bankruptcy - students loan

Sperazza v. Univ. of Maryland - ED Pa. - March 24, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0345P.pdf

The district court affirmed the bankruptcy court's denial of appellant's request to discharge his student loans. The facts are not sympatheric, but the case has a short, clear discussion of the issues, as follows:

The Bankruptcy Code does not allow a Chapter 7 debtor to discharge educational loans “unless excepting such debt from discharge . . . will impose an undue hardship on the debtor and the debtor’s dependents.” 11 U.S.C. § 523(a).

In order to establish undue hardship, a debtor must demonstrate that: (1) based on his current income and expenses, he cannot maintain a minimal standard of living for himself and his dependents if forced to repay the loans; (2) additional circumstances indicate that the debtor’s status is likely to persist for a significant portion of the loan repayment period; and (3) the debtor has made good faith efforts to repay the loans. Pa. Higher Educ. Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 304-05 (3d Cir. 1995) (adopting standard set forth in Brunner v. N.Y. State Higher Educ. Servs. Corp. (In re Brunner), 831 F.2d 395, 396 (2d Cir. 1987)).

It is the debtor’s burden to establish each prong of the Faish test by a preponderance of the evidence, all prongs must be satisfied, and if “one of the elements of the test is not proven, the inquiry must end there, and the student loans cannot be discharged.” Brightful v. Pa. Higher Educ. Assistance Agency (In re Brightful), 267 F.3d 324, 327-28 (3d Cir. 2001).

This “test must be strictly construed,” and “equitable concerns or other extraneous factors not contemplated by the test may not be imported into the analysis.” Id. at 328. Strict application of the Faish factors “safeguards the financial integrity of the student loan program by not permitting debtors who have obtained the substantial benefits of an education funded by taxpayer dollars to dismiss their obligations merely because repayment of the borrowed funds would require some major personal and financial sacrifices.” Id.

state appellate procedure - interlocutory appeal - PRAP 341

Druot et al. v. Coulter et al. - Superior Court - March 26, 2008

http://www.courts.state.pa.us/OpPosting/Superior/out/m02001_08.pdf

Plaintiffs' appeal of order granting summary to defendants on all counts of plaintiffs' complaint was not a final, appealable order under P.R.A.P. 341 http://www.pacode.com/secure/data/210/chapter3/s341.html where the trial court order did not dispose of any of the defendants' counterclaims.

Where an order determines "fewer than all of the claims" in the case, PRAP Rule 341(c) allows an interlocutory appeal "only upon an express determination that an immediate appeal would facilitate resolution of the entire case."

SSA - immune system disorders - revised medical criteria for evaluation

Revised Medical Criteria for Evaluating Immune System Disorders - effective June 16, 2008

http://a257.g.akamaitech.net/7/257/2422/01jan20081800/edocket.access.gpo.gov/2008/pdf/E8-5023.pdf

SSA - HIV - proposed regs for evaluating

http://a257.g.akamaitech.net/7/257/2422/01jan20081800/edocket.access.gpo.gov/2008/pdf/E8-5022.pdf

UC - voluntary quit - same-sex couple

Procito v. UCBR - Commonwealth Court - March 17, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/2402CD06_3-17-08.pdf

The majority held that the claimant, a partner in a same-sex relationship, "failed to meet her burden to prove that she terminated her job for a necessitous and compelling cause....As a consequence,....the Court need not address any constitutional issues that [claimant] raised inasmuch as this case certainly can be decided on non-constitutional grounds." The majority clearly wanted to side-step the issue of whether the follow-the-spouse doctrine could be applied to a same-sex couple.

One concurring judge (Pelligrini) agreed that "there is no evidence that Claimant's domestic situation caused her to leave her employment and relocate....All evidence indicates that her domestic partner moved....to be with her son in college because she wanted to, not because they heed to. This is clearly a personal choice and not a domestic reason that constitutes a necessitous and compelling reason to justify the award of benefits.

Another concurring judge (Leavitt) felt that under Wallace v. UCBR, 393 A.2d 43 (Pa. Cmwlth. 1978), the Court was "free to change [the follow-the-spouse] doctrine to include couples that are unmarried, whether by choice or compulsion" but that the General Assembly and not judges should make "the hard policy decisions on eligibility." She believes that Wallace was wrongly decided.

Judge Friedman dissented, noting first that while saying that the follow-the-spouse doctrine did not apply to unmarried couples, the majority actually applied it in this case in finding that the claimant failed to proved good cause in moving to another state to be with her partner. In addition, she would hold there was a "clear violation of Claimant's due process rights" by the referee's refusal to hear evidence about claimant's good cause to leave her job, thus denying her a "full and fair opportunity to be heard on the matter." (emphasis in original). She felt that the "UCBR's failure to apply the 'following spouse doctrine' because Claimant is not married to her domestic partner violates Claimant's equal protection rights," citing Wallace.

contracts- duty of good faith & fair dealing - no separate cause of action

Morgan Truck Body v. Integrated Logistics Solutions - ED Pa. - March 20, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0320P.pdf

Although the UCC, 13 Pa. C.S. 1203, and common law, as reflected in the Restatement of Contracts, sec. 205, impose a duty of good faith and fair dealing in the performance of a contract, Creeger Brick & Building Supply Inc. v. Mid-State Bank & Trust Co., 560 A.2d 151, 153 (Pa. Super. 1989), "Pennsylvania does not recognize this theory as an independent cause of action."

federal courts - interlocutory appeals

Photomedex, Inc. v. St. Paul Fire & Marine Ins. Co. - ED Pa. - March, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0321P.pdf

Federal courts have discretion to certify an issue for immediate appeal under 28 U.S.C. § 1292(b), when the court issues a non-final order and certifies that
a) the order involves a controlling question of law
b) as to which there is substantial ground for difference of opinion,
c) and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.

The court must certify that all three factors are met. Even then, the district court should exercise its discretion to certify only in exceptional cases. The Third Circuit has held that the certification procedure is not mandatory; permission to appeal is wholly within the discretion of the courts, even if the § 1292(b)] criteria are present.

In this case, the defendant failed to show a “substantial ground for difference of opinion” under the second element. A substantial ground for difference of opinion “refers to the legal standard applied in the decision for which certification is sought and whether other courts have substantially differed in applying that standard.”

contracts - implied-in fact

Morgan Truck Body v. Integrated Logistics Solutions - ED Pa. - March 20, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0320P.pdf

Under Pennsylvania law, “an implied-in-fact contract is a true contract arising from mutual agreement and intent to promise, but where the agreement and promise have not been verbally expressed. The agreement is inferred from the conduct of the parties."

"Contracts are often spoken of as express or implied. The distinction involves, however, no difference in legal effect, but lies merely in the mode of manifesting assent. Just as assent may be manifested by words or other conduct, sometimes including silence, so intention to make a promise may be manifested in language or by implication from other circumstances, including course of dealing or usage of trade or course of performance. Restatement (Second) of Contracts § 4 cmt. a; see also Rissi v. Cappella, 918 A.2d 131, 140 (Pa. Super. 2007)

"When parties continue to conduct business following the expiration of their written agreement, the law may recognize their relationship as an 'implied-in-fact' contract."

attorney fees - civil rights - sec. 1988 - "prevailing party"

People Against Police Violence v. City of Pittsburgh - 3d Cir. - March 17, 2008

http://www.ca3.uscourts.gov/opinarch/064457p.pdf

Plaintiffs were the "prevailing party" under 42 USC sec. 1988 where they achieved relief on the merits of their claims in the form of a preliminary injunction, which was dissolved only after the defendant city passed a new ordinance, even though the case was dismissed by agreement of all parties without a final judgment in favor of plaintiffs. The City never pressed the court to reach a judgment on the merits and eventually acceded to all of plaintiffs' claims.

This decision is in line with that of "nearly every Court of Appeals to have the addressed the issue." The great majority of the courts have held that "relief obtained via a preliminary injunction can, under appropriate circumstances, render a party 'prevailing.'" Such circumstances existed here, where "(1) the trial court, based upon a finding of a likelihood of plaintiffs’ success on the merits, entered a judicially enforceable order granting plaintiffs virtually all the relief they sought, thereby materially altering the legal relationship between the parties; (2) the defendant, after opposing interim relief, chose not to appeal from that order and remained subject to its restrictions for a period of over two years; and (3) the defendant ultimately avoided final resolution of the merits of plaintiffs’ case by enacting new legislation giving plaintiffs virtually all of the relief sought in the complaint." The final resolution of the case involved the required "judicial imprimatur" required by Supreme Court precedent.

"At the end of the proceedings, plaintiffs had achieved precisely what they sought on an enduring basis, and that success was a result of plaintiffs’ efforts and court-enforced victories rather than defendant’s voluntary actions."

consumer - fraud - parol evidence - pleading

Jeffries v. Ameriquest Mortgage Co. - ED Pa. - February, 2008

http://www.paed.uscourts.gov/documents/opinions/08d0166p.pdf

Defendant's motion for summary judgment was denied on virtually all of plaintiff's claims in this "predatory lending lawsuit," because in each instance, there was found to be a genuine issue of material fact. Plaintiff's claims included negligence, fraud, TILA, HOEPA, RESPA, Pa. Fair Credit Extension Uniformity Act, and UTPCPL.

The opinion discusses both a) the problems raised by the Toy case, 928 A.2d 186 (Pa. 2007) concerning parol evidence, and b) the pleading requirements under the state CPL, 73 P.S. 201-1 et seq.

fraud, parol evidence, and Toy
The court held that under Toy, plaintiff would have to prove that she had justifiably relied on defendant's representations. "Jefferies argues that she alleges fraud in the execution, meaning that evidence of the oral statements can be properly introduced to show justifiable reliance." Fraud in the execution "is at issue where 'a party alleges that he was mistaken as to the terms and the actual contents of the agreement he executed due to the other’s fraud.' Toy, 928 A.2d at 205. For fraud in the inducement, 'a party alleges that he was induced into entering the agreement through the other’s fraud.' Id." The defendant did not address the issue and thus did not meet its burden of showing there was no genuine issue of material fact.

