Thompson v. UCBR - Commonwealth Court - September 5, 22008 - unreported memorandum decision
http://www.courts.state.pa.us/OpPosting/CWealth/out/294CD08_9-5-08.pdf
Unsatisfactory job performance does not necessarily disqualify a claimant for benefits because incompetence, inexperience or inability to do the job does not amount to willful misconduct. Geslao v. UCBR, 519 A.2d 1096, 1097 (Pa. Cmwlth. 1987). In this regard, “a finding that a claimant has worked to the best of his ability negates a conclusion of willful misconduct.” Norman Ashton Klinger & Associates, P.C. v. UCBR, 561 A.2d 841, 843 (Pa. Cmwlth. 1989).
However, contrary to Claimant’s assertion, a claimant’s failure to work to the best of his ability can constitute willful misconduct. Specifically, this Court has explained:
When...an employee’s on the job performance is below the level of his or her ability and this conduct continues over a period of time despite the employee being aware of it as such, it is considered a conscious or careless disregard of the employer’s interest and constitutes willful misconduct. Younes v. UCBR, 467 A.2d 1227, 1228 (Pa. Cmwlth. 1983).
Further, “a showing of actual intent to wrong the Employer is not required. Claimant’s conscious indifference to his employment duties is enough to support a finding of willful misconduct.” Cullison v. UCBR, 444 A.2d 1330, 1331 (Pa. Cmwlth. 1982).
We reject Claimant’s assertion that the Board incorrectly focused on whether Claimant worked to the best of his ability. This standard has a foundation in our precedent. Not working to the best of a person’s ability contains the element of intentionality that rises to willful misconduct if the person is capable of performing the job properly but does not do so.
Friday, September 05, 2008
UC - willful misconduct - sleeping on the job
Dolan v. UCBR - Commonwealth Court - Septeem ger 5, 2008 - unreported memorandum decision
http://www.courts.state.pa.us/OpPosting/CWealth/out/718CD08_9-5-08.pdf
The Court has repeatedly held that sleeping on the job is “prima facie an act of willful misconduct.” Biggs v. UCBR, 443 A.2d 1204, 1205 (Pa. Cmwlth. 1982). Accord Kelley v. UCBR, 429 A.2d 1227 (Pa. Cmwlth. 1981); Ragland v. UCBR, 428 A.2d 1019 (Pa. Cmwlth. 1981); Johnson v. UCBR, 420 A.2d 794 (Pa. Cmwlth. 1980); Markley v. UCBR, 407 A.2d 144 (Pa. Cmwlth. 1979); UCBR v. Simone, 355 A.2d 614 (Pa. Cmwlth. 1976).
Thus, where an employer proves a claimant slept on the job, or a claimant admits he slept on the job, a prima facie case of willful misconduct is proven....As noted above, the record supports the Board’s finding Claimant fell asleep while driving. We agree
Claimant actions constituted willful misconduct, irrespective of whether an ensuing accident and damage to the employer's truck was intentional under Myers v. UCBR, 533 Pa. 373, 625 A.2d 622 (1993) (an employee’s involvement in three accidents in six-month period was, at most, the result of negligence rather than intentional or deliberate conduct; negligent conduct does not equate to willful misconduct for unemployment compensation purposes) and Finch v. UCBR, 692 A.2d 619 (Pa. Cmwlth. 1997)
http://www.courts.state.pa.us/OpPosting/CWealth/out/718CD08_9-5-08.pdf
The Court has repeatedly held that sleeping on the job is “prima facie an act of willful misconduct.” Biggs v. UCBR, 443 A.2d 1204, 1205 (Pa. Cmwlth. 1982). Accord Kelley v. UCBR, 429 A.2d 1227 (Pa. Cmwlth. 1981); Ragland v. UCBR, 428 A.2d 1019 (Pa. Cmwlth. 1981); Johnson v. UCBR, 420 A.2d 794 (Pa. Cmwlth. 1980); Markley v. UCBR, 407 A.2d 144 (Pa. Cmwlth. 1979); UCBR v. Simone, 355 A.2d 614 (Pa. Cmwlth. 1976).
Thus, where an employer proves a claimant slept on the job, or a claimant admits he slept on the job, a prima facie case of willful misconduct is proven....As noted above, the record supports the Board’s finding Claimant fell asleep while driving. We agree
Claimant actions constituted willful misconduct, irrespective of whether an ensuing accident and damage to the employer's truck was intentional under Myers v. UCBR, 533 Pa. 373, 625 A.2d 622 (1993) (an employee’s involvement in three accidents in six-month period was, at most, the result of negligence rather than intentional or deliberate conduct; negligent conduct does not equate to willful misconduct for unemployment compensation purposes) and Finch v. UCBR, 692 A.2d 619 (Pa. Cmwlth. 1997)
UC- voluntary retirement - pre-retirement termination
Port Authority v. UCBR - Commonwealth Court - September 4, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/193CD08_9-4-08.pdf
Claimants' employment was terminated; they did not quit their jobs - Following the decisions in Amado v. UCBR, 110 A.2d 807 (Pa. Super. 1955) and PECO Energy Co. v. UCBR, 682 A.2d 40 (Pa. Cmwlth. 1996, and distinguishing that in Davila v. UCBR, 926 A.2d 1287 (Pa. Cmwlth. 2007), the court held that where the employer discharged claimants before their designated retirement dates in a deferred retirement option plan (DROP), the claimants "are considered to have been discharged until such time as those periods expire, and after which time they are considered to have voluntarily quit."
Under the DROP program, the claimants submitted their resignations but continued to work, by agreement with the employer, which had the right to discharge the claimants at any time. However, "such resignations and participation were not sufficient to waive their right to unemployment compensation.....[U]nder Section 701 of the Law, 43 P.S. § 861, employees cannot agree to waive their unemployment compensation benefits. Were we to accept employer’s argument, well-counseled employers would simply ask each new hire to resign effective his first day of work and select a period during which he requested to continue work. Employer could then keep the employee at its leisure, until it unilaterally decided it no longer wished to employ him, at which point it would “retire” him, and such “retirement” would be considered a voluntary quit. Such a scheme subverts the intention of the Law."
"Although Claimants tendered resignations, which purported to be effective as of February 2003, employer invited them to request a period during which they would continue to work, and employer then continued to employ Claimants during this selected period, after the purported effective date of Claimants’ resignations. Under these facts, it is clear that Claimants’ resignations were to be effective at the end of their DROP periods. Therefore, pursuant to Amado and PECO, the Board did not err in determining that, during the time prior to the expiration of their DROP periods, Claimants’ unemployment should be considered involuntary, and analyzed under Section 402(e)"
Claimants are not at fault for the unemployment under Sec. 3 - The court also rejected the employer argument that claimants should be disqualified under Sec. 3 of the UC Law. Claimants were clearly willing and available to continue working had employer not required them to stop. We do not view such participation [in the DROP program] as the sort of culpability upon which this Court has relied in the cases employer cited dealing with Section 3. Employment in Pennsylvania is usually considered to be at-will. Even assuming that claimants had a right to continued employment, which they somehow relinquished by entering into the DROP program, such relinquishment would not be fault of their own sufficient to deny benefits when employer subsequently discharged them.
UC is not a means-tested program - The court rejected the employer's argument that benefits should not be awarded because claimants are not "subject to econonic hardship. Even though the UC law is meant to relieve the "economic hardship of sudden unemployment and provide temporary assistance for the resulting economic burden,” there is "no authority for the proposition that unemployment compensation benefits are, or should be, means-tested, or that only claimants who will be impoverished may receive benefits."
http://www.courts.state.pa.us/OpPosting/CWealth/out/193CD08_9-4-08.pdf
Claimants' employment was terminated; they did not quit their jobs - Following the decisions in Amado v. UCBR, 110 A.2d 807 (Pa. Super. 1955) and PECO Energy Co. v. UCBR, 682 A.2d 40 (Pa. Cmwlth. 1996, and distinguishing that in Davila v. UCBR, 926 A.2d 1287 (Pa. Cmwlth. 2007), the court held that where the employer discharged claimants before their designated retirement dates in a deferred retirement option plan (DROP), the claimants "are considered to have been discharged until such time as those periods expire, and after which time they are considered to have voluntarily quit."
Under the DROP program, the claimants submitted their resignations but continued to work, by agreement with the employer, which had the right to discharge the claimants at any time. However, "such resignations and participation were not sufficient to waive their right to unemployment compensation.....[U]nder Section 701 of the Law, 43 P.S. § 861, employees cannot agree to waive their unemployment compensation benefits. Were we to accept employer’s argument, well-counseled employers would simply ask each new hire to resign effective his first day of work and select a period during which he requested to continue work. Employer could then keep the employee at its leisure, until it unilaterally decided it no longer wished to employ him, at which point it would “retire” him, and such “retirement” would be considered a voluntary quit. Such a scheme subverts the intention of the Law."
"Although Claimants tendered resignations, which purported to be effective as of February 2003, employer invited them to request a period during which they would continue to work, and employer then continued to employ Claimants during this selected period, after the purported effective date of Claimants’ resignations. Under these facts, it is clear that Claimants’ resignations were to be effective at the end of their DROP periods. Therefore, pursuant to Amado and PECO, the Board did not err in determining that, during the time prior to the expiration of their DROP periods, Claimants’ unemployment should be considered involuntary, and analyzed under Section 402(e)"
Claimants are not at fault for the unemployment under Sec. 3 - The court also rejected the employer argument that claimants should be disqualified under Sec. 3 of the UC Law. Claimants were clearly willing and available to continue working had employer not required them to stop. We do not view such participation [in the DROP program] as the sort of culpability upon which this Court has relied in the cases employer cited dealing with Section 3. Employment in Pennsylvania is usually considered to be at-will. Even assuming that claimants had a right to continued employment, which they somehow relinquished by entering into the DROP program, such relinquishment would not be fault of their own sufficient to deny benefits when employer subsequently discharged them.
UC is not a means-tested program - The court rejected the employer's argument that benefits should not be awarded because claimants are not "subject to econonic hardship. Even though the UC law is meant to relieve the "economic hardship of sudden unemployment and provide temporary assistance for the resulting economic burden,” there is "no authority for the proposition that unemployment compensation benefits are, or should be, means-tested, or that only claimants who will be impoverished may receive benefits."
Thursday, September 04, 2008
UC - late appeal - low IQ, illiteracy
Dull v. UCBR - Commonwealth Court - September 3, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/679CD08_9-4-08.pdf
The claimant appealed in October from a referee decision issued in April. The court rejected the appeal, holding against the claimant on her arguments that a) there was no proof of mailing; b) she is incompetent and has an IQ of 76; c) the failure of the UCBR to make a provision for her mental deficiency/illiteracy constitutes an administrative breakdown that warrants allowing an appeal nunc pro tunc.
The court said the the mailbox rule did not apply, since there was evidence in the administrative record that the decision was, indeed, mailed to her. "Thus neither the employer nor administrative officials bear the burden of presenting additional affirmative evidence, but the burden falls on Claimant to prove her allegations." She did not prove that the referee decision was not delivered to her. She "could have have someone read her mail had she chosen to do so." It was her "own negligence" in this regard and not her low IQ that resulted in the late appeal.
The court distinguished Lewis v. UCBR, 814 A.2d 829 (Pa. Cmwlth. 2003), where the court allowed a late appeal for a claimant who, despite an IQ similar to the claimant's here, made a "diligent effort to file her appeal in a timely manner, soliciting help where needed and communicating with the UCSC throughout the process. Here the Claimant exercised no diligence at all....We will not hold the UCBR or related agencies responsible for accommodating illiteracy where claimants fail to disclose their illiteracy and fail to make reasonable efforets to obtain appropriate assistance."
http://www.courts.state.pa.us/OpPosting/CWealth/out/679CD08_9-4-08.pdf
The claimant appealed in October from a referee decision issued in April. The court rejected the appeal, holding against the claimant on her arguments that a) there was no proof of mailing; b) she is incompetent and has an IQ of 76; c) the failure of the UCBR to make a provision for her mental deficiency/illiteracy constitutes an administrative breakdown that warrants allowing an appeal nunc pro tunc.
