292, 308 (2019) (Saylor, C.J., concurring). Various Justices, including the author of this opinion, have expressed the view that our courts should, if not must, depart from federal law in some circumstances. Id. at 309 . . . .Our Crown Castle decision recognized that this Court has never expressly adopted the federal Chevron approach; instead, 929*929 we have said that Chevron "is indistinguishable from our own approach to agency interpretations of Commonwealth statutes." Crown Castle, 234 A.3d at 679 n.11 (quoting Seeton v. Pa. Game Comm'n, 594 Pa. 563, 937 A.2d 1028, 1037 n.12 (2007)). . . . .As a result, our analysis will draw on federal law for its persuasive value where appropriate.

 

 

 

 

 

 

 

UC - willful misconduct - COVID policy (2-1 decision)

Rivera v. UCBR – 2-20-24 – Cmwlth. Court – reported decision (2-1 decision)

https://www.pacourts.us/assets/opinions/Commonwealth/out/1487CD22_2-20-24.pdf?cb=1

 

Majority:

Claimant did not have good cause for violating an employer policy, which required employees to get vaccinated or self-test weekly, absent medical grounds or a sincerely-held religious belief regarding vaccination and testing. Claimant provided maintenance and service inside the apartments in an 80-unit elderly housing complex.

 

Dissent:

This case presents an example of the concerns that I articulated in my dissent in Brown v. UCBR, 276 A.3d 322, 333 (Pa. Cmwlth. 2022), wherein I explained that the citizens of this Commonwealth have a protected common law right to exercise autonomy over their medical treatment and asserting that legal right should not amount to willful misconduct or serve as the basis for denying one unemployment compensation benefits. 

As noted in my dissent in Brown, which I incorporate herein by reference, in Pennsylvania, courts have adopted the common law right to self-determination. Our Supreme Court has recognized this right and that it is the basis for the concept of informed consent. Shinal v. Toms, 162 A.3d 429, 452 (Pa. 2017) (“the right to be free from bodily invasion developed the doctrine of informed consent”). Specifically, and as also noted by the United States (U.S.) Supreme Court, “[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law.” Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251 (1891). In Cruzan by Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 269 (1990), then-Chief Justice Rehnquist stated that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.” 

 

 

 

 

 

UC - willful misconduct - violation of federally-mandated COVID policy

Bowen v. UCBR – Cmwlth. Court – 1-9-24 – reported  decision

https://www.pacourts.us/assets/opinions/Commonwealth/out/1103CD22_3-4-24.pdf?cb=2

 

Held: Claimant guilty of willful misconduct for failing to comply with ER’s reasonable vaccine policy – following federal mandate for federal contractors -- which required vaccination or medical or religious exemption.  Claimant did not get vaccinated or seek any exemption. Claimant claimed only that her unarticulated personal belief excused her conduct.

An employer must prove the existence of a work rule, the reasonableness of the rule, the claimant’s knowledge of the rule, and the claimant’s subsequent violation of the rule. Pierce-Boyce v. Unemployment Comp. Bd. of Rev., 289 A.3d 130, 135-136. (Pa. Cmwlth. 2022). 

“In determining reasonableness, this Court should consider whether application of the rule or policy under the circumstances is fair and just and appropriate to accomplish a legitimate interest of the employer.” Spirnak v. UCBR., 557 A.2d 451, 453 (Pa. Cmwlth. 1989); see also, e.g., Brown v. UCBR., 276 A.3d 322, 328-29 (Pa. Cmwlth. 2022) (finding employer’s flu vaccine policy fair and just where it allowed medical or religious exemptions but rejected a form document submitted by the claimant asserting the claimant’s right to not give consent). 

Claimant did not show good cause for non-compliance.- Once an employer establishes that an employee committed willful misconduct, the burden shifts to the employee to establish good cause for her actions. Woodring v. Unemployment Comp. Bd. of Rev., 284 A.3d 960, 964 (Pa. Cmwlth. 2022). “The employee can establish good cause where [her] actions are justified or reasonable under the circumstances.” Id. (internal quotations omitted). Whether good cause existed for an employee’s actions is evaluated considering all the attendant circumstances. Halloran v. Unemployment Comp. Bd. of Rev., 188 A.3d 592, 597 (Pa. Cmwlth. 2018). 

Once an employer establishes that an employee committed willful misconduct, the burden shifts to the employee to establish good cause for her actions. Woodring v. Unemployment Comp. Bd. of Rev., 284 A.3d 960, 964 (Pa. Cmwlth. 2022). “The employee can establish good cause where [her] actions are justified or reasonable under the circumstances.” Id. (internal quotations omitted). Whether good cause existed for an employee’s actions is evaluated considering all the attendant circumstances. Halloran v. UCBR, 188 A.3d 592, 597 (Pa. Cmwlth. 2018). 