The court noted that '[u]nder the fraud exception to the parol evidence rule, 'parol evidence may be introduced to vary a writing meant to be the parties’ entire contract[] when a party avers that the contract is ambiguous or that a term was omitted from the contract because of fraud, accident or mistake.' Toy, 928 A.2d at 204. The [Pennsylvania Supreme Court] has only applied this exception to allegations of fraud in the execution, not to allegations of fraud in the inducement. Id. at 204-05. Thus, 'when fraud in the execution is alleged, representations made prior to contract formation are not considered superseded and disclaimed by a fully integrated written agreement, as they are when fraud in the inducement is asserted.' ” Id. at 206-07.

UPTCPL - justifiable reliance
Toy et al. hold that a plaintiff alleging violations of the CPL "must prove justifiable reliance, which is an element of common law fraud....Thus, to avoid summary judgment, [plaintiff] must be able to show that there is a genuine issue as to whether she justifiabily relied on the oral statements. In n. 33, the court reviews the issue of fraudulent v. deceptive and the amendment to the CPL, ending with the holding in Toy.

attorney fees - civil rights - 42 USC 198

Enright v. Springfield School District - ED Pa. - March 13, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0293P.pdf

There is nothing very remarkable about this case, but it does review some relevant case law on sec . 1988 attorney fees and shows the kind of scrutiny that a fee petition might expect to get.

U.S. Supreme Court - highlights of 2006-2007 term

http://straylight.law.cornell.edu/supct/07highlts.html

consumer - warranty - reduction - limitation of action/time to sue - time of agreement

Hrycay v. Monaco Coach Co. - ED Pa. - March 7, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0272P.pdf

Plaintiffs bought a motor home on July 7, 2005, but did not take delivery/possession until July 15th, at which time they received a copy of a 12-month Limited Warranty, which required them to bring an enforcement action within 90 days after the expiration of the warranty. Plaintiffs allege that on July 7th, they were told only that the warranty was for 12 months, but nothing about about the further limitation about when they had to sue.

They had a lot of problems with the motor home, including an extended period in the shop and brought suit in May 2007 for breach of warranty, the Pennsylvania UTPCPL, 73 P.S. 201-1 et seq., and the Magnuson-Moss Warranty Improvement Act, 15 USC 2301.

Defendant/seller moved for summary judgment, arguing that plaintiffs had 15 months from the date of purchase to bring suit, i.e., on or before October 15, 2006. Plaintiffs argued that there was no "agreement" under UCC 2-725(a) to limit the period in which to bring a warranty claim, since they were not furnished with a copy of the limitation clause until after the date of purchase, July 7, 2005.

"Generally, the statute of limitations for breach of warranty claims is four years, 13 Pa. C.S. 2725(a). However, the UCC permits the statutory period to be reduced upon agreement of the parties to a period not less than one year. Id. Thus, the question before the Court is whether the parties reduced the limitations period by their original agreement. The UCC defines 'agreement” as “[t]he bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance as provided in this title.' 13 Pa. C.S. § 1201"

The court denied defendant's motion for summary judgment, holding that plaintiffs "presented enough evidence to constitute a genuine issue of material fact as to whether an 'agreement' existed between the parties to effectively reduce the statute of limitations from four years to one year and three months. The [plaintiffs] allege that there was no bargaining as to the terms of the warranty because they were completely unaware of the reduction in limitations clause [at the time they entered into the contract - July 7th] and were only given a copy of it after the date of sale [on the date of delivery]. If these allegations prove true, a reasonable jury could find that there was no bargain, and thus no agreement between the parties, which is required under the UCC to reduce the limitations period. Under these circumstances, the evidence presents a sufficient disagreement to require submission to the jury.

consumer - Health Club Act - excessive initiation fees - class certified

Allen v. Holiday Universal et al. - ED Pa. - March 11, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0283P.pdf

The court certified the class in this case, whose "upshot...is that the Health Clubs violated Section 2165 of the HCA [73 P.S. 2161 et seq.] by charging grossly excessive initiation fees. Section 2165 provides, in relevant part, that the amount of any initiation fees imposed by a health club shall be reasonably related to the club’s costs for establishing the initial membership[, and] shall not be imposed for the purpose of circumventing the requirements of this act."

custody - effect of pornography - expert witness

A.J.B. v. M.P.B. - Superior Court - March 12, 2008

http://www.courts.state.pa.us/OpPosting/Superior/out/a02037_08.pdf

attorney fees - EAJA - payment to plaintiff v. payment to counsel

Vongphady v. Astrue - ED Pa. - March 11, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0280P.pdf

The language of the EAJA dictates that attorney fees are to be awarded to the plaintiff and not plaintiff's counsel. This conclusion is supported by Congressional intent and case law from the Third, Eight, Tenth, and Federal Circuits.

Sixth Circuit decisions that attorney fees under EAJA are awarded for the benefit of the party, but are not for the party to keep and can be directly awarded to the attorney, are inconsistent with the language of the statute. Unlike attorney fees paid pursuant to 42 U.S.C. § 406(b) that are paid directly to the attorney out of the plaintiff’s social security benefits, the fees paid pursuant to EAJA are a punishment to the government for taking a position that was not substantially justified and are paid out of the Social Security Administration’s funds to the plaintiff. See, e.g., Phillips v. GSA, 924 F.2d 1577, 1582 (Fed.Cir. 1991) (Attorney fees awarded pursuant to EAJA must be awarded to the prevailing party, not the attorney, and if they were awarded, the plaintiff had an obligation to turn them over to the attorney.)

support - arrears - attachment - monetary award - "net proceeds" - 23 Pa. C.S. 4308.1

Faust v. Walker - Superior Court - March 11, 2008

http://www.courts.state.pa.us/OpPosting/Superior/out/s03032_08.pdf

Support defendant, who had $12,000 support arrearage, settled personal injury case for $10,000. Trial court order of attachment of $1,800.93 was correct under the applicable statute, 23 Pa. C.S. 4308.1, which defines “net proceeds.”

contracts - fraud - parol evidence - integration clause

Bray v. Dewese - ED Pa. - March 6, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0263P.pdf

When plaintiff sued on a promissory note, defendant counterclaimed for fraudulent inducement and common law fraud concerning alleged misrepresentations about the financial health of a company in which defendant then bought shares.

The court held that the parol evidence rules bars admission of evidence in support of defendant's claim that plaintiff misrepresented or omitted certain facts during pre-contract discussions. The counterclaim did not contain any specific allegations about any facts that plaintiff allegedly misrepresented in the contract, which contained an integration clause stating that it was the entire agreement, and that there were no representations, warranties or covenants except as set forth in the agreement.

The court cited Dayhoff, Inc. v. H.J Heinz Co., 86 F.3d 1287, 1300 (3d Cir. 1996), and Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 206 (Pa. 2007), as setting forth the applicable rule in Pennsylvania that "the parol evidence rule bars consideration of prior representations concerning matters covered in a written contract, even those alleged to have been made fraudulently, unless the representations were fraudulently omitted from the contract." (emphasis in original). Defendant did not claim any such fraudulent omission. "Accordingly, since the Agreement contains an integration clause, Defendant may not offer evidence of Plaintiff's prior misrepresentations and omissions to prove his fraud counterclaims, and Plaintiff's motion to dismiss will be granted."

In n. 6, the court contrasts the Pennsylvania rule with the "general rule, adopted in most jurisdictions,...that fraud is an exception to the parol evidence rule. See 11 Williston on Contracts § 33:14 (4th ed.) (The parol evidence rule “permits the admission of facts that negate mutuality of assent, such as duress or fraud”); Parol-evidence rule; Right to show fraud in inducement or execution of written contract, 56 A.L.R. 13 (“It is a general rule, supported by many decisions, that as fraud vitiates any contract or transaction into which it enters, the doctrine that parol or extrinsic evidence is inadmissible to contradict, vary, or explain the terms of a written contract is inapplicable where the issue is whether the contract was procured by fraud.”). However, the Pennsylvania Supreme Court noted in Toy that 'while the fraud exception to the parol evidence rule potentially applies in two scenarios – fraud in the inducement, where a party alleges that he was induced into entering the agreement through the other’s fraud, and fraud in the execution, where a party alleges that he was mistaken as to the terms and the actual contents of the agreement he executed due to the other’s fraud – this Court has determined that in Pennsylvania, only fraud in the execution ... is excepted from the parol evidence rule’s operation.' Toy, 928 A.2d at 206. Compare, Mellon Bank Corp. v. First Union Real Estate, 951 F.2d 1399, 1408 (3d Cir. 1991), a pre-Toy case.

debt collection - FDCPA - verification of complaint by counsel - Pa. RCP 1024(c)

Phath v. Watson - ED Pa. - March 7, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0266P.pdf

Plaintiff, a former university student, sued the attorney who represented plaintiff's university in a state court suit for a tuition debt. Plaintiff alleged that the attorney violated the Fair Debt Collection Practices Act, 15 USC sec. 1692 et seq. by verifying a complaint as to which he had no personal knowledge and without complying with Pa. R.C.P. 1024(c), which requires a non-party verifier to "set forth the person's information as to matters not stated upon his knowledge and the reason why the verification is not made by a party." http://www.pacode.com/secure/data/231/chapter1000/chap1000toc.html#1024.