The court said the the mailbox rule did not apply, since there was evidence in the administrative record that the decision was, indeed, mailed to her. "Thus neither the employer nor administrative officials bear the burden of presenting additional affirmative evidence, but the burden falls on Claimant to prove her allegations." She did not prove that the referee decision was not delivered to her. She "could have have someone read her mail had she chosen to do so." It was her "own negligence" in this regard and not her low IQ that resulted in the late appeal.
The court distinguished Lewis v. UCBR, 814 A.2d 829 (Pa. Cmwlth. 2003), where the court allowed a late appeal for a claimant who, despite an IQ similar to the claimant's here, made a "diligent effort to file her appeal in a timely manner, soliciting help where needed and communicating with the UCSC throughout the process. Here the Claimant exercised no diligence at all....We will not hold the UCBR or related agencies responsible for accommodating illiteracy where claimants fail to disclose their illiteracy and fail to make reasonable efforets to obtain appropriate assistance."
Tuesday, September 02, 2008
social security - disability - duty to consider all evidence - inconsistent findings
Stover v. Astrue - ED Pa. - August 28, 2008
http://www.paed.uscourts.gov/documents/opinions/08D1025P.pdf
The court remanded the case after finding that the ALJ failed to consider all of the medical evidence of record and that his findings with respect to certain medical evidence pertaining to Plaintiff’s mood disorder are irreconcilably inconsistent.
Specifically, the ALJ (a) failed to consider the entire medical opinion of the state agency psychologist, (b) the ALJ appears to have made two different credibility findings as to the consultative physician’s medical opinions concerning plaintiff’s mental impairments, and (c) the ALJ mistakenly represents that certain nonexertional limitations were posed to the VE in a hypothetical question.
These omissions and errors concern medical evidence that is probative of the question before the ALJ at Step Four: whether Plaintiff could return to her past relevant work as a parking lot cashier. Due to these omissions and errors, the court finds that the ALJ’s decision is not supported by substantial evidence.
http://www.paed.uscourts.gov/documents/opinions/08D1025P.pdf
The court remanded the case after finding that the ALJ failed to consider all of the medical evidence of record and that his findings with respect to certain medical evidence pertaining to Plaintiff’s mood disorder are irreconcilably inconsistent.
Specifically, the ALJ (a) failed to consider the entire medical opinion of the state agency psychologist, (b) the ALJ appears to have made two different credibility findings as to the consultative physician’s medical opinions concerning plaintiff’s mental impairments, and (c) the ALJ mistakenly represents that certain nonexertional limitations were posed to the VE in a hypothetical question.
These omissions and errors concern medical evidence that is probative of the question before the ALJ at Step Four: whether Plaintiff could return to her past relevant work as a parking lot cashier. Due to these omissions and errors, the court finds that the ALJ’s decision is not supported by substantial evidence.
Friday, August 29, 2008
contracts - arbitration clause - mutual assent
Morales v. Sun Constructors, Inc. - Third Circuit - August 28, 2008 (2-1 decision)
http://www.ca3.uscourts.gov/opinarch/073806p.pdf
Held: An arbitration clause in an employment contract is enforceable even where one party does not understand the contract because he "is ignorant of the language in which the agreement is written," where there is no claim is fraud or other misleading conduct. The employer undertook to have a bilingual applicant who was also present translate the agreement to plaintiff, but "he did not specifically explain the arbitration clause" and the employer representative only explained it in English, even though he was aware that the plaintiff did not understand English.
The court purported to apply general Pennsylvania contract principles, which require only an outward expression of mutual assent, and not the parties' subjective intent - an objective theory of contract formation, which applies even when one party is illiterate or ignorant of the language in which the document is written. Every contracting party has the duty “to learn and know the contents of a contract before he signs and delivers it”). Arbitration agreements in the employment context are not exempt from this principle. In the absence of fraud or misrepresentation, which are not alleged here, a contract is enforceable even where one party cannot read, write, speak or under the language of the contract. "It was [the plaintiff's] obligation to ensure he understood the Agreement before signing."
The court held that a "heightened 'knowing and voluntary' standard to arbitration agreements would be inconsistent with the Federal Arbitration Act," 9 USC sec. 1 et seq., rejecting a claim that such a standard should apply because of the relinquishment of a valuable right - a court hearing.
dissenting opinion
The dissent agreed about the heightened standard but disagreed on the contractual issues of mutual assent, which it said should be considered separately and independently of any question of fraud. The dissent believed that the "gravamen of this case is that [the employer] took upon itself the task of translating the agreement for plaintiff and, in doing so, failed to convey the entire contents of the agreement," resulting in a "lack of mutual assent."
It was undisputed that (1) The plaintiff was unable to read the contract; (2) The employer assigned a coworker who himself was not fluent in English to translate the document for plaintiff; (3) the co-worker, in translating the document, neglected to translate the arbitration clauses; and (4) as a result of the incomplete translation, plaintiff was not aware that the agreement contained an arbitration clause.
The dissent found that the applicant's lack of understanding of the contract terms was not the result of his negligence, but rather the employer's failure to properly translate the terms, a task which the employer voluntarily assumed. The employer "made the decision to insert itself" between the applicant and the contract, thus creating a situation where the lack of consent could and did occur. The employer's translation of the contact terms was incorrect and incomplete, thus negating the applicant's assent.
http://www.ca3.uscourts.gov/opinarch/073806p.pdf
Held: An arbitration clause in an employment contract is enforceable even where one party does not understand the contract because he "is ignorant of the language in which the agreement is written," where there is no claim is fraud or other misleading conduct. The employer undertook to have a bilingual applicant who was also present translate the agreement to plaintiff, but "he did not specifically explain the arbitration clause" and the employer representative only explained it in English, even though he was aware that the plaintiff did not understand English.
The court purported to apply general Pennsylvania contract principles, which require only an outward expression of mutual assent, and not the parties' subjective intent - an objective theory of contract formation, which applies even when one party is illiterate or ignorant of the language in which the document is written. Every contracting party has the duty “to learn and know the contents of a contract before he signs and delivers it”). Arbitration agreements in the employment context are not exempt from this principle. In the absence of fraud or misrepresentation, which are not alleged here, a contract is enforceable even where one party cannot read, write, speak or under the language of the contract. "It was [the plaintiff's] obligation to ensure he understood the Agreement before signing."
The court held that a "heightened 'knowing and voluntary' standard to arbitration agreements would be inconsistent with the Federal Arbitration Act," 9 USC sec. 1 et seq., rejecting a claim that such a standard should apply because of the relinquishment of a valuable right - a court hearing.
dissenting opinion
The dissent agreed about the heightened standard but disagreed on the contractual issues of mutual assent, which it said should be considered separately and independently of any question of fraud. The dissent believed that the "gravamen of this case is that [the employer] took upon itself the task of translating the agreement for plaintiff and, in doing so, failed to convey the entire contents of the agreement," resulting in a "lack of mutual assent."
It was undisputed that (1) The plaintiff was unable to read the contract; (2) The employer assigned a coworker who himself was not fluent in English to translate the document for plaintiff; (3) the co-worker, in translating the document, neglected to translate the arbitration clauses; and (4) as a result of the incomplete translation, plaintiff was not aware that the agreement contained an arbitration clause.
The dissent found that the applicant's lack of understanding of the contract terms was not the result of his negligence, but rather the employer's failure to properly translate the terms, a task which the employer voluntarily assumed. The employer "made the decision to insert itself" between the applicant and the contract, thus creating a situation where the lack of consent could and did occur. The employer's translation of the contact terms was incorrect and incomplete, thus negating the applicant's assent.
child abuse - expungement - failure to get mental health treatment
W.C. v. DPW - Commonwealth Court - August 29, 2008 - UNREPORTED
http://www.courts.state.pa.us/OpPosting/CWealth/out/1918CD07_8-29-08.pdf
Failure to get mental health treatment for child justified agency's refusal to expunge indicated report of abuse.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1918CD07_8-29-08.pdf
Failure to get mental health treatment for child justified agency's refusal to expunge indicated report of abuse.
Thursday, August 21, 2008
consumer - FDCPA - letter from "legal department" with no attorneys
Rosenau et al. v. Unifund Corp. - Third Circuit - August 21, 2008
http://www.ca3.uscourts.gov/opinarch/073019p.pdf
1. Sec. 1692e(3) - Where there are no attorneys in a debt collector's "Legal Department," a collection letter signed by the "Legal Department" violates FCCPA sec. 1692e(3), which prohibits the "false representation or implication that...any communcation is from an attorney," even where the letter was not on law firm letterhead or signed by an attorney.
A "least sophisticated debtor" could have reasonably inferred that the Legal Department has "attorneys who played a role in writing or sending the letter." The fact that the letter says that it comes from a "debt collector" doesn't change this result. The terms "attorney" and "debt collector" are not mutually exclusive. Nor does it matter that the letter talks about a possible referral "to an attorney in your area"; lawyers commonly refer cases to other lawyers who practice in the geographical area where a debtor is located.
2. Sec. 1692e(10) - The court rejected plaintiff's argument that the use of Legal Department violated the catchall provision of the FDCAP, sec. 1692e(10), which prohibits the use of "any false representations or deceptive means to collect...any debt." It rejected an FTC advisory letter on the issue, holding that it was not entitled to deference except to the extent that its logic was persuasive. The court found that there is no clear objective standard that could be applied on this issue, since different legal departments have difference functions and emphases. However, the court remanded the case for further factual development, since the lower court's ruling was the result of a judgment on the pleadings, which is "inappropriate" for the resolution of a factual issue.
http://www.ca3.uscourts.gov/opinarch/073019p.pdf
1. Sec. 1692e(3) - Where there are no attorneys in a debt collector's "Legal Department," a collection letter signed by the "Legal Department" violates FCCPA sec. 1692e(3), which prohibits the "false representation or implication that...any communcation is from an attorney," even where the letter was not on law firm letterhead or signed by an attorney.
A "least sophisticated debtor" could have reasonably inferred that the Legal Department has "attorneys who played a role in writing or sending the letter." The fact that the letter says that it comes from a "debt collector" doesn't change this result. The terms "attorney" and "debt collector" are not mutually exclusive. Nor does it matter that the letter talks about a possible referral "to an attorney in your area"; lawyers commonly refer cases to other lawyers who practice in the geographical area where a debtor is located.
2. Sec. 1692e(10) - The court rejected plaintiff's argument that the use of Legal Department violated the catchall provision of the FDCAP, sec. 1692e(10), which prohibits the use of "any false representations or deceptive means to collect...any debt." It rejected an FTC advisory letter on the issue, holding that it was not entitled to deference except to the extent that its logic was persuasive. The court found that there is no clear objective standard that could be applied on this issue, since different legal departments have difference functions and emphases. However, the court remanded the case for further factual development, since the lower court's ruling was the result of a judgment on the pleadings, which is "inappropriate" for the resolution of a factual issue.
Wednesday, August 20, 2008
consumer - credit card case - standing, pleading, etc.
Remit v. Miller - C.P. Centre County - August 15, 2008
The court upheld the POs of the defendant (represented by Carl Mollica of MidPenn) in a credit card case.
attachment of writing
The court upheld defendant's objection that plaintiff violated Pa. RCP 1019(i) by failing to attach a copy of the writing on which its claim was based, stating that in "credit card suit, a creditor must 'attach the writings which assertedly establish [the creditor’s] right to a judgment.' " Atlantic Credit and Finance, Inc. v. Giuliani, 829 A.2d 340, 345 (Pa. Super. 2003).
standing - chain of ownership must be attached to complaint
Plaintiff claimed that it had standing to pursue the claim against plaintiff by virtue of an assignment, but it did not attach any writing assignment to the complaint. The court said that several Common Pleas cases hold that an assignment must be attached to the Complaint. The Centre County case of Flanagan v. Hill, Fitzgerald and Erie Insurance Group, 2006 PA.D.&.C. 263 (Kistler, J.) holds that Pa.R.C.P. 1019 requires that an assignment be attached to a complaint. This holding is in accord with Worldwide Asset Purchasing, LLC v. Stern, 153 Pittsburgh Legal J. 111, 112 (C.P. Allegheny 2004), which specifically addressed assignments in credit card cases. This Court concurs with these holdings and determines Pa.R.C.P. 1019 requires that, in a credit card case based upon an assignment, the relevant assignments showing the chain of ownership for the account from originator to current holder must be attached to the Complaint."
lack of specificity of pleading amount owed
A bare conclusory affidavit claiming an amount owed is insufficient in a credit card case. The court followed the holding in Marine Bank v. Orlando, 25 D.&.C.3d 264 (C.P. Erie 1982), which sustained POs for failure to comply with Pa.R.C.P. 1019(f), holding that “[a] defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what he must contest.” Id. at 268. This information must be included in the pleading for it to comply with Pa.R.C.P. 1019(f)."