An employee does not commit willful misconduct if her employer’s directive directly threatens the employee’s health or safety. Dougherty v. UCBR., 686 A.2d 53, 54 (Pa. Cmwlth. 1996). However, a claimant’s subjective beliefs alone do not establish good cause for failing to comply with an employer’s directive. Id. at 55. Here, the claimant had only a subjective belief about the safety and efficacy of the vaccine.

This summary also appears in the PLAN Legal Update, which can be accessed without a password.

 

 

 

 

LT - L's damages - abandonment v. eviction

1700 Market Street Associates v. Common Grounds

 

Pa.Super. - 4-1-24 - reported

 

https://www.pacourts.us/assets/opinions/Superior/out/J-A28029-23o%20-%20105884863260982536.pdf?cb=1

 

L cannot recover both rent and possession

This Court, almost 100 years ago, declared that a landlord cannot evict a tenant and then recover both the possession of the property and the rent for the balance of the term. See Greco v. Woodlawn Furniture Co., 99 Pa. Super. 290, 292 (1930). However, if the tenant abandons the property, the landlord is entitled to possession and accelerated rent:

The distinction must always be made between possession of vacated premises taken by the landlord merely to protect the property or minimize the damages that would follow the tenant’s abandonment, and a possession which would be adverse to any resumption of occupation by the tenant and thus amount to an eviction  Id.  

 

“[A] landlord must elect whether to confess judgment for possession and for all monies then due, or to confess judgment for all monies due for the entire term.” Homart Dev. Co. v. Sgrenci, 662 A.2d 1092, 1101 (Pa. Super. 1995) (en banc). “The landlord . . . cannot . . . enter judgment for possession and for all mon[ie]s which would otherwise be due as rents through the end of the term.” Id. Thus, [i]f the landlord terminates the lease and evicts the tenant before the acceleration clause is enforced, the landlord cannot recover rent for the post-eviction period. If the landlord collects accelerated rent and receives possession of the property by abandonment, the landlord may keep the accelerated rent, but is required to account to the tenant for rent received from a new tenant. Ferrick v. Bianchini, 69 A.3d 642, 656 (Pa. Super. 2013). The legal crux of this matter is whether Appellants evicted Appellees or whether Appellees abandoned the premises.

 

Proving abandonment

To establish abandonment of a lease, the landlord must prove: (1) an intention to abandon; and (2) conduct by which the intention is carried through. See Ferrick, 69 A.3d at 656. Conversely, an eviction is possession of a property by a landlord “which would be adverse to any resumption of occupation by the tenant.” Greco, 99 Pa. Super. at 292. Pennsylvania’s
Landlord Tenant Act, 68 P.S. §§ 250.101-250.602, was enacted in 1951 and “is a comprehensive regulatory scheme governing the landlord and tenant relationship. It sets up a procedure whereby a landlord may repossess [the]
premises if he has a right to evict the tenant.” Fraport Pittsburgh, Inc. v. Allegheny Cnty. Airport Auth., 296 A.3d 9, 19 (Pa. Super. 2023) (internal quotations and citations omitted). “It is intended that [the Landlord Tenant Act] shall furnish a complete and exclusive system in itself,” and repealed all inconsistent acts. 68 P.S. § 250.602.

Eviction procedure --  must comply with LT Act by filing complaint

To evict a tenant, landlords must comply with the procedure established in the Landlord Tenant Act. A complaint for possession must be filed in a municipal court or with the magistrate court, and “[i]f it appears that the complaint has been sufficiently proven, the [judge] shall enter judgment against the tenant that the real property be delivered up to the landlord.” 68 P.S. § 250.503(a)(1). Five days after judgment is entered, the landlord may request, and the judge shall issue, a writ of possession for the premises. See 68 P.S. § 250.503(b). “This writ is to be served within no later than forty-
eight hours and executed on the eleventh day following service upon the tenant of the leased premises.” Id.

 

Regardless of how Appellants want to characterize their actions, Appellees were legally evicted from the premises. Moreover, Appellants followed the procedure set forth in the confession of judgment clause of the Lease. Thus, the trial court did not err or abuse its discretion in finding that Appellees were evicted, and, therefore, Appellants are only entitled to damages for unpaid rent through July 1, 2022, when Appellants obtained possession of the property. Homart, supra; Ferrick, supra.