The attorney verified the state court complaint upon "knowledge, information and belief" but did not include the statements required by the Rule 1024(c). Plaintiff claimed that this made his verification false, deceptive and misleading, and rendered his actions unfair and unconscionable, by creating a false impression as to the source, authorization or approval of the state court complaint.

The court rejected defendant's argument that the FDCPA does not apply to litigation activities, including formal pleadings by attorneys, citing Heintz v. Jenkins, 514 U.S. 291, 294 (1995) and Piper v. Pornoff Law Assoc., 396 F.3d 227 (3d Cir. 2005), but granted his motion to dismiss, because the state rule allowed the attorney to verify the complaint on "information and belief" - a phrase the court said that plaintiff was trying to read out of the rule. The attorney's failure to follow Rule 1024(c) "to the letter" was held to not be deceptive, since the attorney's statement could reasonably have only one meaning.

The court also held that the verification did not create a false impression as to source, authorization or aapproval. Even though the verification did not strictly comport with the language of the rule, "this procedural error does not create a false impression....Moreover, this error if one that courts in Pennsylvania hold to be de minimis. Monroe Contract Corp v. Harrison Square, Inc., 405 A.2d 954, 958 (Pa. Super. 1979).

mortage foreclosure - forbearance agreement - statute of frauds

Strausser v. PRAMCO - Superior Court - March 3, 2008

http://www.courts.state.pa.us/OpPosting/Superior/out/s67045_07.pdf

An agreement to forbear from foreclosure represents an interest in land, such that the agreement is subject to the statute of frauds and must be in writing, signed by the party to be charged and sufficiently indicating the terms of the oral agreement so that there is no serious possibility of consummating fraud by its enforcement.

multiple documents - The writing requirement of the statute of frauds can be satisfied by an amalgam of several documents, any number of which can be taken together to make out the necessary written terms of the bargain, provided there is sufficient connection made out between the papers, without the aid of parol evidence, further than to identify papers to which reference is made, but not to supply a material term of the contract.

part performance - Payment and acceptance of regular monthly payments does not constitute part performance and does not take the alleged agreement out of the purview of the statute of frauds. The relevant "case law is very explicit as to the requirements which must be met to take an oral contract for real estate out of the statute. The terms of the contract must be shown by full, complete, and satisfactory proof. The evidence must...show performance or part performance...which could not be compensated in damages, and such as would make rescission inequitable and unjust....Appellant has not cited any case involving a contract to forbear foreclosure that was taken out of the statute of frauds by part performance and we are aware of none....The part performance advanced here by appellant, monthly payments of $300, is compensable in damages. We see no merit here."

promissory estoppel - The doctrine of estoppel cannot be invoked against the operation of the Statute of Frauds. Borrello v. Lauletta, 455 Pa. 350, 317 A.2d 254 (1974); Target Sportswear, Inc. v. Clearfield Foundation, 474 A.2d 1142 (Pa.Super. 1984).

support - modification - retroactive award - concealment of income

Krebs v. Krebs - Superior Court - March 5, 2008

http://www.courts.state.pa.us/OpPosting/Superior/out/a01020_08.pdf
The trial court should have awarded support for period prior to custodial parent's petition to modify, back to time when non-custodial parent first began to actively conceal the substantial increases in his income.

Under 23 Pa. C.S. sec. 4352(e) - "modification may be applied to an earlier period if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition."

Moreover, 23 Pa. C.S. sec. 4353 requires a party to a DR proceeding to report material changes in in her/his circumstances.

The custodial parent had no duty to ask for an earlier review of the support order, without then having any knowledge of the other party's change of circumstances or misrepresentation.

consumer - motor vehicle salespersons - licensing - false statements about financing

Howard v. State Board of Vehicle Salespersons - Commonwealth Court - February 29, 2008 -- unreported

http://www.courts.state.pa.us/OpPosting/CWealth/out/1027CD07_2-29-08.pdf

The court upheld the revocation of the license of a motor vehicle salesperson, who had pleaded guilty to several crimes related to the sales of motor vehicles. The Board charged him with violating Section 19 of the Board of Vehicles Act, 63 P.S. sec. 818.19, which prohibits

a) making any substantial misrepresentation of material facts.
b) making any false promise of a character likely to influence, persuade or induce the sale of a vehicle.
c) having within five years prior to the application for or issuance of a license or while his current license is in force pleaded guilty . . . in a court of competent jurisdiction in this or any other state or Federal jurisdiction of forgery, embezzlement, obtaining money under false pretenses, extortion, conspiracy to defraud, bribery, odometer tampering or any other crime involving moral turpitude;
d) having failed or refused to account for moneys or other valuables belonging to others which have come into his possession arising out of the sale of vehicles. . . . .
e) having committed any act or engaged in conduct in connection with the sale of vehicles which clearly demonstrates unprofessional conduct or incompetency to operate as a licensee under this act.

In its decision, the Board said that it was especially concerned that the salesperson “knowingly misrepresented the financing portions of some vehicle transactions in order to take advantage of unsuspecting customers that placed their trust in him so as to allow [petitioner] to make personal financial gains. Specifically, [petitioner] made false promises regarding customers’ vehicle financing in order to obtain fraudulent bank loans in [his] name so that he could use those funds to purchase his own vehicle dealership."

The Board rejected petitioner's argument based on laches, since he had not raised it before the agency.

K&L Gates Electronic Discovery Case Database

Kirkpatrick & Lockhart Preston Gates Ellis LLP (K&L Gates) maintains and continually updates a database containing over 900 electronic discovery cases collected from state and federal jurisdictions around the United States.

This database is searchable by keyword, as well as by any combination of 28 different case attributes, e.g., on-site inspection, allegations of spoliation, motion for a preservation order, etc. Each search will produce a list of relevant cases, including a brief description of the nature and disposition of each case, the electronic evidence involved and a link to a more detailed case summary if available.

This database supplements the electronic discovery law blog maintained by the firm at ediscoverylaw.com. The blog is dedicated to legal issues, news and best practices relating to discovery of electronic stored information published by the e-Discovery Analysis and Technology Group at K&L Gates.

E-Discovery Case Database
electronic discovery law blog (ediscoverylaw.com)

Article: Where Do the Footprints of Metadata Lead?

The National Law Journal features an excellent article published on Law.com, that provides an overview of legal and ethical issues concerning metadata. In addition to explaining what metadata is, the article briefly examines how one finds it as well as the ethics of mining for it.

The article is at the link below.

Where Do the Footprints of Metadata Lead?

consumer protection - assignee liability

Colanzi v. Countrywide Homes Loans - ED Pa. - February 22, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0209P.pdf

The assignee of an allegedly improper mortgage loan is not liable for the alleged wrongful acts of the originator of the loan, where there is no allegation of any specific wrongful acts on the part of the assignee. "While the [consumer protection] statute 'provides that consumers may sue a seller of goods or services who commits an unfair trade practice, it does not impose liability on parties who have not themselves committed any wrongdoing. Williams v. Natl Sch. of Health Tech, 836 F.Supp. 273, 283 (E.D. Pa. 1993)." None of the alleged wrongful actions could be imputed to the defendant.

federal courts - pleading - Rules 8(a)(2) and 12(b)(6)

Phillips v. County of Allegheny - Third Circuit - February 5, 2008

http://www.ca3.uscourts.gov/opinarch/062869p.pdf

This case discusses the change in long-established pleading standards, resulting from the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955 (2007). Prior to Twombly, the courts had applied the "no set of facts" language and held that a "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-6 (1957).

The Third Circuit found "two new concepts in Twombly" involving a discussion of the language of Rule 8 http://www.law.cornell.edu/rules/frcp/Rule8.htm that a complaint has to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The Court said that this required a 'showing' rather than a blanket assertion of entitled to relief" and required the pleading of factual allegations that were "enough to raise a right to relief above the speculative level." A "formulaic recitation of the elements of a cause of action will not do."

Second, the Twombly Court "disavowed certain language that it had used many times before --the "no set of facts" language from Conley...It is clear that the 'no set of facts' language may no longer be used as part of the Rule 12(b)(6) [http://www.law.cornell.edu/rules/frcp/Rule12.htm] standard...'This phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be support by showing any set of facts consistent with the allegations in the complaint.'" The Third Circuit found that "these two aspects of the decision are intended to apply to the Rule 12(b)(6) standard in general."

The Third Circuit also noted that

- while the requirment of a "showing" is new, the Supreme Court also expressly reaffirmed that Rule 8 requires only a short and plain statement of the claim and its grounds. "Whether and to what extent that 'showing' requires allegations of act will depend on the particulars of the claim." Context will be all-important.

- the Twombly court was "careful to base its analysis on pre-existing principles...The Court emphasized throughout its opinion that it was neither demanding a heightened pleading of specifics nor imposing a probability requirement....Thus, under our reading, the notice pleading standard of Rule 8(a)(2) remains intact, and courts may generally state and apply the Rule 12(b)(6) standard, attentive to context and a showing that 'the pleader is entitled to relief, in order to give the defendant fair notice of what the...claim is and the grounds upon which it rests.'"

- like other courts, the Third Circuit found the Twombly decision "confusing" and said that it would "likely be a source of controversy for years to come."