The court also held that plaintiff was entitled to know specific charges and a specific accounting information to allow the defendant to calculate what she owes and how that amount was reached. Plaintiff must provide a breakdown of charges, payments, items purchased, and interest such that defendant can formulate a response or assert a counterclaim or a defense.
The court cited with approval the holding in Premium Assignment Corp. v. City Cab Company, Inc., 2005 WL 1706976, 2005 LEXIS 311 (C.P. Philadelphia 2005), for the proposition that “[t]he specific calculations are necessary pieces of information that are known by the plaintiff and are relatively simple to aver. The addition of those specific calculations will enable the defendant to prepare its defense and address the issues without forcing the defendant to engage in unnecessary discovery.” Defendant needs this information both to be able to fully and accurately answer the Complaint, to make any necessary counterclaims or defenses, and to avoid unnecessary discovery.
The court upheld the POs of the defendant (represented by Carl Mollica of MidPenn) in a credit card case.
attachment of writing
The court upheld defendant's objection that plaintiff violated Pa. RCP 1019(i) by failing to attach a copy of the writing on which its claim was based, stating that in "credit card suit, a creditor must 'attach the writings which assertedly establish [the creditor’s] right to a judgment.' " Atlantic Credit and Finance, Inc. v. Giuliani, 829 A.2d 340, 345 (Pa. Super. 2003).
standing - chain of ownership must be attached to complaint
Plaintiff claimed that it had standing to pursue the claim against plaintiff by virtue of an assignment, but it did not attach any writing assignment to the complaint. The court said that several Common Pleas cases hold that an assignment must be attached to the Complaint. The Centre County case of Flanagan v. Hill, Fitzgerald and Erie Insurance Group, 2006 PA.D.&.C. 263 (Kistler, J.) holds that Pa.R.C.P. 1019 requires that an assignment be attached to a complaint. This holding is in accord with Worldwide Asset Purchasing, LLC v. Stern, 153 Pittsburgh Legal J. 111, 112 (C.P. Allegheny 2004), which specifically addressed assignments in credit card cases. This Court concurs with these holdings and determines Pa.R.C.P. 1019 requires that, in a credit card case based upon an assignment, the relevant assignments showing the chain of ownership for the account from originator to current holder must be attached to the Complaint."
lack of specificity of pleading amount owed
A bare conclusory affidavit claiming an amount owed is insufficient in a credit card case. The court followed the holding in Marine Bank v. Orlando, 25 D.&.C.3d 264 (C.P. Erie 1982), which sustained POs for failure to comply with Pa.R.C.P. 1019(f), holding that “[a] defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what he must contest.” Id. at 268. This information must be included in the pleading for it to comply with Pa.R.C.P. 1019(f)."
The court also held that plaintiff was entitled to know specific charges and a specific accounting information to allow the defendant to calculate what she owes and how that amount was reached. Plaintiff must provide a breakdown of charges, payments, items purchased, and interest such that defendant can formulate a response or assert a counterclaim or a defense.
The court cited with approval the holding in Premium Assignment Corp. v. City Cab Company, Inc., 2005 WL 1706976, 2005 LEXIS 311 (C.P. Philadelphia 2005), for the proposition that “[t]he specific calculations are necessary pieces of information that are known by the plaintiff and are relatively simple to aver. The addition of those specific calculations will enable the defendant to prepare its defense and address the issues without forcing the defendant to engage in unnecessary discovery.” Defendant needs this information both to be able to fully and accurately answer the Complaint, to make any necessary counterclaims or defenses, and to avoid unnecessary discovery.
Pennsylvania Constitution - limitation on Edmunds analysis
Jubilirer v. Rendell - Pa. Supreme Court - August 19, 2008
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2008mo.pdf
This case involves interpreting Article IV, Section 16 of the Pennsylvania Constitution, which permits the Governor, when presented with an appropriation bill, to delete portions of the language defining a specific appropriation without disapproving the funds with which the language is associated.
It provides that the "Governor shall have power to disapprove of any item or items of any bill, making appropriations of money, embracing distinct items, and the part or parts of the bill approved shall be the law, and the item or items of appropriation disapproved shall be void, unless re-passed according to the rules and limitations prescribed for the passage of other bills over the Executive veto." PA. CONST. art. IV, § 16.
In Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 1991), the court directed litigants to brief and analyze: (1) the relevant text of the provision of the Pennsylvania Constitution; (2) the history of the provision, including Pennsylvania caselaw; (3) relevant caselaw from other jurisdictions; and (4) policy considerations). The court said that “it is both important and necessary that we undertake an independent analysis of the Pennsylvania Constitution, each time a provision of that fundamental document is implicated.” Id. at 894-95.
The court limited that analytical model in the instant case, holding that only where a matter calls for "comparative constitutional analysis" of similar state and federal constitutional provisions is Edmunds analysis appropriate.
In cases involving an interpretation of a provision of the Pennsylvania Constitution that lacks a counterpart in the U.S. Constitution , the court has "not engaged in the four-factor analysis set forth in Edmunds....because there is no federal constitutional text or federal caselaw to consider."
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2008mo.pdf
This case involves interpreting Article IV, Section 16 of the Pennsylvania Constitution, which permits the Governor, when presented with an appropriation bill, to delete portions of the language defining a specific appropriation without disapproving the funds with which the language is associated.
It provides that the "Governor shall have power to disapprove of any item or items of any bill, making appropriations of money, embracing distinct items, and the part or parts of the bill approved shall be the law, and the item or items of appropriation disapproved shall be void, unless re-passed according to the rules and limitations prescribed for the passage of other bills over the Executive veto." PA. CONST. art. IV, § 16.
In Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 1991), the court directed litigants to brief and analyze: (1) the relevant text of the provision of the Pennsylvania Constitution; (2) the history of the provision, including Pennsylvania caselaw; (3) relevant caselaw from other jurisdictions; and (4) policy considerations). The court said that “it is both important and necessary that we undertake an independent analysis of the Pennsylvania Constitution, each time a provision of that fundamental document is implicated.” Id. at 894-95.
The court limited that analytical model in the instant case, holding that only where a matter calls for "comparative constitutional analysis" of similar state and federal constitutional provisions is Edmunds analysis appropriate.
In cases involving an interpretation of a provision of the Pennsylvania Constitution that lacks a counterpart in the U.S. Constitution , the court has "not engaged in the four-factor analysis set forth in Edmunds....because there is no federal constitutional text or federal caselaw to consider."
Monday, August 18, 2008
mortgage foreclosure - pleading - lack of knowledge
LaSalle Bank v. Youngberg - CP Centre County - August 12, 2008
The court denied plaintiff/mortgagee's motion for summary judgment on its complaint and defendant's answer, which claimed "lack of knowledge" about a) the assignment of the mortgage note, b) the amount due on the mortgage, and c) plaintiff's request for attorney fees.
The court adopted the reasong in Cercone v. Cercone, 386 A.2d 1 (1978), which held that the court must examine the entire pleading in determining whether the responding party must have had knowledge of certain information that was generally denied. While it is well settled that an inadequate denial is unacceptable and may if fact be an admission, that is only the case where it is clear that the defendants have adequate knowledge or that the means of obtaining information are within the defendants’ control.
assignment - The court held that it would not "require the debtor to consult public records records to verify the transfer of a mortgage note from one party to another, particularly when such information is much more readily available to the creditor and the creditor has not provided the verification until much later in the course of the litigation."
amount due - The actual amount due on a mortgage varies over time due to fees assessed and the interest rate. "The Court will not require Defendants, who have incomplete information, to conduct pre-answer discovery to avoid having their otherwise legitimate denials deemed answers by the Court. This shifting of the burden from Plaintiff to Defendant is unacceptable and without basis in the Pennsylvania Rules of Civil Procedure or in case law. Furthermore, Defendants cannot be required to accept the assertion of what costs have been incurred by the Plaintiff without conducting discovery relating to costs. Defendants’ denial of this information, to the extent it was denied in their Answer, was not an admission."
attorney fees - The "assessment of attorney’s fees, is similar to Defendants’ denial...that Defendant cannot be required to accept the assertion that Plaintiff has incurred attorney’s fees amounting to the amount listed in the Complaint. Defendants may challenge the reasonableness of attorney’s fees, including the legal enforceability of attorney’s fees clauses in Mortgage agreements. The Court will analyze attorney’s fees claims under the analysis set forth in Federal Land Bank of Baltimore v. Fetner, 410 A.2d 344 (Pa.Super. 1979), applying a reasonableness test in examining the complexity of the litigation and the relation between the amount requested in attorney’s fees and the amount of the principal due."
In sum, applying the Cercone analysis to the present case, the Court finds that Defendants admitted the allegations to which they had knowledge and denied those in which they did not have knowledge.The Court determines the record does not clearly show that no genuine issues of material fact exist and that Plaintiff is entitled to judgment as a matter of law."
The court denied plaintiff/mortgagee's motion for summary judgment on its complaint and defendant's answer, which claimed "lack of knowledge" about a) the assignment of the mortgage note, b) the amount due on the mortgage, and c) plaintiff's request for attorney fees.
The court adopted the reasong in Cercone v. Cercone, 386 A.2d 1 (1978), which held that the court must examine the entire pleading in determining whether the responding party must have had knowledge of certain information that was generally denied. While it is well settled that an inadequate denial is unacceptable and may if fact be an admission, that is only the case where it is clear that the defendants have adequate knowledge or that the means of obtaining information are within the defendants’ control.
assignment - The court held that it would not "require the debtor to consult public records records to verify the transfer of a mortgage note from one party to another, particularly when such information is much more readily available to the creditor and the creditor has not provided the verification until much later in the course of the litigation."
amount due - The actual amount due on a mortgage varies over time due to fees assessed and the interest rate. "The Court will not require Defendants, who have incomplete information, to conduct pre-answer discovery to avoid having their otherwise legitimate denials deemed answers by the Court. This shifting of the burden from Plaintiff to Defendant is unacceptable and without basis in the Pennsylvania Rules of Civil Procedure or in case law. Furthermore, Defendants cannot be required to accept the assertion of what costs have been incurred by the Plaintiff without conducting discovery relating to costs. Defendants’ denial of this information, to the extent it was denied in their Answer, was not an admission."
attorney fees - The "assessment of attorney’s fees, is similar to Defendants’ denial...that Defendant cannot be required to accept the assertion that Plaintiff has incurred attorney’s fees amounting to the amount listed in the Complaint. Defendants may challenge the reasonableness of attorney’s fees, including the legal enforceability of attorney’s fees clauses in Mortgage agreements. The Court will analyze attorney’s fees claims under the analysis set forth in Federal Land Bank of Baltimore v. Fetner, 410 A.2d 344 (Pa.Super. 1979), applying a reasonableness test in examining the complexity of the litigation and the relation between the amount requested in attorney’s fees and the amount of the principal due."
In sum, applying the Cercone analysis to the present case, the Court finds that Defendants admitted the allegations to which they had knowledge and denied those in which they did not have knowledge.The Court determines the record does not clearly show that no genuine issues of material fact exist and that Plaintiff is entitled to judgment as a matter of law."
Wednesday, August 13, 2008
disability - hearing loss - medical criteria - proposed regulations
http://edocket.access.gpo.gov/2008/pdf/E8-18718.pdf
SUMMARY: We propose to revise the criteria in the Listing of Impairments (the listings) that we use to evaluate claims involving hearing loss. We apply these criteria when you claim benefits based on disability under title II and title XVI of the Social Security Act (the Act). The proposed revisions reflect current medical knowledge, treatment, and methods of evaluating hearing loss, as well as our adjudicative experience since the publication of the current rules.
DATES: To be sure that your comments are considered, we must receive them by October 14, 2008.
SUMMARY: We propose to revise the criteria in the Listing of Impairments (the listings) that we use to evaluate claims involving hearing loss. We apply these criteria when you claim benefits based on disability under title II and title XVI of the Social Security Act (the Act). The proposed revisions reflect current medical knowledge, treatment, and methods of evaluating hearing loss, as well as our adjudicative experience since the publication of the current rules.
DATES: To be sure that your comments are considered, we must receive them by October 14, 2008.
Tuesday, August 12, 2008
admin. law - appeal - frivolous appeal - attorney fees
Reinhart v. Bureau of Driver Licensing - Commonwealth Court - August 12, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/2351CD07_8-12-08.pdf
The court upheld the trial court's decision in favor of the driver, whose license DOT wanted to suspend for his alleged refusal to submit to chemical testing by failing provide adequate breath samples, after being arrested for DUI.
The court also awarded attorney fees under Pa. RAP 2744, because DOT's appeal was found to be frivolous. It was based entirely on its own version of the facts, which were contrary those found by the trial court - including an express determination that the licensee provided two sufficient breath samples, rejecting contradictory testimony from DOT. The lower court findings, including about credibility, were held to be well supported by substantial evidence.
On appeal, DOT argued that it was "undisputed" that the licensee did not provide sufficient breath for a proper test, in spite of the express lower court findings to the contrary. "The court must determine the issues under the facts properly found by the trial court and not under the testimony that DOT prefers."
Pa. RAP 2744 states that an appellate court may award as further costs and damages as may be just a reasonable counsel fee "if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule." Pa. R.A.P. 2744.
A frivolous appeal is one in which “no justifiable question has been presented and ... [that] is readily recognizable as devoid of merit in that there is little prospect of success”....A frivolous appeal is one lacking any basis in law or fact. Basing an appeal solely upon facts which are contrary to the factual findings of the trial court, the sole arbiter of credibility, has been held to be frivolous.
An award of attorney’s fees against a government entity for pursuing a frivolous appeal is not without precedent and is not barred by any kind of immunity.
http://www.courts.state.pa.us/OpPosting/CWealth/out/2351CD07_8-12-08.pdf
The court upheld the trial court's decision in favor of the driver, whose license DOT wanted to suspend for his alleged refusal to submit to chemical testing by failing provide adequate breath samples, after being arrested for DUI.
The court also awarded attorney fees under Pa. RAP 2744, because DOT's appeal was found to be frivolous. It was based entirely on its own version of the facts, which were contrary those found by the trial court - including an express determination that the licensee provided two sufficient breath samples, rejecting contradictory testimony from DOT. The lower court findings, including about credibility, were held to be well supported by substantial evidence.
On appeal, DOT argued that it was "undisputed" that the licensee did not provide sufficient breath for a proper test, in spite of the express lower court findings to the contrary. "The court must determine the issues under the facts properly found by the trial court and not under the testimony that DOT prefers."
Pa. RAP 2744 states that an appellate court may award as further costs and damages as may be just a reasonable counsel fee "if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule." Pa. R.A.P. 2744.
A frivolous appeal is one in which “no justifiable question has been presented and ... [that] is readily recognizable as devoid of merit in that there is little prospect of success”....A frivolous appeal is one lacking any basis in law or fact. Basing an appeal solely upon facts which are contrary to the factual findings of the trial court, the sole arbiter of credibility, has been held to be frivolous.
An award of attorney’s fees against a government entity for pursuing a frivolous appeal is not without precedent and is not barred by any kind of immunity.
UC - voluntary quit - resentment of reprimand
Dunlap v. UCBR - Commonwealth Court - August 12, 2008 - unreported memorandum opinion
http://www.courts.state.pa.us/OpPosting/CWealth/out/320CD08_8-12-08.pdf
Mere disagreement with an employer’s management style or dissatisfaction and resentment of a reprimand does not constitute a necessitous and compelling reason to quit employment. Gioia v. UCBR, 661 A.2d 34 (Pa. Cmwlth. 1995).
http://www.courts.state.pa.us/OpPosting/CWealth/out/320CD08_8-12-08.pdf
Mere disagreement with an employer’s management style or dissatisfaction and resentment of a reprimand does not constitute a necessitous and compelling reason to quit employment. Gioia v. UCBR, 661 A.2d 34 (Pa. Cmwlth. 1995).
UC - appeal - filing by fax - date of receipt
Mountain Home Beagle Media v. UCBR - Commonealth Court - August 12, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/255CD08_8-12-08.pdf
Employer appeal to UCBR had to be filed on or before August 28th. It was properly held to be late where the employer faxed the appeal and UCBR records showed receipt of the appeal ten (10) days after appeal deadline, despite employer's claim that it had faxed the appeal within the time limits.
The party appealing bears the risk of loss in transmission because it chose facsimile as the method of filing. The regulation, 34 Pa. Code § 101.82 (b)(3)(i), says that "If the faxed appeal is received without a legible date of transmission, the filing date will be the date recorded by the Department appeal office, the workforce investment office or the Board when it receives the appeal." (emphasis added)
"The date and time stamp on the sender’s confirmation sheet is simply not reliable to establish the date of filing by fax with the Board of Review....There is no evidence of fraud, administrative breakdown or non-negligent conduct which would permit the appeal to be filed nunc pro tunc. Moreover, as the imprinted date of receipt on the Department’s fax machine indicates that the Department first received Employer’s appeal on September 6, 2007, and such document is legible, such date is deemed the filing date of the appeal. 34 Pa. Code § 101.82(b)(3)(i). Employer assumed the risks inherent in filing an appeal via fax transmission. The Board properly dismissed Employer’s appeal as untimely."
http://www.courts.state.pa.us/OpPosting/CWealth/out/255CD08_8-12-08.pdf
Employer appeal to UCBR had to be filed on or before August 28th. It was properly held to be late where the employer faxed the appeal and UCBR records showed receipt of the appeal ten (10) days after appeal deadline, despite employer's claim that it had faxed the appeal within the time limits.
The party appealing bears the risk of loss in transmission because it chose facsimile as the method of filing. The regulation, 34 Pa. Code § 101.82 (b)(3)(i), says that "If the faxed appeal is received without a legible date of transmission, the filing date will be the date recorded by the Department appeal office, the workforce investment office or the Board when it receives the appeal." (emphasis added)
"The date and time stamp on the sender’s confirmation sheet is simply not reliable to establish the date of filing by fax with the Board of Review....There is no evidence of fraud, administrative breakdown or non-negligent conduct which would permit the appeal to be filed nunc pro tunc. Moreover, as the imprinted date of receipt on the Department’s fax machine indicates that the Department first received Employer’s appeal on September 6, 2007, and such document is legible, such date is deemed the filing date of the appeal. 34 Pa. Code § 101.82(b)(3)(i). Employer assumed the risks inherent in filing an appeal via fax transmission. The Board properly dismissed Employer’s appeal as untimely."
Monday, August 11, 2008
child abuse - expungement - lack of supervision - noaccidental serious injury
Fayette County CYS v. DPW - Cmwlth. Court - 08/11/08 - UNREPORTED MEM. DECISION
http://www.courts.state.pa.us/OpPosting/CWealth/out/310CD08_8-11-08.pdf
The court affrmed DPW's grant of an expungement petition. The case involved the mother leaving a 4-month child alone for 5 minutes, during which time the child got out of a car seat and burned its hand on a nearby heater. The parties stipulated that the mother did not act intentionally.
The court found that mother's acts did not satisfy the legal standard for child abuse. 23 Pa. C.S. sec. 6303(a) requires an "injury that is the result of an intentional act that is committed with disregard of a substantial and unjustifiable risk.” Mother's acts were not intentional, as stipulated by the parties.
Nor did mother's leaving the child alone, under the circumstances, constitute "serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision ...which endangers a child’s life or development or impairs the child’s functioning. 23 Pa. C.S. §6303(b)(1)(iv). The court agreed with DPW that the child was the not the victim of a “prolonged or repeated lack of supervision when he was only left for five minutes and there was no evidence that the child was not cared for properly.
CYS argued that it had established child abuse consisting of a “non-accidental serious physical injury” under 23 Pa. C.S. §6303(b)(1)(i). The court rejected this, appling the rule in P.R. v. DPW, 569 Pa. 123, 801 A.2d 478 (2002), where the Supreme Court held that child abuse was established “upon a showing by the agency, through substantial evidence, that the injury resulted from criminal negligence.”
It defined criminal negligence as follows: A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
"Applying the standard from P.R., Mother’s act or failure to act in this case did not rise to the level of criminal negligence. As the ALJ noted, “[l]eaving the child for a brief (and not prolonged) period of time cannot be construed as a gross deviation from the standard of care that a reasonable person would observe. The mother could not have reasonably believed the child could have extricated himself from the seat and fallen into the heater.” We agree then that Mother’s act or failure to act did not cause a “non-accidental” serious physical injury to subject child."
http://www.courts.state.pa.us/OpPosting/CWealth/out/310CD08_8-11-08.pdf
The court affrmed DPW's grant of an expungement petition. The case involved the mother leaving a 4-month child alone for 5 minutes, during which time the child got out of a car seat and burned its hand on a nearby heater. The parties stipulated that the mother did not act intentionally.
The court found that mother's acts did not satisfy the legal standard for child abuse. 23 Pa. C.S. sec. 6303(a) requires an "injury that is the result of an intentional act that is committed with disregard of a substantial and unjustifiable risk.” Mother's acts were not intentional, as stipulated by the parties.
Nor did mother's leaving the child alone, under the circumstances, constitute "serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision ...which endangers a child’s life or development or impairs the child’s functioning. 23 Pa. C.S. §6303(b)(1)(iv). The court agreed with DPW that the child was the not the victim of a “prolonged or repeated lack of supervision when he was only left for five minutes and there was no evidence that the child was not cared for properly.
CYS argued that it had established child abuse consisting of a “non-accidental serious physical injury” under 23 Pa. C.S. §6303(b)(1)(i). The court rejected this, appling the rule in P.R. v. DPW, 569 Pa. 123, 801 A.2d 478 (2002), where the Supreme Court held that child abuse was established “upon a showing by the agency, through substantial evidence, that the injury resulted from criminal negligence.”
It defined criminal negligence as follows: A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
"Applying the standard from P.R., Mother’s act or failure to act in this case did not rise to the level of criminal negligence. As the ALJ noted, “[l]eaving the child for a brief (and not prolonged) period of time cannot be construed as a gross deviation from the standard of care that a reasonable person would observe. The mother could not have reasonably believed the child could have extricated himself from the seat and fallen into the heater.” We agree then that Mother’s act or failure to act did not cause a “non-accidental” serious physical injury to subject child."