- Twombly may involve a new "plausibility requirement" and require rejection of claims in the there a "mere metaphysical possibility" of a plaintiff proving some facts to support the claim

The court summarized by saying that "all of the foregoing discussion can be reduced to this proposition: Rule 8(a)(2) has it right....This rule requires not merely a short and plain statement, but instead mandates a statement 'showing that the pleader is entitled to relief.' That is to say, there must be some showing sufficient to justify moving the case 'beyond the pleadings to the next stage of litigation."

state appellate procedure - Rule 1925(b) - statement of errors complained of - waiver - quantity of issues

Eiser v. Brown & Williamson Tobacco Corp. - Pa. Supreme Court - December 28, 2007

plurality (3) http://www.courts.state.pa.us/OpPosting/Supreme/out/J-22-2007oajpdf
concurring (2) http://www.courts.state.pa.us/OpPosting/Supreme/out/J-22-2007co.pdf
dissent -Castille http://www.courts.state.pa.us/OpPosting/Supreme/out/J-22-2007do1pdf
dissent - Eakin http://www.courts.state.pa.us/OpPosting/Supreme/out/J-22-2007do2pdf

Pa. R.A. P. 1925(b) requires an appellant to file and serve on the trial judge a "concise statement of the errors complained of on appeal," where the judge "desires clarification of the errors complained of" and enters an order directing the appellant to prepare such a statement. http://www.pacode.com/secure/data/210/chapter19/s1925.html

As the plurality noted, this rule has been discussed in a "myriad [of] recent decisions...which reach varying conclusions.....[T]here is much consternation in the courts of this Commonwealth related to where lies the outer limit of the number of issues" an appellant may raise under this rule." The process under Rule 1925(b) "has turned into a maelstrom in recent years....."

This case does little to "clarify and quell the consternation," especially given the questionable precedential value of plurality opinions. Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454; 866 A.2d 270, 275 n. 2 (Pa. 2005).

In this case, the appellants filed a 15-page statement containing 24 separately-numbered issues, some of which contained sub-issues. The trial court wrote an 85-page opinion in the case, which had a "complicated and voluminous record" and in which four judges had issued rulings. The trial and Superior Courts held that appellants had waived their right to appellate review as to 6 of 8 issues they had raised and not voluntarily abandoned on appeal.

Plurality opinion - no per se rule - presumption of good faith
The plurality "instruct[ed] lower courts to address, on the merits, all issues raised in good faith....This standard provides, where necessary, a familiar tool to assess the basis for the issues raised." The plurality also stated that "the number of issues raised in the Rule 1925(b) statement cannot by itself provide a basis for finding waiver....In sum, the number of issues raised in a Rule 1925(b) statement does not, without more, provide a basis upon which to deny appellate review where an appeal otherwise complies with the mandates of appellate practice....There is a presumption that an attorney licensed to practice law in this Commonwealth, who acts as an officer of the court system, has acted in good faith upon signing a document filed with the court." The court "encourage[d] lower courts to recognize that on rare occasions a party may, in good faith, believe that a large number of issues are worthy of pursuing on appeal." (emphasis added)

Saylor, J., concurring - The justice noted his disagreement with a "strict waiver approach" and opposition to any expansion of that doctrine. He thought that the trial and intermediate appellate courts "had reasonable alternatives short of the drastic sanction of outright dismissal to address the apparent lack of conciseness in the statement."

Castille, J., dissenting - The dissenting justice noted that the trial and Superior Court orders were issue-specific and had held that 2 of the 8 matters complained of were "susceptible of meaningful review.....In short, appellants were afforded appellate review, but that review was restricted." The justice criticized the Court's finding of appellants' good faith, noting that it was "not a court of record with fact-finding capacity or function." He said that the lower court decisions were the "natural result of appellants' own Rule 1925(b) conduct," that "appellants took no action to protect their interests," and that the plurality overlooked appellants' lapses. He thought that the result of the plurality opinion would be "the filing of prolix statements as of right, without leave or explanation" and was a solution that would "reward...litigants who primarily have themselves to blame for their dilemmas."

Eakin, J., dissenting - The justice felt that the 1925(b) statement impeded rather than aided the trial judge in writing an opinion. "There comes a point when too much is simply too much."

disability - credibility - medical sources - findings and reasons

Echols v. Astrue - ED Pa. - January 31, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0141P.pdf

Case remanded because of improper determination about claimant's credibility and the other errors listed below.

The ALJ erred in crediting evidence from one source about claimant's credibility but rejecting evidence from the same source about claimant's RFC, without explaining this inherent contradiction. In making findings about credibility and other issues, findings, the ALJ must indicate in his decision which evidence he has rejected and which he is relying, as well as the reasons for choosing one over the other, so that the court can assess whether significant probative evidence was credited or ignored. Schaudeck v. Commr., 181 F.3d 429, 433 (3d Cir. 1999).

GAF - acceptable medical source - SSR 06-3p allows the opinion of an other-than "acceptable medical source" to outweigh that of an "acceptable medical source." Here a AMS set the GAF at 57 but an other than AMS (a masters level clinician and licensed clinician) found it to be 45. The ALJ did not explain his preference for the AMS's opinion. In addition, the defendant commissioner improperly gave a reason for the decision that was not included in the ALJ decision. Defendant may not substitute its reasons for that of the ALJ’s. See Fargnoli v. Halter, 247 F.3d 34, 44 n.7 (3d Cir. 2001) (quoting SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“[T]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based”)).

claimant's credibility - findings and reasons - The ALJ did not explain why/how he found some of claimant's statements credible and others not credible. Chenery Corp., 318 U.S. at 87; Fargnoli, 247 F.3d at 44 n.7. The ALJ’s failure to indicate clearly in his credibility finding which of Plaintiff’s statements he credited, which he found were not supported by the medical record, and why, leaves the court unable to assess properly whether significant probative evidence was credited or ignored. See Schaudeck, 181 F.3d at 433.

RFC formulation - In determining the RFC, the ALJ must consider all relevant evidence. Fargnoli, 247 F.3d at 41. “That evidence includes medical records, observations made during formal medical examinations, descriptions of limitations by the claimant and others, and observations of the claimant’s limitations by others.” Id. (citing 20 C.F.R. § 404.1545(a)). The ALJ’s RFC finding must provide a clear and satisfactory explanation of its basis but did not do so here.

VE opinion - The errors listed above also made the VE hypothetical improper. After correcting errors in the ALJ’s credibility and RFC determinations on remand, the ALJ must present a complete hypothetical to the VE and consider any VE opinion that encompasses all limitations found to exist.

consumer protection - title insurance - fraudulent OR deceptive conduct

Alberton, et al. v. Commonwealth Land Title Insurance Co. - ED Pa. - January 31, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0133P.pdf

The court certified a class of consumer who had purchased title insurance from defendant within 10 years of a prior purchase of title insurance. The court said that "[i]n doing so, it joins a growing list of courts around the country that have certified similar classes of insurance purchasers bringing similar cases against insurance sellers and arising from practices nearly identical to the sales practices challenged here."

Title insurance is regulated by the Pennsylvania Title Act, 40 P.S. 910-1 et seq., and the Title Insurance Rating Bureau Manual (Manual), which establishes a mandatory 3-tier pricing structure - basic, reissue, and refinance. The named plaintiff claimed that he was entitled to the lowest rate (refinance) but was charged the higher reissue rate, which cost him $234.08 more.

Plaintiff sued under various causes of action (contract, UTPCPL, fraudulent misrepresentation, etc. etc.) who elements differed "but each turns on the question of whether plaintiff was required to request a discounted rate and produced evidence showing his entitlement to that rate when he purchases title insurance from Commonwealth; or whether Commonwealth should have automatically offered plaintiff discounted rate upon learning, through the title search, that he had refinanced in the [recent] past," thus entitling him to a discount.

Of particular note was the court's discussion of the UTPCPL claim, in the context of Rule 23(b)'s requirement that common questions of law/fact predominate over individual questions. The court said that

A plaintiff seeking to recover under the UTPCPL once was required to prove all the elements of common law fraud; however, a 1996 amendment made the law “less restrictive.”9 Commonwealth v. Percudani, 825 A.2d 743, 747 (Pa. Cmwlth. 2003). Plaintiffs must now show conduct that is “deceptive to the ordinary consumer,” but need not prove all the elements of fraud.10 Id. at 746. Thus, individualized proof of justifiable reliance is no longer required to succeed on a claim under the UTPCPL. Instead, “[a] policy of not applying published insurance rates, if proven, would satisfy the requirement of a deceptive practice under the UTPCPL.” Cohen, 242 F.R.D. at 301. Because plaintiffs can succeed as a class by showing Commonwealth’s policy rather than individual reliance, common questions predominate on this claim.

9 Section 202-2(4)(xxi) now prohibits “engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 Pa. Cons. Stat. Ann. § 202-2(4)(xxi)..... Prior to 1996, the section addressed only “fraudulent,” not “deceptive,” conduct.....

10 Pennsylvania courts are divided as to the import of the 1996 amendment to the UTPCPL: the superior courts continue to require plaintiffs under the UTPCPL to prove all the elements of common law fraud whereas the Commonwealth court has abandoned that requirement. See Com. ex rel. Corbett v. Mason, 903 A.2d 69, 74 (Pa. Cmwlth. 2006) (recognizing split among Pennsylvania courts). The Commonwealth court reasons that “(1) the statute is to be liberally construed to effectuate the legislative goal of consumer protection; (2) the legislature’s addition of the words ‘or deceptive’ signals a less restrictive interpretation; and (3) maintaining the pre-1996 requirement would render the words ‘or deceptive conduct’ redundant and superfluous, contrary to the rules of statutory construction.” Id. Other federal courts that have considered the effect of the 1996 amendment have agreed with the Commonwealth court’s conclusion. See, e.g., Cohen, 242 F.R.D. 295; Flores v. Shapiro & Kreisman, 246 F. Supp. 2d 427, 432 (E.D. Pa. 2002) (holding that, to survive a motion to dismiss, plaintiff seeking relief under UTPCPL need allege only that conduct was deceptive; all six elements of common law fraud are not necessary); In re Patterson, 263 B.R. 82, 91-92 (Bankr. E.D. Pa. 2001). Persuaded by the reasoning of the Commonwealth court and these federal courts, this Court also concludes that the addition of “deceptive” conduct to the UTPCPL signals the legislature’s intent that plaintiffs proceeding under the UTPCPL no longer be required to establish the elements of common law fraud.

The Title Insurance statute is also discussed in the recent ED Pa. case of Markocki v. Old Republic National Title Insurance Company http://www.paed.uscourts.gov/documents/opinions/07D1382P.pdf

real property - judicial sale - petition to set aside - due process rights of owner

Fulton v. Bedford County Tax Claim Bureau - Commonwealth Court - January 31, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/1302CD07_1-31-08.pdf

A person who holds legal title to property which he purchased at a judicial sale is an indispensable party to and has a due process right to get notice of and take part in the prior owner's subsequent petition to set aside the judicial sale because of alleged lack of notice. The lower court erred in denying the purchaser's petition to intervene in the proceedings on the prior owner's petition.

The purchaser was more than just a successful bidder at a tax upset sale, but rather held title to the property as owner, after title passed first to the taxing bureau as trustee, which then conveyed its title to purchaser, who became the legal title holder. "As legal owner, Purchaser is entitled to due process before title to the Property may be transferred to another....To that end, appellate courts consistently hold property owners are indispensable parties to lawsuits affecting their property rights."

consumer protection - credit card - statute of limitations

Richburg v. Palisades Collection LLC and Wolpoff & Abramson LLP- ED Pa. - January 28, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0113P.pdf

Plaintiff sued defendants -- a collection agency and a law firm -- under various consumer statutes for bringing suit to collect a debt on which the statute of limitations had run. Defendants moved for summary judgment, claiming that the statute of limitations for such actions was 6 years and that their suit against plaintiff was filed within that period.

The court rejected this argument, holding that the statute of limitations on an alleged credit card debt is four (4) years under the standard contract provision in 42 Pa. C.S. 5525(a).

account stated - The court rejected the defendants' claim that they had sued plaintiff within the proper limitations period, which they said was six years, under 42 Pa. C.S. 5527(b), which covers cases which do not come under any other specified limit. The defendants claimed that the debt was on an "account stated." After a thorough review of the law of "account stated," the court said the it was "just a variety of contract" and came under the 4-year statute covering contracts.

letter from attorney was attempt to collect debt - The court also rejected the claim that the debt collector's attorneys were not themselves acting as debt collectors, noting a pre-suit letter to plaintiff stating that "this is an attempt by a debt collector to collect a debt," with no reference to an impending legal action or any suggestion that it was part of an attempt to prosecute a lawsuit. The court said that the letter created attorney liability under the state debt collection law, 73 Pa. C.S. 2270.1 et seq., which in turn established per se liability under the state consumer protection law, 73 P.S. 201-1 et seq.

bona fide error defense - The court refused summary judgment on defendants' claim under the bona fide error defense, 15 USC 1992k(c) and 72 P.S. 2270.5(d), holding that under the facts, there was a jury question as to whether defendant Palisades national survey of statutes of limitations was, as a matter of law, a measure that was reasonably adapted to avoid the error that occurred here.

The bona fide error defense involves three prongs: 1) a (subjective) determination of whether the violation was unintentional; and objective determinations of 2) whether the error leading to FDCPA violation was bona fide, and 3) whether defendants maintained reasonable procedures to avoid such an error. When the error involves an alleged mistake of law, these last two elements "merge with one inquiry driving the other." Noting a split of authority on the issue, the court said that it was siding with a "'growing minority of courts' that finding mistakes of law can satisfy the FDCPA's bona fide error defense."

The court noted that there is a difference between a debt collector relying on the interpretation of a disinterested third party, such as a regulator, e.g. Kort v. Diversified Collection Services, 394 F.3d 530, 533-4 (7th Cir. 2005), from one relying on "their own expansive statutory interpretations that theoretically would have the effect of insulating them from liability under the FDCPA, e.g., Johnson v. Riddle, 443 F.3d 7213, 727-8 (10th Cir. 2006).

disability - treating physician opinion - duty of ALJ to develop record

Nguyen v. Astrue - ED Pa. - January 23, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0094P.pdf

Case remanded for proper consideration of the opinion of the treating psychiatrist.

The ALJ errors included

- improperly relying on claimant's failure to allege any symptoms in his Social Security paperwork failing to tell the treating psychiatrist about experiencing emotional problems as of a certain date. The court held that these “facts” are entitled to “no weight . . . because neither are based on ‘contrary medical evidence.’

- improperly considering claimant's failure to discuss his emotional problems with his family physician. That cannot negate the opinion of his treating psychiatrist, the specialist claimant consulted for his specific problem.”

- the fact that Mr. Nguyen told his doctor that he was "doing okay on the medication and was less depressed” does does not expressly contradict treating physician's opinion and substitutes the ALJ’s clinical judgment for that of the treating psychiatrist. The notes do not expressly contradict the physician's opinion. In so finding, the ALJ’s substituted his clinical judgment for that of the treating psychiatrist. The ALJ did not identify a contradiction between the doctor's notes and her opinion, but instead “set [the ALJ’s] own expertise against that of a physician who presents competent evidence.” Ferguson v. Schweiker, 765 F.2d 31, 37 (1985).

- The ALJ's statement that the treating physician's report was completely unsubstantiated by any contemporaneous clinical notes or testing. . . .is belied by the record"

- duty to develop the record - The ALJ, in considering the submissions of a claimant’s treating psychiatrist, has a limited duty to develop the record if he finds those submissions, in certain respects, inadequate to support the conclusions the psychiatrist makes. See Ferguson, 765 F.2d at 36 (“[I]f the ALJ believed [a claimant’s medical] evidence was inconclusive or unclear, it was incumbent upon him to secure whatever evidence he needed to make a sound determination.”). Pursuant to 20 C.F.R. § 404.1512(e)(1), the ALJ must “seek additional evidence or clarification from [a claimant’s] medical source when the report from [the] medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.” This specific regulation is an instance of the ALJ’s broader “duty to develop a full and fair record in social security cases.” Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995).

This duty is “heightened” when plaintiff is without counsel, Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979), but still exists when plaintiff is represented. See Ventura, 55 F.3d at 902 (concluding, in a case where the claimant was represented by counsel but the ALJ was biased, that the ALJ’s duty to develop the record stems from the non-adversarial nature of social security hearings and the “beneficent purposes” of the Social Security Act).

Thus, while claimant bears the burden of providing evidence that the Commissioner “can use to reach conclusions about [the claimant’s] medical impairment(s),” 20 C.F.R. § 416.912(a), circumstances may arise where the ALJ, when presented with such evidence, may be compelled to develop the record in order to corroborate or discredit the claimant’s submissions. An “essential inquiry” for determining when this duty arises “is whether the incomplete record reveals evidentiary gaps which result in prejudice to the claimant.” Gauthney v. Shalala, 890 F. Supp. 401, 410 (E.D. Pa. 1995). Schwartz v. Halter, 134 F. Supp. 2d 640, 656 (E.D. Pa. 2001) (holding that the ALJ’s duty to develop the record “exists even when the claimant is represented by counsel because an administrative hearing is not an adversarial proceeding . . . ”); Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994) (holding that “the duty to develop the record fully and fairly” exists “‘even if . . . the claimant is represented by counsel’” (quoting Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir.1992) (internal quotation omitted)).

PA Bar Association Issues Ethics Opinion on Mining Metadata

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility has recently issued Formal Opinion, 2007-500, on the subject or mining metadata received in materials furnished by opposing counsel.

Metadata is information embeded within electronic documents that may not be viewed in a printed version of the document. It may include information about the creation of the document including information about the author, date, time or location where it was created. Metadata may also contain information deleted from earlier versions of the document, or information contained in comments made by reviewers during the document's creation.

The Committee concluded that, under the Pennsylvania Rules of Professional Conduct, each attorney must determine for himself or herself whether to utilize the metadata contained in documents and other electronic files based upon the lawyer’s judgment and the particular factual situation.

This determination should be based upon the nature of the information received, how and from whom the information was received, attorney-client privilege and work product rules, and common sense, reciprocity and professional courtesy.

Although the waiver of the attorney-client privilege with respect to privileged and confidential materials is a matter for judicial determination, the Committee believed that the inadvertent transmissions of such materials should not constitute a waiver of the privilege, except in the case of extreme carelessness or indifference.

The Committee noted that there is no specific Pennsylvania Rule of Professional Conduct determining the ethical obligations of a lawyer receiving inadvertently transmitted metadata from another lawyer, his client or other third person; and, there is no specific Pennsylvania Rule of Professional Conduct requiring the receiving lawyer to assess whether the opposing lawyer has violated any ethical obligation to the lawyer's client.

In reaching its conclusion, the Committee reviewed decisions from other jurisdictions in light of the existing rules in Pennsylvania.

The Opinion is available to Pennsylvania Bar Association members on the PA Bar Association website at the link below.

PA Bar Association Ethics Opinions

consumer - warranty - UCC- UTPCPL - Magnuson-Moss

Woolums v. National RV - MD Pa. - January 17, 2008

http://www.pamd.uscourts.gov/opinions/Conner/06v0787.pdf

Plaintiff sued under the UCC,13 Pa. C.S 2313-2316; the Consumer Protection Law, 73 P.S. 201-1 et seq.; and the Magnuson-Moss Warranty-FTC Improvement Act, 15 USC 2301-2312. The case was originally brought in state court, but removed to federal court on defendant's motion.

Defendant moved for summary judgment on all claims. The court granted the motion only as to breach of the implied warranties of merchantability and fitness for a particular purpose, holding that they had been properly disclaimed -- it was in writing, was conspicuous, and used appropriate and understandable language. Defendant's motion for summary judgment was denied as to all other claims, based on applicable law and because there were genuine issues as to material facts.