Thursday, August 07, 2008
real property - tax sale - notice
Citimortgage, Inc. v. KDR Investments - Commonwealth Court - August 5, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1270CD07_8-5-08.pdf
Tax sale void because tax claim bureau (TCB) did not give owner required statutory notice. The TCB had attempted to give proper notice to the prior owner, but the new owner (Citimortgage) which had purchased the property at foreclosure sale, clearly did not get proper statutory notice.
proof of three separate notices required -"With respect to tax sales, the Bureau is required to give three separate types of notice: publication at least 30 days prior to the sale; notification to the owner by certified mail at least 30 days prior to the sale; and posting of the property at least ten days prior to the sale....“If any of the three types of notice is defective, the tax sale is void” ....The Bureau bears the burden of proving strict compliance with applicable notice provisions."
due process requires proper notice - "Due process requires that an owner be given notice prior to property being sold at a tax sale. As our Supreme Court has explained: 'Somehow, over the years, taxing authorities have lost sight of the fact that it is a momentous event under the United States and the Pennsylvania Constitutions when a government subjects a citizen’s property to forfeiture for the non-payment of taxes…. The collection of taxes…may not be implemented without due process of law that is guaranteed in the Commonwealth and federal constitutions; and this due process, as we have stated here, requires at a minimum that an owner of land be actually notified by government, if reasonably possible, before his land is forfeited by the state'....Because of these due process concerns, the “[n]otice provisions of the [Tax Sale] Law are to be strictly construed, and there must be strict compliance with such provisions to guard against deprivation of property without due process of law.”
strict compliance with statutory notice provisions required - Section 602(e)(1) of the Tax Sale Law [72 P.S. §5860.692] obligated the Bureau to give notice to the current owner “[a]t least thirty (30) days before the date of the sale, by United States certified mail.” It did not do so. Strict compliance with all notice requirements contained in the Tax Sale Law is an absolute requirement. The Bureau must be able to produce evidence that it gave this notice to the one who owns the property on the day of the tax sale. If the Bureau cannot produce this proof, the tax sale is invalid.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1270CD07_8-5-08.pdf
Tax sale void because tax claim bureau (TCB) did not give owner required statutory notice. The TCB had attempted to give proper notice to the prior owner, but the new owner (Citimortgage) which had purchased the property at foreclosure sale, clearly did not get proper statutory notice.
proof of three separate notices required -"With respect to tax sales, the Bureau is required to give three separate types of notice: publication at least 30 days prior to the sale; notification to the owner by certified mail at least 30 days prior to the sale; and posting of the property at least ten days prior to the sale....“If any of the three types of notice is defective, the tax sale is void” ....The Bureau bears the burden of proving strict compliance with applicable notice provisions."
due process requires proper notice - "Due process requires that an owner be given notice prior to property being sold at a tax sale. As our Supreme Court has explained: 'Somehow, over the years, taxing authorities have lost sight of the fact that it is a momentous event under the United States and the Pennsylvania Constitutions when a government subjects a citizen’s property to forfeiture for the non-payment of taxes…. The collection of taxes…may not be implemented without due process of law that is guaranteed in the Commonwealth and federal constitutions; and this due process, as we have stated here, requires at a minimum that an owner of land be actually notified by government, if reasonably possible, before his land is forfeited by the state'....Because of these due process concerns, the “[n]otice provisions of the [Tax Sale] Law are to be strictly construed, and there must be strict compliance with such provisions to guard against deprivation of property without due process of law.”
strict compliance with statutory notice provisions required - Section 602(e)(1) of the Tax Sale Law [72 P.S. §5860.692] obligated the Bureau to give notice to the current owner “[a]t least thirty (30) days before the date of the sale, by United States certified mail.” It did not do so. Strict compliance with all notice requirements contained in the Tax Sale Law is an absolute requirement. The Bureau must be able to produce evidence that it gave this notice to the one who owns the property on the day of the tax sale. If the Bureau cannot produce this proof, the tax sale is invalid.
Wednesday, August 06, 2008
disability - misc. issues
Burton v. Astrue - ED Pa. - July24, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0866P.pdf
ALJ decision erroneous and case remanded.
* ALJ failed to consider evidence subsequent to date last insured (DLI) - “Retrospective diagnosis of an impairment, even if uncorroborated by contemporaneous medical records, but corroborated by lay evidence relating back to the claimed period of disability can support a finding of past impairment.” Newell v. Comm’r, 347 F.3d 541, 547 (3d Cir. 2003)...As the Third Circuit wrote in another case, “[T]he lack of contemporaneous medical evidence of an objective nature is not necessarily determinative as to the onset date, and to the extent the ALJ’s decision was based on a legal determination that the onset date of an impairment had to be proved by such medical evidence, it is erroneous.” Kelley v. Barnhart, 138 Fed. App’x 505, 508 (3d Cir. 2005). The court remands this matter for the ALJ to reconsider his treatment of Plaintiff’s medical evidence subsequent to her date last insured
* ALJ used improper measure of severity - The “burden placed on an applicant at step two [of the sequential disability evaluation] is not an exacting one.” McCrea v. Comm’r of Soc. Sec. Admin., 370 F.3d 357, 360 (3d Cir. 2004). Rather, The step-two inquiry is a de minimis screening device to dispose ofgroundless claims. An impairment or combination of impairments can be found “not severe” only if the evidence establishes a slight abnormality or a combination of slight abnormalities which have no more than a minimal effect on an individual’s ability to work. . . Only those claimants with slight abnormalities that do not significantly limit any basic work activity can be denied benefits at step two. If the evidence presented by the claimant presents more than a slight abnormality, the step-two requirement of “severe” is met, and the sequential evaluation process should continue. Reasonable doubts on severity are to be resolved in favor of the claimant. Newell, 347 F.3d at 546 (internal citations and quotations omitted).
* failure to get treatment - The adjudicator must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. SSR 96-7p
* slowly progressive impairments - “Particularly in the case of slowly progressive impairments, it is not necessary for an impairment to have reached listing severity (i.e., be decided on medical grounds alone) before onset can be established.” SSR 83-20....With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available. In such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process. . . . . . . . How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred.
http://www.paed.uscourts.gov/documents/opinions/08D0866P.pdf
ALJ decision erroneous and case remanded.
* ALJ failed to consider evidence subsequent to date last insured (DLI) - “Retrospective diagnosis of an impairment, even if uncorroborated by contemporaneous medical records, but corroborated by lay evidence relating back to the claimed period of disability can support a finding of past impairment.” Newell v. Comm’r, 347 F.3d 541, 547 (3d Cir. 2003)...As the Third Circuit wrote in another case, “[T]he lack of contemporaneous medical evidence of an objective nature is not necessarily determinative as to the onset date, and to the extent the ALJ’s decision was based on a legal determination that the onset date of an impairment had to be proved by such medical evidence, it is erroneous.” Kelley v. Barnhart, 138 Fed. App’x 505, 508 (3d Cir. 2005). The court remands this matter for the ALJ to reconsider his treatment of Plaintiff’s medical evidence subsequent to her date last insured
* ALJ used improper measure of severity - The “burden placed on an applicant at step two [of the sequential disability evaluation] is not an exacting one.” McCrea v. Comm’r of Soc. Sec. Admin., 370 F.3d 357, 360 (3d Cir. 2004). Rather, The step-two inquiry is a de minimis screening device to dispose ofgroundless claims. An impairment or combination of impairments can be found “not severe” only if the evidence establishes a slight abnormality or a combination of slight abnormalities which have no more than a minimal effect on an individual’s ability to work. . . Only those claimants with slight abnormalities that do not significantly limit any basic work activity can be denied benefits at step two. If the evidence presented by the claimant presents more than a slight abnormality, the step-two requirement of “severe” is met, and the sequential evaluation process should continue. Reasonable doubts on severity are to be resolved in favor of the claimant. Newell, 347 F.3d at 546 (internal citations and quotations omitted).
* failure to get treatment - The adjudicator must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. SSR 96-7p
* slowly progressive impairments - “Particularly in the case of slowly progressive impairments, it is not necessary for an impairment to have reached listing severity (i.e., be decided on medical grounds alone) before onset can be established.” SSR 83-20....With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available. In such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process. . . . . . . . How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred.
mortgage foreclosure - Rooker-Feldman Doctrine
Laychock v. Wells Fargo Home Mortgage - ED Pa. - July 23, 2008
http://www.paed.uscourts.gov/documents/opinions/08d0867p.pdf
The Rooker-Feldman doctrine barred borrower's predatory lending claims in federal court against lender, where lender got default judgment mortgage foreclosure in state court, and state court refused borrower's petition to open judgment.
The Rooker-Feldman Doctrine “prevents ‘inferior’ federal courts from sitting as appellate courts for state court judgments.” In re Knapper, 407 F.3d 573, 580 (3d Cir. 2005). Rooker-Feldman applies when: (1) “the federal claimwas actually litigated in state court prior to the filing of the federal action” or (2) “if the federal claim is inextricably intertwined with the state adjudication.” Id.
A federal and state case are “inextricably intertwined” when “the federal court must take an action thatwould negate the state court’s judgment” orwhen the plaintiff’s sought relief “would prevent a state court from enforcing its orders.” Id. at 581. “If the relief requested in the federal action requires determining that the state court’s decision is wrong or would void the state court’s ruling, then the issues are inextricably intertwined and the district court has no subjectmatter jurisdiction to hear the suit.”
The doctrine is implicated here, because all of plaintiff's claims would require the federal court to find that the state court decision, from which there was no appeal, was wrong.
http://www.paed.uscourts.gov/documents/opinions/08d0867p.pdf
The Rooker-Feldman doctrine barred borrower's predatory lending claims in federal court against lender, where lender got default judgment mortgage foreclosure in state court, and state court refused borrower's petition to open judgment.
The Rooker-Feldman Doctrine “prevents ‘inferior’ federal courts from sitting as appellate courts for state court judgments.” In re Knapper, 407 F.3d 573, 580 (3d Cir. 2005). Rooker-Feldman applies when: (1) “the federal claimwas actually litigated in state court prior to the filing of the federal action” or (2) “if the federal claim is inextricably intertwined with the state adjudication.” Id.
A federal and state case are “inextricably intertwined” when “the federal court must take an action thatwould negate the state court’s judgment” orwhen the plaintiff’s sought relief “would prevent a state court from enforcing its orders.” Id. at 581. “If the relief requested in the federal action requires determining that the state court’s decision is wrong or would void the state court’s ruling, then the issues are inextricably intertwined and the district court has no subjectmatter jurisdiction to hear the suit.”
The doctrine is implicated here, because all of plaintiff's claims would require the federal court to find that the state court decision, from which there was no appeal, was wrong.
real property - tax sale - notice
Wallace v. Tax Claim Bureau - Cmwlth. Court - 07-28-08 - UNREPORTED MEM. DECISION
http://www.courts.state.pa.us/OpPosting/CWealth/out/777CD07_7-28-08.pdf
Although decedent's survivors had actual notice of upcoming tax sale, they did not receive required statutory notice under Real Estate Tax Sale Law, 72 P.S. 5860.607(a), so tax sale was set aside.
The notice provisions of the RETSL "are to be strictly construed." "Strict compliance with the notice porvisions is essential to prevent the deprivateion of property without due process."
Here, tax claim bureau knew that there were notice problems. The official notice was returned marked "unclaimed." The sheriff's affidavit of posting noted the the property owner was "deceased." And someone other than the owner signed for a notice. All of this triggered a "statutory obligation to go beyond the notice requirements found in Section 602 of the ERTSL and conduct the additional notification efforts provided in Sectin 607.1," which the tax claim bureau failed to do. The TCB made no "additional notification efforts" that "ordinary common sense business practices would dictate" under the circumstances.
This was not a "techical defect" which could be overlooked in "very narrow circumstances. Failure to comply with the statutory notice requirement was a "substantive deficiency" since appellants "never received official, statutorily required notice of the pending tax sale....so far as the appellant was denied the information necessary and the reasonable opportunity to avoid the pending tax sale."
http://www.courts.state.pa.us/OpPosting/CWealth/out/777CD07_7-28-08.pdf
Although decedent's survivors had actual notice of upcoming tax sale, they did not receive required statutory notice under Real Estate Tax Sale Law, 72 P.S. 5860.607(a), so tax sale was set aside.
The notice provisions of the RETSL "are to be strictly construed." "Strict compliance with the notice porvisions is essential to prevent the deprivateion of property without due process."
Here, tax claim bureau knew that there were notice problems. The official notice was returned marked "unclaimed." The sheriff's affidavit of posting noted the the property owner was "deceased." And someone other than the owner signed for a notice. All of this triggered a "statutory obligation to go beyond the notice requirements found in Section 602 of the ERTSL and conduct the additional notification efforts provided in Sectin 607.1," which the tax claim bureau failed to do. The TCB made no "additional notification efforts" that "ordinary common sense business practices would dictate" under the circumstances.
This was not a "techical defect" which could be overlooked in "very narrow circumstances. Failure to comply with the statutory notice requirement was a "substantive deficiency" since appellants "never received official, statutorily required notice of the pending tax sale....so far as the appellant was denied the information necessary and the reasonable opportunity to avoid the pending tax sale."
Wednesday, July 30, 2008
"higher-priced mortgages" - new TILA/HOEPA regs
http://edocket.access.gpo.gov/2008/pdf/E8-16500.pdf
SUMMARY: The Board is publishing final rules amending Regulation Z, which implements the Truth in Lending Act and Home Ownership and Equity Protection Act.
The goals of the amendments are to protect consumers in the mortgage market from unfair, abusive, or deceptive lending and servicing practices while preserving responsible lending and sustainable homeownership; ensure that advertisements for mortgage loans provide accurate and balanced information and do not contain misleading or deceptive representations; and provide consumers transactionspecific disclosures early enough to use while shopping for a mortgage.
The final rule applies four protections to a newlydefined category of higher-priced mortgage loans secured by a consumer’s principal dwelling, including a prohibition on lending based on the collateral without regard to consumers’ ability to repay their obligations from income, or from other sources besides the collateral. The revisions apply two new protections to mortgage loans secured by a consumer’s principal dwelling regardless of loan price, including a prohibition on abusive servicing practices.
The Board is also finalizing rules requiring that advertisements provide accurate and balanced information, in a clear and conspicuous manner, about rates, monthly payments, and other loan features. The advertising rules ban several deceptive or misleading advertising practices, including representations that a rate or payment is ‘‘fixed’’ when it can change. Finally, the revisions require creditors to provide consumers with transaction-specific mortgage loan disclosures within three business days after application and before they pay any fee except a reasonable fee for reviewing credit history.
DATES: This final rule is effective on October 1, 2009, except for § 226.35(b)(3)) which is effective on April 1, 2010. See part XIII, below, regarding mandatory compliance with § 226.35(b)(3) on mortgages secured by manufactured housing.
SUPPLEMENTARY INFORMATION:
I. Summary of Final Rules
A. Rules To Prevent Unfairness, Deception, and Abuse
B. Revisions To Improve Mortgage Advertising
C. Requirement To Give Consumers Disclosures Early
II. Consumer Protection Concerns in the Subprime Market
A. Recent Problems in the Mortgage Market
B. Market Imperfections That Can Facilitate Abusive and Unaffordable Loans
III. The Board’s HOEPA Hearings
A. Home Ownership and Equity Protection Act (HOEPA)
B. Summary of 2006 Hearings
C. Summary of June 2007 Hearing
D. Congressional Hearings
IV. Interagency Supervisory Guidance
V. Legal Authority
A. The Board’s Authority Under TILA Section 129(l)(2)
B. The Board’s Authority Under TILA Section 105(a)
VI. The Board’s Proposal
A. Proposals To Prevent Unfairness, Deception, and Abuse
B. Proposals To Improve Mortgage Advertising
C. Proposal To Give Consumers Disclosures Early
VII. Overview of Comments Received
VIII. Definition of ‘‘Higher-Priced Mortgage Loan’’—§ 226.35(a)
A. Overview
B. Public Comment on the Proposal
C. General Approach
D. Index for Higher-Priced Mortgage Loans
E. Threshold for Higher-Priced Mortgage Loans
F. The Timing of Setting the Threshold
G. Proposal To Conform Regulation C (HMDA)
H. Types of Loans Covered Under § 226.35
IX. Final Rules for Higher-Priced Mortgage Loans and HOEPA Loans
A. Overview
B. Disregard of Consumer’s Ability To Repay—§§ 226.34(a)(4) and 226.35(b)(1)
C. Prepayment Penalties—§ 226.32(d)(6) and (7); § 226.35(b)(2)
D. Escrows for Taxes and Insurance—§ 226.35(b)(3)
E. Evasion Through Spurious Open-End Credit—§ 226.35(b)(4)
X. Final Rules for Mortgage Loans—§ 226.36
A. Creditor Payments to Mortgage Brokers—§ 226.36(a)
B. Coercion of Appraisers—§ 226.36(b)
SUMMARY: The Board is publishing final rules amending Regulation Z, which implements the Truth in Lending Act and Home Ownership and Equity Protection Act.
The goals of the amendments are to protect consumers in the mortgage market from unfair, abusive, or deceptive lending and servicing practices while preserving responsible lending and sustainable homeownership; ensure that advertisements for mortgage loans provide accurate and balanced information and do not contain misleading or deceptive representations; and provide consumers transactionspecific disclosures early enough to use while shopping for a mortgage.
The final rule applies four protections to a newlydefined category of higher-priced mortgage loans secured by a consumer’s principal dwelling, including a prohibition on lending based on the collateral without regard to consumers’ ability to repay their obligations from income, or from other sources besides the collateral. The revisions apply two new protections to mortgage loans secured by a consumer’s principal dwelling regardless of loan price, including a prohibition on abusive servicing practices.
The Board is also finalizing rules requiring that advertisements provide accurate and balanced information, in a clear and conspicuous manner, about rates, monthly payments, and other loan features. The advertising rules ban several deceptive or misleading advertising practices, including representations that a rate or payment is ‘‘fixed’’ when it can change. Finally, the revisions require creditors to provide consumers with transaction-specific mortgage loan disclosures within three business days after application and before they pay any fee except a reasonable fee for reviewing credit history.
DATES: This final rule is effective on October 1, 2009, except for § 226.35(b)(3)) which is effective on April 1, 2010. See part XIII, below, regarding mandatory compliance with § 226.35(b)(3) on mortgages secured by manufactured housing.
SUPPLEMENTARY INFORMATION:
I. Summary of Final Rules
A. Rules To Prevent Unfairness, Deception, and Abuse
B. Revisions To Improve Mortgage Advertising
C. Requirement To Give Consumers Disclosures Early
II. Consumer Protection Concerns in the Subprime Market
A. Recent Problems in the Mortgage Market
B. Market Imperfections That Can Facilitate Abusive and Unaffordable Loans
III. The Board’s HOEPA Hearings
A. Home Ownership and Equity Protection Act (HOEPA)
B. Summary of 2006 Hearings
C. Summary of June 2007 Hearing
D. Congressional Hearings
IV. Interagency Supervisory Guidance
V. Legal Authority
A. The Board’s Authority Under TILA Section 129(l)(2)
B. The Board’s Authority Under TILA Section 105(a)
VI. The Board’s Proposal
A. Proposals To Prevent Unfairness, Deception, and Abuse
B. Proposals To Improve Mortgage Advertising
C. Proposal To Give Consumers Disclosures Early
VII. Overview of Comments Received
VIII. Definition of ‘‘Higher-Priced Mortgage Loan’’—§ 226.35(a)
A. Overview
B. Public Comment on the Proposal
C. General Approach
D. Index for Higher-Priced Mortgage Loans
E. Threshold for Higher-Priced Mortgage Loans
F. The Timing of Setting the Threshold
G. Proposal To Conform Regulation C (HMDA)
H. Types of Loans Covered Under § 226.35
IX. Final Rules for Higher-Priced Mortgage Loans and HOEPA Loans
A. Overview
B. Disregard of Consumer’s Ability To Repay—§§ 226.34(a)(4) and 226.35(b)(1)
C. Prepayment Penalties—§ 226.32(d)(6) and (7); § 226.35(b)(2)
D. Escrows for Taxes and Insurance—§ 226.35(b)(3)
E. Evasion Through Spurious Open-End Credit—§ 226.35(b)(4)
X. Final Rules for Mortgage Loans—§ 226.36
A. Creditor Payments to Mortgage Brokers—§ 226.36(a)
B. Coercion of Appraisers—§ 226.36(b)
Wednesday, July 23, 2008
drivers license - refusal to take breath test - clear warning
Yourick v. DOT - Commonwealth Court- July 23, 21008
http://www.courts.state.pa.us/OpPosting/CWealth/out/2280CD07_7-23-08.pdf
Alas, poor Yourick!
She was arrested for DUI and asked to take a blood alcohol test, which she refused. DOT then proposed to suspend her license because of that refusal, and she appealed. And what ho! The warning that the police gave to her about the consequences of a refusal to submit to such testing was held to be ambiguous and not "legally sufficient" to make her refusal knowing and conscious.
The warning stated that "if you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence." (emphasis added) Claimant testified that she understood this to mean that her license would not be suspended if she refused chemical testing because she never had a prior refusal and had never before been sentenced for driving under the influence. She voiced her concern about this to the officer, who told her only that she didn't have a right to speak to anyone about this.
The trial and appellate courts found Licensee's understanding to be a "reasonable interpretation. Construing the ambiguous language against the Department as the drafter of the warnings, as we must, we hold that the warning given to Licensee was not sufficient to specifically warn her that a refusal to submit to chemical testing would result in the suspension of her operating privilege. As such, the Department failed to meet its burden of proof and the trial court did not err in sustaining Licensee’s appeal."
The Department reads the above-recited first “if clause” to apply to the entire provision, meaning that any refusal will result in a 12-month suspension and, further, that suspension could be increased to 18 months if the licensee has a history of prior refusals or convictions. However, the warning can be read another way. The qualifying language at the end of the sentence, i.e., “if you have prior refusals or have been previously sentenced…,” can be read to apply to the entire warning. Read that way, the suspension penalty applies only if the licensee has previously refused a test or previously been sentenced. The resulting suspension can range between 12 and 18 months. A passage that can be read two ways is ambiguous, and it is axiomatic that any ambiguity is to be construed against the drafter of the document if the other party’s interpretation is reasonable.
The trial court correctly found that the warning was "poorly drafted and vague, since a comma was placed randomly where perhaps a period might have been” and concluded that this vague language confused the Licensee and prevented her from making a knowing and conscious refusal to submit to chemical testing and that, therefore, a suspension was not warranted. N.B. Claimant's prior employment involved extensive work at a medical center, interpreting consent and waiver forms.
To sustain a license suspension under sec. 1547 of the Vehicle Code, DOT must prove that the driver (1) was placed under arrest for driving while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his or her driver’s license. The last prong of the Department’s burden requires “a precisely enunciated warning that a driver’s license will be revoked.” If the Department meets its initial burden, the burden then shifts to the licensee to show that her refusal was not knowing or conscious or that she was physically unable to take the test. Where a licensee is not adequately informed of the consequences of a refusal, it is irrelevant whether the refusal to submit to chemical testing was knowing and conscious.
The "issue is whether the warning given to Licensee was legally sufficient The law required the Department to prove that Licensee was specifically warned that a refusal to submit to chemical testing would result in the suspension of her driving privilege. We conclude that the Department was not able to meet its burden in this regard."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2280CD07_7-23-08.pdf
Alas, poor Yourick!
She was arrested for DUI and asked to take a blood alcohol test, which she refused. DOT then proposed to suspend her license because of that refusal, and she appealed. And what ho! The warning that the police gave to her about the consequences of a refusal to submit to such testing was held to be ambiguous and not "legally sufficient" to make her refusal knowing and conscious.
The warning stated that "if you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence." (emphasis added) Claimant testified that she understood this to mean that her license would not be suspended if she refused chemical testing because she never had a prior refusal and had never before been sentenced for driving under the influence. She voiced her concern about this to the officer, who told her only that she didn't have a right to speak to anyone about this.
The trial and appellate courts found Licensee's understanding to be a "reasonable interpretation. Construing the ambiguous language against the Department as the drafter of the warnings, as we must, we hold that the warning given to Licensee was not sufficient to specifically warn her that a refusal to submit to chemical testing would result in the suspension of her operating privilege. As such, the Department failed to meet its burden of proof and the trial court did not err in sustaining Licensee’s appeal."
The Department reads the above-recited first “if clause” to apply to the entire provision, meaning that any refusal will result in a 12-month suspension and, further, that suspension could be increased to 18 months if the licensee has a history of prior refusals or convictions. However, the warning can be read another way. The qualifying language at the end of the sentence, i.e., “if you have prior refusals or have been previously sentenced…,” can be read to apply to the entire warning. Read that way, the suspension penalty applies only if the licensee has previously refused a test or previously been sentenced. The resulting suspension can range between 12 and 18 months. A passage that can be read two ways is ambiguous, and it is axiomatic that any ambiguity is to be construed against the drafter of the document if the other party’s interpretation is reasonable.
The trial court correctly found that the warning was "poorly drafted and vague, since a comma was placed randomly where perhaps a period might have been” and concluded that this vague language confused the Licensee and prevented her from making a knowing and conscious refusal to submit to chemical testing and that, therefore, a suspension was not warranted. N.B. Claimant's prior employment involved extensive work at a medical center, interpreting consent and waiver forms.
To sustain a license suspension under sec. 1547 of the Vehicle Code, DOT must prove that the driver (1) was placed under arrest for driving while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his or her driver’s license. The last prong of the Department’s burden requires “a precisely enunciated warning that a driver’s license will be revoked.” If the Department meets its initial burden, the burden then shifts to the licensee to show that her refusal was not knowing or conscious or that she was physically unable to take the test. Where a licensee is not adequately informed of the consequences of a refusal, it is irrelevant whether the refusal to submit to chemical testing was knowing and conscious.