Defendant issued a one-year limited warranty covering the costs of repairing or replacing parts and labor to correct Covered Defects, which are limited to the any manufacture or assembly process performed by National. Problems with other parts were outside of this warranty. There was no representation that the covered parts or workmanship conformed to any standard of quality or performance. Plaintiff had numerous problems with the RV and took it in for repairs on many occasions.

seller's promise to repair or replace is an express warranty under UCC 2313(a)(1)
Noting a split of authority on the issue, which it said Pennsylvania courts have not squarely addressed, the court held that the "repair-or-replace covenant constitutes an express warranty actionable under the UCC, 13 Pa. C.S 2313(a)(1). The court noted the "breadth of statutory language [that] provides that "any affirmation of fact or promises...creates an express warranty that the good shall conform to the affirmation or promise...[T]he word 'any' suggests that all express promises that pertain to the goods become warranties, even if they do not specifically address the goods' quality or nature...The UCC official comments confirm that sec. 2313 is to be given a wide berth." National itself used the term "express warranty." Under those circumstances, the court said the "it would be fundamentally unfair to permit National to invoke an illusory construction of its contractual language, leaving merely a remedial promise to repair" instead of the express promise to repair or replace.

The court noted that the "express warranty at issue, like many contracts between commercial sellers and consumer, is one of adhesion....Adhesion contracts are not per se invalid, but courts strictly construe them against the drafting party, who holds a position of superior bargaining power and can dictate the agreement's terms."

failure of limited remedy to accomplish its essential purpose
The court held that the parties' positions differed significantly on the issue of whether defendant's attempt to limit plaintiff's remedies caused them to "fail of its essential purpose" under UCC sec. 2719(b), thus raising a jury question and precluding summary judgment, given the buyer's proffered evidence that he was unable to use the motor home for about eight months because of repairs that were covered by the warranty. An exclusive repair--as opposed to repair-replace-- remedy is acceptable, "so long as the buyer has the use of substantially defect-free goods. But when the seller is either unwilling or unable to conform the good to the contract, the remedy does not suffice" and fails of its essential purpose.

Magnuson-Moss warranty claim - 15 USC 2301 et seq.
This act "provides relief for consumers 'damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under [the Act] or under a written warranty, implied warranty, or service contract.' 15 USC 2301(d)(1)..."Written warranties under the act include those which guarantee that the seller will 'repair, replace, or take other remedial action with respect to a defective product in the event that such product fails to meet the specifications set forth in the undertaking...A violation of the act allows the consumer to seek recovery of the purchase price of the product plus attorney's fees and costs. The court denied defendant's motion for summary judgment on this claim, finding that "a reasonable jury could find that defendant failed to abide by the term of the warranty," in violation of the statute.

state consumer protection claim 73 P.S. 201-1 et seq.
A failure to comply with the terms of any written guarantee or warranty is actionable under the CPL, sec. 201-2(4)(xiv). Summary judgment for defendant denied because of genuine issue of material fact.

bankruptcy - appeals - final order

In re Truong - 3rd Circuit - January 16, 23008

http://www.ca3.uscourts.gov/opinarch/063980p.pdf

An order which "merely denied [a] request for a hearing concerning an alleged conflict of interest on the part of the trustee" is not final and appealable under 28 USC 158(a). It was a "purely interlocutory order" and did not "end the litigation on the merits" or "dispose of any discrete claim or cause of action." .

The court reached this decision, even though there are finality considerations unique to bankruptcy appeals, in which the courts "traditionally impose a 'relaxed standard of finality.' " A "general antipathy toward appeals still prevails in individual adversary actions...[E]ven in bankruptcy appeals the concept of finality is not open-ended."

employment - wages - FLSA - donning and doffing

Lugo v. Farmer's Pride, Inc. - ED Pa. - January 14, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0061P.pdf

The court denied defendant's 12(b)(6) motion to dismiss plaintiffs' claims for wages for time donning and doffing work clothing, holding that it would be premature to rule on such mixed questions of law and fact without further development of the record.

The issue is whether the donning and doffing is "integral and indispensable " to employee's work and thus compensable under the Fair Labor Standards Act, 29 USC sec. 201 et seq., the Portal-to-Portal Act, 29 USC 254(a), and IBP, Inc. v. Alvarez, 546 U.S. 21 (2005) and its progeny.

Commonwealth Court - unreported opinions - indefinite posting

As of January 15, 2008 (and at the request of the Commonwealth Court), the following changes have been made to the webpage where its opinions are posted
http://www.courts.state.pa.us/OpPosting/index/CWealthOpindex.asp

Unreported opinions - indefinite posting
Unreported opinions will be posted indefinitely. Previously, they were removed after 90 days. All unreported opinions less than 90 days old, posted prior to January 15 are available through a link on the unreported opinions webpage titled ‘Unreported Opinions Prior to Jan. 15, 2008.’

Order of posting - most recent to oldest
The default sort order for both reported and unreported postings is now from the most recent to the oldest, as requested by many users. This posting order is also being followed on Superior http://www.courts.state.pa.us/OpPosting/index/SuperiorOpindex.asp and Supreme Court http://www.courts.state.pa.us/OpPosting/index/SupremeOpindex.asp opinion sites

bankruptcy - credit counseling prior to filing

In re Hoshan - ED Pa. - January 7, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0029P.pdf

This Chapter 13 case was held to have been properly dismissed, because the debtor/appellant did not get or certify that she got credit counseling before filing the bankruptcy, as required by 11 USC sec. 109(h)(1).

The debtor filed her petition on March 30th, lacking a number of documents, including either a certificate that she had already received credit counseling or a request for an extension or exemption from that requirement, due to exigent circumstances. She didn't actually get credit counseling until April 3rd, and filed a certificate to that effect on April 30th.

Bankruptcy Rule 9006(b)(1) allows the court discretion to excuse late filing due to "exigent circumstances" and the debtor made a "persuasive case" for that. But the court said that the "real issue....is not the late filing [but] that the appellant did not receive credit counseling before she filed her bankruptcy."

Although the court recognized that the counseling requirement is not jurisdictional, it noted that "[m]osts courts have concluded that dismissal is mandated when the debtor has not complied with the credit counseling requirement."

Noting that "[s]ome courts have waived the credit counseling requirements to avoid manifest injustice," the court said that the debtor did not meet that test, even thought it was "sympathetic to the challenges the appellant faces as the mother of seven children and the primary caretaker for her injured husband....Her family situation, while difficult, does not rise to the level of those cases in which courts avoid manifest injustice by waiving the credit counseling requirement."

The court cited In re Manalad, 360 B.R. 288, 296 (Bankr. C.D. Cal. 2007) (debtor’s counsel mistakenly advised him that his non-consumer debts were not subject to the requirements); In re Vollmer, 2007 WL 541747 Bankr. E.D. Va. 2007) (debtor was incarcerated at the time he filed his petition and had no access to a credit counselor); In re Petit-Louis, 344 B.R. 696 (Bankr. S.D. Fla. 2006) (debtor spoke only Creole and no Creole-speaking credit counselor was available); In re Bricksin, 346 B.R. 497 (Bankr. N.D. Cal. 2006) (debtors had set up a payment plan with a credit counseling agency and had been making payments but failed to file the certificate with their bankruptcy petition).

Free Public Access to all Pennsylvania Statutes - PS and Pa. C.S.

The complete unannotated version of Purdon's Pennsylvania Statutes is now available for free on the Internet. The Unofficial Purdon's Pennsylvania Statutes from West are now available directly from the link below or from the website of the Pennsylvania General Assembly.

Previously, no official statutes were available online. Then in July 2007 the General Assembly posted the official consolidated statutes for Pennsylvania on the Internet. Now the unofficial Purdon's Pennsylvania Statutes from West has replaced the official consolidated version.

Although Purdon’s is not an official publication of the Commonwealth of Pennsylvania, it is still probably the best resource to use when researching the laws of Pennsylvania by subject.West’s Purdon’s Pennsylvania Statutes, hosted by Westlaw, is easy to browse and can be searched using natural language or by typing a statute citation in quotations. This free version is not annotated and does not include court rules.

Court rules and state agency regulations are available on the Pennsylvania Code website http://www.pacode.com/, which is free and searchable.

Proposed regulations and court rules, as well as official notices, etc., are available in the Pennsylvania Bulletin http://www.pabulletin.com/, which is also free and searchable.

Unofficial Purdon's Pennsylvania Statutes from West

predatory mortgages

Parker v. Long Beach Mortgage Company - ED Pa. - January 3, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0015P.pdf

Although the court rejected the consumer claims of the plaintiffs, "relatively sophisticated borrowers" one of whom had a real estate license, there is some potentially useful language in the opinion.

The court noted that the dispute involved a "broker and four lending institutions [and] embodies many of the factors identified with predatory, subprime mortgage loans:[ n.1] an aggressive mortgage broker, no document loans, interest climbing to double-digit rates, escalating payments, balloon payments, prepayment penalties, and negative amortization. As distasteful as the practices may be, [n. 2] that odor of opportunism is not enough to save [the plaintiffs] from themselves."

n.1 - HUD-Treasury Joint Report http://www.hud.gov/library/bookshelf12/pressrel/treasrpt.pdf

n. 2 - The power to curb predatory practices lies either in consumer education or with Congress; as a court of limited jurisdiction, I may only enforce the laws as written, not as I would wish they were written.

evidence - immature witnesses

Commonwealth v. Davis - Superior Court - December 17, 2007

http://www.aopc.org/OpPosting/Superior/out/a29031_07.pdf

The determination of a witness's competency rests within the sound discretion of the trial court. The decision of the trial court will not be disturbed absent a clear abuse of that discretion. The "standard of review of rulings on the competency of witnesses is very limited indeed. "

In Pennsylvania, the general rule is that every witness is presumed to be competent to be a witness. However, young children must be examined for competency pursuant to the following test:

(1) The witness must be capable of expressing intelligent answers to questions;
(2) The witness must have been capable of observing the event to be testified about and have the ability to remember it; and,
(3) An awareness of the duty to tell the truth.

If there is an allegation of taint, the inquiry centers on the second element. The “appropriate venue” for investigation into such a claim is a competency hearing , centered on the inquiry into the minimal capacity of the witness to communicate, to observe an event and accurately recall that observation, and to understand the necessity to speak the truth.

Pennsylvania courts have recognized that an immature witness’s testimony can be tainted by the inquiries of adults. In that instance, the core belief underlying the theory of taint is that a child's memory is peculiarly susceptible to suggestibility so that when called to testify a child may have difficulty distinguishing fact from fantasy. Taint is the implantation of false memories or the distortion of real memories caused by interview techniques of law enforcement, social service personnel, and other interested adults, that are so unduly suggestive and coercive as to infect the memory of the child, rendering that child incompetent to testify.

The capacity of young children to testify has always been a concern, since immaturity can impact a child's ability to meet the minimal legal requirements of competency. Common experience informs us that children are, by their very essence, fanciful creatures who have difficulty distinguishing fantasy from reality; who when asked a question want to give the “right” answer, the answer that pleases the interrogator; who are subject to repeat ideas placed in their heads by others; and who have limited capacity for accurate memory.

In order to trigger an investigation of competency on the issue of taint, the moving party must show some evidence of taint. Once some evidence of taint is presented, the competency hearing must be expanded to explore this specific question. During the hearing the party alleging taint bears the burden of production of evidence of taint and the burden of persuasion to show taint by clear and convincing evidence. Pennsylvania has always maintained that since competency is the presumption, the moving party must carry the burden of overcoming that presumption .

state pre-emption of local law-making

Nutter v. Dougherty, et al. - Pennsylvania Supreme Court - December 28, 2007

http://www.aopc.org/OpPosting/Supreme/out/J-89-2007mo.pdf

State law pre-empts local lawmaking where

- a state statute specifically declares that it has "planted the flag of pre-emption in a field" (express pre-emption)
- a state statute "proclaimes a course of regulation and control which brooks no municipal intervention" (field pre-emption)
- local law contradicts or contravenes state law (conflict pre-emption)

evidence - value of property - proof - testimony v. document

Nelson v. State Board of Veterinary Medicine - Commonwealth Court - December 17, 2007

http://www.aopc.org/OpPosting/CWealth/out/75CD07_12-17-07.pdf

The testimony of the owner of an asset is competent to prove its value, so long as it is based on the owner's personal knowledge. Written documents are not preferable to oral statements. The best evidence rule does not apply where the matter to be proved exists independently of a writing that might also be probative.

consumer - arbitration clause - credit repair

Gay v. Creditinform - 3rd Circuit - December 19, 2007

http://www.ca3.uscourts.gov/opinarch/064036p.pdf

Enforcing the contractual arbitration clause pursuant to the Federal Arbitration Act, 9 USC sec. 2, the Third Circuit affirmed the district court in granting the defendant's motion to compel arbitration, on an individual basis, of the plaintiff's proposed class action under the Credit Repair Organizations Act (CROA), 15 USC 1679 et seq. and the Pennsylvania Credit Services Act (CSA), 73 P.S 2181 et seq.

The court held that plaintiff did not satisfy her "burden of establishing that Congress intended to preclude arbitration" of a claim under the CROA or that arbitration "irreconcilably conflicts" with the purposes of the CROA, citing its similar decision under the TILA in Johnson v. West Suburban Bank, 225 F3d 366, 371, 373 (3d Cir. 2000). The court said that the plaintiff, in the arbitration proceeding, would retain her "full range of rights created by the statutes" and that the right to bring a class action was created by the federal rules of civil procedure rather than the CROA. The court also stressed the possibility of administrative enforcement of the CROA by the FTC and state attorneys general, which it said "supply procedures for obtaining remedies reasonably substituting for those available in a class action."

Concerning the anti-waiver provision of the CROA, the court said that it "only prohibits waiver of the substantive obligations" imposed by the CROA and not the enforcement procedures, such as seeking relief in a judicial forum or seeking class relief.

Concerning plaintiff's claim that the arbitration clause and the contract as a whole were unconscionable, the court recognized that federal courts may apply "generally applicable contract defenses" available under state law "such as fraud, duress, or unconscionability" without running afoul of the FAA and the supremacy clause. However, the court held that "mere inequality" of bargaining power did not render a contract unconscionable, unless it approached "fraud or overwhelming economic power that would provide grounds for the revocation of any contract." The court found that the plaintiff -- who paid defendant about $5/month under the credit repair contract -- "could have walked away" from the contract and could have chosen another company to provide the services that defendant did. Her position was "different, for example, from that of a homeowner facing a mortgage foreclosure who accepts onerous refinancing terms in a desperate attempt to save her home."

The court rejected the Pennsylvania Superior Court decisions in Lytle v. CitiFinancial Services, Inc., 810 A.2d 643 (Pa. Super. 2002) and Thibodeau v. ComCast Corp., 912 A.2d 874 (Pa. Super. 2006), which struck down waivers of the right to bring a class action as unconscionable. Citing Perry v. Thomas, 482 U.S. 483 (1987), the court held that Lytle and Thibodeau established state law principles that were unique to arbitration agreements, rather than applicable to contracts generally. "'A state-law principle that takes its meaning precisely from the fact that a contract to arbitrate is at issue does not comport with" the generality requirement of sec. 2 of the Federal Arbitration Act. The court also noted the statement in Salley v. Option One Mortgage Corp., 925 A.2d 115, 129 (Pa. 2006), that the Lytle opinion "was well intentioned" but "swept too broadly."

The court ended by stating that it expressed "no view on whether [narrowing of the application of the FAA] might be a desirable result as it is not our function to do so. Rather, our obligation is to honor the intent of Congress and that is what we are doing. If the reach of the FAA is to be confined then Congress and not the courts should be the body to do so."

consumer - arbitration clause - unconscionability

O'Shea v. Direct Financial Solutions, Inc. - ED Pa. December 5, 2007

http://www.paed.uscourts.gov/documents/opinions/07D1467P.pdf

The court held that the arbitration clause in a payday loan contract was not unconscionable, either procedurally or substantively, thus preventing the plaintiff from raising UDAP and related consumer claims in a judicial forum. The court found this result mandated by the Federal Arbitration Act, 9 USC sec. 1 et seq. Section 2 makes such a clause "valid, irrevocable, and enforceable, save upon such grounds as exist in law or in equity for the revocation of any contract." 9 USC, sec. 2 http://www.law.cornell.edu/uscode/html/uscode09/usc_sec_09_00000002----000-.html.

Unconscionability can be a ground for revocation, but a person challenging on this ground has the burden of showing that the provision is both procedurally and substantively unconscionable. Procedural unconscionability pertains to the process by which an agreement is reached and the form of an agreement, including the use of fine print or convoluted or unclear language, none of which was at issue here. Substantive unconscionability refers to terms that unreasonably favor one party, terms to which the unfavored party does not truly assent.

The Third Circuit has "repeatedly held that inequality in bargaining power, alone, is not a valid basis upon which to invalidate an arbitration agreement. Harris v. Green Tree Finance Corp., 183 F.3d, 173, 183 (3d Cir. 1999). The Harris court also held that mutuality of remedies - e.g., the ability of the lender but not the borrower to seek judicial enforcement - is not required of a valid arbitration clause. The instant court rejected the different reasoning in Bragg v. Linden Research Inc., 487 F.Supp. 2d 593 (ED Pa. 2007), which applied California law on unconscionability, not Pennsylvania law.

employment - wages - WPCL

Inoff v. Craftex Mills, Inc. - ED Pa. - December 2007

http://www.paed.uscourts.gov/documents/opinions/07D1457P.pdf

Suit for wages on alleged oral, three-year guaranteed contract later memorialized in a series of writings. Plaintiff was a salesman in fabric/textile industry . Motion for summary judgdment by defendant, plaintiff's purported employer, granted in part and denied in part.

choice of law -
A federal court exercising its diversity jurisdiction must apply the choice of law rules of the forum state, Klaxon Co. v. Stenton Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941), so Pennsylvania law was applied to this case. The Pennsylvania Supreme Court has adopted a “flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” Griffith v. United Airlines, Inc., 203 A.2d 796, 805 (Pa. 1964). The approach “gives to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual context and thereby allows the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of the particular litigation.” Id. (internal quotation marks and alterations omitted) (quoting Babcock v. Jackson, 191 N.E.2d 279, 283 (N.Y. 1963)). The Griffith “interest/contacts” approach applies to contract disputes. Restatement 2d, Conflict sec. 188(2).

what was the parties' contract?
The defendant claims that plaintiff is an indpt. contractor whose employment was terminable at will. Plaintiff alleges another contract. “Pennsylvania law requires that a plaintiff seeking to proceed with a breach of contract action must establish ‘(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract[,] and (3) resultant damages.’” ...The first element is at issue . For a valid contract to exist, there must have been a “meeting of the minds” between the parties. A meeting of the minds is found where “both parties mutually assent to the same thing, as evidenced by an offer and its acceptance.” Since there was a genuine issue of some material facts, no summary judgment granted.

wage payment and collection law -
State statute applies only to employees,not indpt contractors . The defendant claims that plaintiff is not an "employee" under the WPCL. “Employee” is not defined by the WPCL, so Pennsylvania courts look to the state UC Law and the Worker’s Compensation Act’s definitions. ...According to the Pennsylvania courts, the following factors are relevant to the question whether one is an independent contractor: the control of the manner that work is to be done; responsibility for result only; termsof agreement between the parties; the nature of the work or occupation; the skill required for performance; whether one employed is engaged in a distinct occupationor business; which party supplies the tools; whether payment is by the time or by the job; whether the work is part of the regular business of the employer, and the rightto terminate the employment at any time.Surowski v. Commonwealth, 467 A.2d 1373, 1374 (Pa. Commw. Ct. 1983). “[P]aramount . . .among these factors is the right of an individual to control the manner that another’s work is tobe accomplished.” Morin, 871 A.2d at 850.