The "issue is whether the warning given to Licensee was legally sufficient The law required the Department to prove that Licensee was specifically warned that a refusal to submit to chemical testing would result in the suspension of her driving privilege. We conclude that the Department was not able to meet its burden in this regard."
Tuesday, July 22, 2008
real property - sales agreement - breach - consequential damages
Quinn v. Bupp - Superior Court - June 21, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/a09030_08.pdf
Seller breached sales agreement concerning commercial property. The trial court ordered specific performance, but both parties appealed concerning consequential damages. The appellate court held that
1) increased cost of borrowing - Buyer could not recover increased borrowing costs due to increase in mortgage interest. Following the rule in Rusiski v. Pribonic, 515 A.2d 507 (Pa. 1986), the court held that "under contract principles, damages must be such as would naturally and ordinarily follow from the breach, must have been reasonably foreseeable and within the contemplation of the parties at the time they made the contract and must be capable of being proved with reasonable certainty. Changes in interest rates, while foreseeable, are not capable of being proven with reasonable certainty. Drastic fluctuations in interest rates over the recent past render it speculative for a court to award interest as damages in specific performance decrees.
2) lost profits - Buyer could recover the profits he lost because of the breach, since they were foreseeable, ascertainable, and readily calculable. They would have been paid to the buyer if the seller had not wrongfully refused to comply with the sales agreement
http://www.courts.state.pa.us/OpPosting/Superior/out/a09030_08.pdf
Seller breached sales agreement concerning commercial property. The trial court ordered specific performance, but both parties appealed concerning consequential damages. The appellate court held that
1) increased cost of borrowing - Buyer could not recover increased borrowing costs due to increase in mortgage interest. Following the rule in Rusiski v. Pribonic, 515 A.2d 507 (Pa. 1986), the court held that "under contract principles, damages must be such as would naturally and ordinarily follow from the breach, must have been reasonably foreseeable and within the contemplation of the parties at the time they made the contract and must be capable of being proved with reasonable certainty. Changes in interest rates, while foreseeable, are not capable of being proven with reasonable certainty. Drastic fluctuations in interest rates over the recent past render it speculative for a court to award interest as damages in specific performance decrees.
2) lost profits - Buyer could recover the profits he lost because of the breach, since they were foreseeable, ascertainable, and readily calculable. They would have been paid to the buyer if the seller had not wrongfully refused to comply with the sales agreement
Monday, July 21, 2008
bankruptcy - exemption - objection - 30-day limit
In re Reilly - 3rd Circuit - July 21, 2008
http://www.ca3.uscourts.gov/opinarch/064290p.pdf
A Chapter 7 trustee who does not lodge a timely objection to a debtor’s claim of exemption of personal property may not move to sell the property if he later learns that the property value exceeds the amount of the claimed exemption.
Where, as here, the debtor indicates the intent to exempt her entire interest in a given property by claiming an exemption of its full value and the trustee does not object in a timely manner, the debtor is entitled to the property in its entirety.
Debtor is a cook with a one-person catering business. In her Schedule B and Schedule C, she listed "business equipment" as personal property with a value of $10,718 and claimed an exemption for the full value under 11 U.S.C. § 522(d)(6) and 11 U.S.C. § 522(d)(5).
The trustee did not object to the exemption within the 30-day period prescribed by Fed. R. Bank. P. 4003(b). He later sought an appraisal of the business equipment and determined it to have a value of approximately $17,200. He then filed a motion before the Bankruptcy Court to sell the business equipment in order to recoup the value, less the $10,718 exemption, for the bankruptcy estate. The Bankruptcy Court rejected this motion and agreed with the debtor that the property was fully exempt from the bankruptcy estate because the trustee had not filed a timely objection to the claim of exemption.
Under Fed. R. Bankr. P. 4003(b), the trustee, as a party in interest, has 30 days from the close of the creditors’ meeting under § 341(a) (or the date of filing any supplemental schedules or amendment to the exempt-property list, whichever is later) to object to any exemptions a debtor claimed on his or her Schedule C. If no objection is made, “the property claimed as exempt on [the Schedule C] is exempt.” 11 U.S.C. § 522(l).
Recognizing a split of authority of the issue, and relying primarily on Taylor v. Freeland & Kronz, 503 U.S. 638 (1992), the court rejected the trustee's argument that Rule 4003 and § 522(l) only place a 30-day limit on the trustee’s ability to object to an exemption on the ground that it was not properly taken—that there is no statutory basis for claiming the exemption—and does not control objections to property valuation.
The court said that its holding "accords with bankruptcy’s promise of a fresh start. Once the period for objection lapses, all parties involved know what property belongs to the bankruptcy estate and what remains with the debtor. The debtor can then use that property with the knowledge that it is her own and will not be subject to later liquidation for the benefit of creditors. This is not the case where the debtor claims an exemption in an amount less than the value listed on the schedules. In that circumstance, the trustee is entitled to claim for the bankruptcy estate the value of the property in excess of the exemption sought, without the need for a timely objection....But where the debtor lists a value for the property and claims an exemption in the same amount, the trustee is on notice of the debtor’s valuation and has ample time to seek confirmation that the debtor’s claimed value represents the true worth of the asset."
The trustee’s concern that the holding today will encourage gamesmanship among crafty debtors who may seek to undervalue their property with the hope of having it bypass the bankruptcy estate is answer by the fact that "there are significant protections in place for both the trustee and the bankruptcy estate....Moreover, on the facts here, there is no reason to suspect bad behavior on the part of the debtor. Indeed, it is quite to the contrary. If the trusteee discovered bad faith by the debtor, bankruptcy and criminal law allow recourse."
http://www.ca3.uscourts.gov/opinarch/064290p.pdf
A Chapter 7 trustee who does not lodge a timely objection to a debtor’s claim of exemption of personal property may not move to sell the property if he later learns that the property value exceeds the amount of the claimed exemption.
Where, as here, the debtor indicates the intent to exempt her entire interest in a given property by claiming an exemption of its full value and the trustee does not object in a timely manner, the debtor is entitled to the property in its entirety.
Debtor is a cook with a one-person catering business. In her Schedule B and Schedule C, she listed "business equipment" as personal property with a value of $10,718 and claimed an exemption for the full value under 11 U.S.C. § 522(d)(6) and 11 U.S.C. § 522(d)(5).
The trustee did not object to the exemption within the 30-day period prescribed by Fed. R. Bank. P. 4003(b). He later sought an appraisal of the business equipment and determined it to have a value of approximately $17,200. He then filed a motion before the Bankruptcy Court to sell the business equipment in order to recoup the value, less the $10,718 exemption, for the bankruptcy estate. The Bankruptcy Court rejected this motion and agreed with the debtor that the property was fully exempt from the bankruptcy estate because the trustee had not filed a timely objection to the claim of exemption.
Under Fed. R. Bankr. P. 4003(b), the trustee, as a party in interest, has 30 days from the close of the creditors’ meeting under § 341(a) (or the date of filing any supplemental schedules or amendment to the exempt-property list, whichever is later) to object to any exemptions a debtor claimed on his or her Schedule C. If no objection is made, “the property claimed as exempt on [the Schedule C] is exempt.” 11 U.S.C. § 522(l).
Recognizing a split of authority of the issue, and relying primarily on Taylor v. Freeland & Kronz, 503 U.S. 638 (1992), the court rejected the trustee's argument that Rule 4003 and § 522(l) only place a 30-day limit on the trustee’s ability to object to an exemption on the ground that it was not properly taken—that there is no statutory basis for claiming the exemption—and does not control objections to property valuation.
The court said that its holding "accords with bankruptcy’s promise of a fresh start. Once the period for objection lapses, all parties involved know what property belongs to the bankruptcy estate and what remains with the debtor. The debtor can then use that property with the knowledge that it is her own and will not be subject to later liquidation for the benefit of creditors. This is not the case where the debtor claims an exemption in an amount less than the value listed on the schedules. In that circumstance, the trustee is entitled to claim for the bankruptcy estate the value of the property in excess of the exemption sought, without the need for a timely objection....But where the debtor lists a value for the property and claims an exemption in the same amount, the trustee is on notice of the debtor’s valuation and has ample time to seek confirmation that the debtor’s claimed value represents the true worth of the asset."
The trustee’s concern that the holding today will encourage gamesmanship among crafty debtors who may seek to undervalue their property with the hope of having it bypass the bankruptcy estate is answer by the fact that "there are significant protections in place for both the trustee and the bankruptcy estate....Moreover, on the facts here, there is no reason to suspect bad behavior on the part of the debtor. Indeed, it is quite to the contrary. If the trusteee discovered bad faith by the debtor, bankruptcy and criminal law allow recourse."
consumer - used cars - proposed FTC reg
http://edocket.access.gpo.gov/2008/pdf/E8-16634.pdf
SUMMARY: The FTC requests public comments on its Used Motor Vehicle Trade Regulation Rule.
DATES: Written comments relating to the Used Car Rule must be received by September 19, 2008.
I. Background
The Commission promulgated the Used Car Rule in 1984 and the Rule became effective in 1985.2 The Used Car Rule is intended primarily to prevent oral misrepresentations and unfair omissions of material facts by used car dealers concerning warranty coverage. \
To accomplish that goal, the Rule provides a uniform method for disclosing warranty information on a window sticker called the ‘‘Buyers Guide’’ that dealers are required to display on used cars. The Rule requires used car dealers to disclose on the Buyers Guide whether they are offering a used car for sale with a dealer’s warranty and, if so, the basic terms, including the duration of coverage, the percentage of total repair costs to be paid by the dealer, and the exact systems covered by the warranty.
The Rule additionally provides that the Buyers Guide disclosures are to be incorporated by reference into the sales contract, and are to govern in the event of an inconsistency between the Buyers Guide and the sales contract. The Rule requires Spanish language versions of the Buyers Guide when dealers conduct sales in Spanish.
III. Issues for Comment
The Commission requests written comment on any or all of the following questions. The Commission requests that responses to its questions be as specific as possible, including a reference to the question being answered, and reference to empirical data or other evidence wherever available and appropriate.
A. General Issues
(1) Is there a continuing need for the Rule? Why or why not?
(2) What benefits has the Rule provided to consumers? What evidence supports the asserted benefits?
(3) What modifications, if any, should be made to the Rule to increase its benefits to consumers?
0 F(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the costs the Rule imposes on businesses, and in particular on small businesses?
(c) How would these modifications affect the benefits to consumers?
(4) What impact has the Rule had on the flow of truthful information to consumers and on the flow of deceptive information to consumers?
(5) What significant costs has the Rule imposed on consumers? What evidence supports the asserted costs?
(6) What modifications, if any, should be made to the Rule to reduce the costs imposed on consumers?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the benefits provided by the Rule?
(7) How have the 1995 amendments to the Rule affected purchasers of used motor vehicles? How have the 1995 amendments to the Rule affected used motor vehicle dealers? Please provide any evidence that has become available since 1995 concerning the costs, benefits, and effectiveness of the Rule. Does this new information indicate that the Rule should be modified? If so, why, and how? If not, why not?
(8) What benefits, if any, has the Rule provided to businesses, and in particular to small businesses? What evidence supports the asserted benefits?
(9) What modifications, if any, should be made to the Rule to increase its benefits to businesses, and in particular to small businesses?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the costs the Rule impose on businesses, and in particular on small businesses?
(c) How would these modifications affect the benefits to consumers?
(10) What significant costs, including costs of compliance, has the Rule imposed on businesses, and in particular on small businesses? What evidence supports the asserted costs?
(11) What modifications, if any, should be made to the Rule to reduce the costs imposed on businesses, and in particular on small businesses?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the benefits provided by the Rule?
(12) What evidence is available concerning the degree of industry compliance with the Rule? To what extent has there been a reduction in deceptive oral representations and unfair omissions made by used car dealers concerning warranty coverage since the Rule was issued? Please provide any supporting evidence. Does this evidence indicate that the Rule should be modified? If so, why, and how? If not, why not?
(13) What modifications, if any, should be made to the Rule to account for changes in relevant technology or economic conditions? What evidence supports the proposed modifications?