Also at issue in the case and discussed in the opinion are: promissory estoppel and piercing the corporate veil to make individual corporate officer liable for the wages claimed.

employment- FMLA - notice to employer

Sarnowski v. Airbrooke Limousine, Inc - 3d Circuit - December 12, 2007

http://www.ca3.uscourts.gov/opinarch/062144p.pdf

This opinion contains a lot of good language about the requirement that an employee must give notice to the employer of the need for FMLA leave, 29 U.S.C. § 2612(e)(2)(B), 29 C.F.R. § 825.302(c). No formal written request for FMLA leave is necessary. Simple verbal notice is sufficient. The notice provision must be construed liberally. No magic words are required. The employee need not know or give the exact dates of the anticipated leave.

Fair Credit Reporting Act - negligent non-compliance

Perez v. Trans Union, LLC, et al. - ED Pa. - November 2007

http://www.paed.uscourts.gov/documents/opinions/07D1391P.pdf

Plaintiff sued for an alleged violation of the Fair Credit Reporting Act, 15 USC 1681e(b), when the defendant credit reporting agency (CRA) mistakenly reported to a car dealership that plaintiff had a good credit history but was deceased and thus had no credit score. After this same thing happened several times, matters finally got sorted out, but plaintiff claimed that he had paid more for credit because of the mistakes, which he said were caused by defendant's failure to "follow reasonable procedure to assure maximum possible accuracy of information...." as required by sec. 1681e(b).

Defendant moved for summary judgment, which in a negligent noncompliance case can only be granted in this circuit when the "evidence demonstrates as a matter of law that the procedures it [defendant] followed were reasonable." Philbin v. Trans Union Corp., 101 F3d 957, 965 (3d Cir. 1996). Judging reasonableness "involves weighing the potential harm from inaccuracy against the burden of safeguarding against such inaccuracy." Id at 963. By contrast, "[o]ther courts have concluded flatly that 'the question, of whether a credit reporting agency followed reasonable procedures is reserved for the jury.'" (citing cases)

The defendant here admitted reiterating inaccurate information, which it did not independently verify. The questions is whether it "ought to have appreciated, under the circumstances presented, that there was a material inaccuracy such that a duty arose upon it to do something to correct it or not make a report." (emphasis in original).

The court held that there had no willful noncompliance, which it said "requires more than mere knowledge." There was no evidence to show that the CRA was "consciously aware that Plaintiff contested the accuracy of the report and then proceeded to report the inaccuracy anyway." (emphasis in original)* There was no "deliberate intention to violate Plaintiff's personal rights."

The court also rejected the negligent noncompliance claim, which consists of four elements
- the inclusion of inaccurate information in a credit report
- the inaccuracy was due to a failure to follow reasonable procedures
- the consumer suffered injury
- the injury was caused by the inclusion of the inaccurate entry.

The court granted summary to defendant based on the plaintiff's "lack of rebuttal evidence" to counter that in the summary judgment record, which showed that the banks involved all got their credit evidence independently of defendant. There was an "absence of evidence that [defendant] provided a credit report about Plaintiff to any potential lender...."

social security disability - treating physician's opinion - claimant credibility

Wilson v. Astrue - ED Pa. November 28, 2007

http://www.paed.uscourts.gov/documents/opinions/07D1402P.pdf

Benefits were granted in this case, which has good discussions of the standards for

- evaluating the opinion of a treating physician, and

- judging claimant credibility.

consumer - pleading - UTPCPL - no natl. bank liability under HIFA

Millege v. Chase Bank et al - ED Pa. November 26, 2007

http://www.paed.uscourts.gov/documents/opinions/07D1389P.pdf

Like a number of other courts, this one misstated the pleading requirements under the state consumer protection law, 73 PS 201-2(4)(xxi), holding that the particularity equivalent of fraud pleading is required. The court actually miscited and misquoted the relevant provision, citing it as sec. 201-2(4)(xvii), the pre-1996 citation, instead of sec. 201-4(xxi), and omitting the "or deceptive" language added by the 1996 amendments.

The court also held that a national bank such as Chase cannot be found liable under the state Home Improvement Finance Act (HIFA), 73 P.S. 500-408, for its alleged inclusion of a cash loan in a home improvement contract, because such liability is pre-empted by 12 USC 371 and 12 CFR 34.4, which say that such banks can make real estate loans wihtout regard to state law limitations concerning the terms of credit.

consumer - title insurance - TICA & UTPCPL - exhaustion of admin. remedies

Markocki v. Old Republic Natl. Title Ins. Co. v. Citizens Abstract Co. - ED Pa. - Nov. 19, 2007

http://www.paed.uscourts.gov/documents/opinions/07D1382P.pdf

Held, plaintiff was entitled to sue under the Consumer Protection Law, 73 PS 201-9.2, for an alleged violation of the state Title Insurance Company Act (TICA), 40 PS 910-37(h), without first exhausting her remedies under TICA.

Plaintiff brought her case when she refinanced her mortgage and was charged a "basic rate" of $978.75 rather than a "refinance rate" of $704.70, to which she was entitled under the Rate Manual of the Title Insurance Rating Bureau, 40 PS 910-37(h). When she found out about the improper charges, she sued under RESPA, 12 USC 2607, as well as for violations of the CPL, because of the improper charges under TICA.

Old Republic joined Citizens as a 3d party defendant, because Citizens, acting as its agent under TICA, had collected the improper charges, in spite of Old Republic having told Citizens about the proper changes under the Rate Manual.

Citizens' 12(b) (6) motion to dismiss was denied. Citizens claimed that Markocki had to exhaust her remedies under TICA, which says that an aggrieved person "may be heard" under TICA concerning its insurance rating, 40 PS 910-44(b).
Relying on the "weight of authority" under

- Cohen v. Ciicago Title Insurance Co., 2006 US Dist. Lexis 36689 (ED Pa. )
- Highmark Inc v. UPMC Health Plan, 276 F3d 160 (, 168 (3d Cir. 2001), and
- Ohio Casualty Group v. Argonaut Insurance, 525 A2d 1195, 1197 (Pa. 1987)

The court held that the remedy under TICA was discretionary, optional and incomplete rather than mandatory and exclusive, and that plaintiff's case under the Consumer Protection Law should not be dismissed.

insurance - denial - bad faith

Greene v. United Services Automobile Assn. - Superior Court - November 20, 2007

http://www.aopc.org/OpPosting/Superior/out/a20010_07.pdf

The court denied the plaintiffs' claim that their insurer denied their homeowner's insurance claim in bad faith. The court held that in order for a party to succeed on a statutory claim of bad faith under 42 Pa. C.S. sec. 8371 (actions on insurance policies) that party must fulfill a two-prong test. A plaintiff must show, by clear and convincing evidence, that

- the insurer did not have a reasonable basis for denying benefits under the policy and
- knew or recklessly disregarded its lack of a reasonable basis in denying the claim.

The court elaborated that the "motive of self-interest or ill will" level of culpability is not a third element required for a finding of bad faith, but it is probative of the second element, i.e.., the insurer knew or recklessly disregarded its lack of reasonable basis in denying the claim.

midwifery - licensing - Amish - standard for stay of admin. decision

Goslin v. State Board of Medicine - Cmwlth. Court - publication ordered November 16, 2007

http://www.aopc.org/OpPosting/CWealth/out/1830CD07_11-16-07.pdf

Unlicensed midwife with 26 years experience in Amish community denied application for stay of decision of state Board of Medicine directing her to discontinue her practice and imposing fines and penalties.

Aside from the substantive law, the decision is also noteworthy concerning the standards for a stay, especially the likelihood of success on the merits. The court said that the Supreme Court

in Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 553, 467 A.2d 805 (1983) has set forth the standard a litigant must satisfy in seeking a stay of an adjudicatory body’s decision. Applicants for a stay or supersedeas must:
(1) make a strong showing of likelihood of success on the merits;
(2) demonstrate that, without the grant of a stay, the applicant will suffer irreparable injury;
(3) establish that the Court’s issuance of a stay will not result in substantial harm to other parties interested in the proceedings; and
(4) show that the issuance of a stay will not adversely affect the public interest.
[J]urists considering applications should not regard the first prong inflexibly. Rather, in exercising its discretion to grant or deny a stay pending appeal, this Court may properly grant a stay, even when a litigant has presented a substantial case on the merits, if the litigant’s showing with regard to the remaining three factors strongly supports the applicant’s request. Witmer v. Department of Transportation, Bureau of Driver Licensing, 889 A.2d 638, 640 (Pa. Cmwlth. 2005).

dependency - counsel for child - access to child

In the Interest of A.S. - Superior Court - November 15, 2007

http://www.aopc.org/OpPosting/Superior/out/a24014_07.pdf

Trial court improperly dismissed child welfare agency's dependency petition due to the agency's failure to have the child in court to testify. The appellate court held that the dismissel was error where the child's court-appointed counsel never had a chance to meet with the child because of the mother's refusal to give counsel access to the child, despite an order directing the mother to do so.

The trial court did not receive evidence from both sides. The mother violated the child's rights by denying access by counsel and preventing the child "from being heard in any fashion at a hearing regarding her own welfare."