(14) Does the Rule overlap or conflict with other federal, state, or local laws or regulations? If so, how?
(a) What evidence supports the asserted conflicts?
(b) With reference to the asserted conflicts, should the Rule be modified? If so, why, and how? If not, why not?
SUMMARY: The FTC requests public comments on its Used Motor Vehicle Trade Regulation Rule.
DATES: Written comments relating to the Used Car Rule must be received by September 19, 2008.
I. Background
The Commission promulgated the Used Car Rule in 1984 and the Rule became effective in 1985.2 The Used Car Rule is intended primarily to prevent oral misrepresentations and unfair omissions of material facts by used car dealers concerning warranty coverage. \
To accomplish that goal, the Rule provides a uniform method for disclosing warranty information on a window sticker called the ‘‘Buyers Guide’’ that dealers are required to display on used cars. The Rule requires used car dealers to disclose on the Buyers Guide whether they are offering a used car for sale with a dealer’s warranty and, if so, the basic terms, including the duration of coverage, the percentage of total repair costs to be paid by the dealer, and the exact systems covered by the warranty.
The Rule additionally provides that the Buyers Guide disclosures are to be incorporated by reference into the sales contract, and are to govern in the event of an inconsistency between the Buyers Guide and the sales contract. The Rule requires Spanish language versions of the Buyers Guide when dealers conduct sales in Spanish.
III. Issues for Comment
The Commission requests written comment on any or all of the following questions. The Commission requests that responses to its questions be as specific as possible, including a reference to the question being answered, and reference to empirical data or other evidence wherever available and appropriate.
A. General Issues
(1) Is there a continuing need for the Rule? Why or why not?
(2) What benefits has the Rule provided to consumers? What evidence supports the asserted benefits?
(3) What modifications, if any, should be made to the Rule to increase its benefits to consumers?
0 F(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the costs the Rule imposes on businesses, and in particular on small businesses?
(c) How would these modifications affect the benefits to consumers?
(4) What impact has the Rule had on the flow of truthful information to consumers and on the flow of deceptive information to consumers?
(5) What significant costs has the Rule imposed on consumers? What evidence supports the asserted costs?
(6) What modifications, if any, should be made to the Rule to reduce the costs imposed on consumers?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the benefits provided by the Rule?
(7) How have the 1995 amendments to the Rule affected purchasers of used motor vehicles? How have the 1995 amendments to the Rule affected used motor vehicle dealers? Please provide any evidence that has become available since 1995 concerning the costs, benefits, and effectiveness of the Rule. Does this new information indicate that the Rule should be modified? If so, why, and how? If not, why not?
(8) What benefits, if any, has the Rule provided to businesses, and in particular to small businesses? What evidence supports the asserted benefits?
(9) What modifications, if any, should be made to the Rule to increase its benefits to businesses, and in particular to small businesses?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the costs the Rule impose on businesses, and in particular on small businesses?
(c) How would these modifications affect the benefits to consumers?
(10) What significant costs, including costs of compliance, has the Rule imposed on businesses, and in particular on small businesses? What evidence supports the asserted costs?
(11) What modifications, if any, should be made to the Rule to reduce the costs imposed on businesses, and in particular on small businesses?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the benefits provided by the Rule?
(12) What evidence is available concerning the degree of industry compliance with the Rule? To what extent has there been a reduction in deceptive oral representations and unfair omissions made by used car dealers concerning warranty coverage since the Rule was issued? Please provide any supporting evidence. Does this evidence indicate that the Rule should be modified? If so, why, and how? If not, why not?
(13) What modifications, if any, should be made to the Rule to account for changes in relevant technology or economic conditions? What evidence supports the proposed modifications?
(14) Does the Rule overlap or conflict with other federal, state, or local laws or regulations? If so, how?
(a) What evidence supports the asserted conflicts?
(b) With reference to the asserted conflicts, should the Rule be modified? If so, why, and how? If not, why not?
child support enforcement - medical support - federal regs
http://edocket.access.gpo.gov/2008/pdf/E8-15771.pdf
SUMMARY: This regulation revises Federal requirements for establishing and enforcing medical support obligations in Child Support Enforcement (CSE) program cases receiving services under title IV–D of the Social Security Act (the Act).
The changes: require that all support orders in the IV–D program address medical support; redefine reasonable-cost health insurance; require health insurance to be accessible, as defined by the State; and make conforming changes to the Federal interstate, substantialcompliance audit, and State selfassessment requirements.
DATES: Effective Date: This regulation is effective July 21, 2008.
SUMMARY: This regulation revises Federal requirements for establishing and enforcing medical support obligations in Child Support Enforcement (CSE) program cases receiving services under title IV–D of the Social Security Act (the Act).
The changes: require that all support orders in the IV–D program address medical support; redefine reasonable-cost health insurance; require health insurance to be accessible, as defined by the State; and make conforming changes to the Federal interstate, substantialcompliance audit, and State selfassessment requirements.
DATES: Effective Date: This regulation is effective July 21, 2008.
Friday, July 18, 2008
Pennsylvania Bulletin Highlights, July 19, 2008
Link: http://www.pabulletin.com/secure/data/vol38/38-29/index.html
Highlights of items of interest to the Poverty Law Community:
Recent Actions during the 2008 Regular Session of the General Assembly
http://www.pabulletin.com/secure/data/vol38/38-29/1316.html
DPW - child care - income limits - increase
http://www.pabulletin.com/secure/data/vol38/38-29/1339.html
DPW - MA - prior authorization (proposed) - radiology services
http://www.pabulletin.com/secure/data/vol38/38-29/1340.html
Sign language interpreters/transliterators - proposed final rules filed with IRRC
http://www.pabulletin.com/secure/data/vol38/38-29/1349.html
Highlights of items of interest to the Poverty Law Community:
Recent Actions during the 2008 Regular Session of the General Assembly
http://www.pabulletin.com/secure/data/vol38/38-29/1316.html
DPW - child care - income limits - increase
http://www.pabulletin.com/secure/data/vol38/38-29/1339.html
DPW - MA - prior authorization (proposed) - radiology services
http://www.pabulletin.com/secure/data/vol38/38-29/1340.html
Sign language interpreters/transliterators - proposed final rules filed with IRRC
http://www.pabulletin.com/secure/data/vol38/38-29/1349.html
UC - willful misconduct - drug testing - right to challenge drug test
Cinram Manufacturing, LLC v. UCBR - July 18, 2008 - Commonwealth Court - unreported memorandum decision
http://www.courts.state.pa.us/OpPosting/CWealth/out/2051CD07_7-18-08.pdf
The court upheld the Board decision that the employer had not proved willful misconduct, despite having produced drug test results - to which claimant did not object - showing a positive drug test.
Claimant produced countervailing evidence, including a letter from his doctor detailing how having taken cough medicine and eaten a poppy seed roll could have produced a false positive result. The referee and Board found that claimant's evidence was “credible and more compelling and logical” than that presented by employer and established that the test result was a false positive.
Under Section 402(e.1) of the Law, an employee is ineligible for unemployment compensation in any week in which (a) his unemployment is due to discharge or temporary suspension from work due to failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy, and (b) the drug test is not requested or implemented in violation of the law or of a collective bargaining agreement. 43 P.S. § 802(e.1). The employer introduced evidence which could have satisfied all requirements of Section 402(e.1) had it been accorded different weight and persuasive value.
However, proof of the elements of sec. 402(e.1) are not, per se, dispositive. Claimant has a right to dispute the accuracy of the drug test. The court rejected as "absurd" the employer's argument that, because it established the required elements listed in sec. 402(e.1), the referee and Board should not have examined the accuracy of the drug test.
The Board found credible Claimant’s evidence that lawful items he had consumed caused his drug test to produce a false positive result. While Employer interprets this as placing an additional burden on employers, it is merely the Board serving in its capacity as fact-finder. In unemployment compensation cases, the Board serves as final fact-finder and resolves any conflicts in evidence or credibility of witnesses.
The Board did not ignore the the drug test. Rather, it was given "probative value." UGI Utilities, Inc. v. UCBR, 851 A.2d 240, 252 (Pa. Cmwlth. 2004). The Board considered the positive test result, but accorded it no credibility, instead accepting substantial evidence which impugned its reliability. The Board clearly concluded that Claimant rebutted the positive test results with credible evidence that consumption of poppy seed roll and over-the-counter medicine resulted in a false positive test. Based on that, the Board concluded that he did not violate employer’s drug policy. "We are not in a position to question the Board’s finding. Thus, there is no reason for us to reverse this decision."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2051CD07_7-18-08.pdf
The court upheld the Board decision that the employer had not proved willful misconduct, despite having produced drug test results - to which claimant did not object - showing a positive drug test.
Claimant produced countervailing evidence, including a letter from his doctor detailing how having taken cough medicine and eaten a poppy seed roll could have produced a false positive result. The referee and Board found that claimant's evidence was “credible and more compelling and logical” than that presented by employer and established that the test result was a false positive.
Under Section 402(e.1) of the Law, an employee is ineligible for unemployment compensation in any week in which (a) his unemployment is due to discharge or temporary suspension from work due to failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy, and (b) the drug test is not requested or implemented in violation of the law or of a collective bargaining agreement. 43 P.S. § 802(e.1). The employer introduced evidence which could have satisfied all requirements of Section 402(e.1) had it been accorded different weight and persuasive value.
However, proof of the elements of sec. 402(e.1) are not, per se, dispositive. Claimant has a right to dispute the accuracy of the drug test. The court rejected as "absurd" the employer's argument that, because it established the required elements listed in sec. 402(e.1), the referee and Board should not have examined the accuracy of the drug test.
The Board found credible Claimant’s evidence that lawful items he had consumed caused his drug test to produce a false positive result. While Employer interprets this as placing an additional burden on employers, it is merely the Board serving in its capacity as fact-finder. In unemployment compensation cases, the Board serves as final fact-finder and resolves any conflicts in evidence or credibility of witnesses.
The Board did not ignore the the drug test. Rather, it was given "probative value." UGI Utilities, Inc. v. UCBR, 851 A.2d 240, 252 (Pa. Cmwlth. 2004). The Board considered the positive test result, but accorded it no credibility, instead accepting substantial evidence which impugned its reliability. The Board clearly concluded that Claimant rebutted the positive test results with credible evidence that consumption of poppy seed roll and over-the-counter medicine resulted in a false positive test. Based on that, the Board concluded that he did not violate employer’s drug policy. "We are not in a position to question the Board’s finding. Thus, there is no reason for us to reverse this decision."
Wednesday, July 16, 2008
consumer - RESPA - insurance kickbacks
Alexander, et al. v. WAMU, et al. - ED Pa. - June 30, 2008
http://www.paed.uscourts.gov/documents/opinions/08d0740p.pdf
The court rejected defendants' 12(b)(6) motion to dismiss class action complaint against lender for alleged violations of RESPA, 12 USC 2601 et seq., by collecting illegal referral or kickback payments in the form of reinsurance premiums. Plaintiffs obtained loans with down payments of less than 20% and were required to pay for private mortgage insurance from an insurer with whom WAMU had alleged captive reinsurance arrangement.
filed rate doctrine does not prohibit a RESPA suit
The filed rate doctrine states that where regulated companies are required by federal or state law to file proposed rates or charges with a governing regulatory agency, then any rate approved by that agency “is per se reasonable and unassailable in judicial proceedings brought by ratepayers”....The filed rate doctrine has no fraud exception; rates that are approved are per se reasonable even if obtained by fraud....“[E]very court that has considered [the issue] has rejected the notion that there is a fraud exception to the filed rate doctrine.”
However, the court found that the filed rate doctrine "does not bar the plaintiffs’ claim that defendants violated RESPA through an alleged kickback or fee-splitting scheme through their mortgage lender’s captive reinsurance arrangement. While the doctrine bars direct challenges to the insurance rate structure set by a state, it does not prohibit plaintiffs from bringing suit under RESPA for a violation of fair business practices through the use of illegal kickback payments.
RESPA safe harbor provision
RESPA's safe harbor provision states that nothing shall prohibit “the payment to any person of a bona fide salary or compensation or other payment for goods or 8 facilities actually furnished or for services actually performed.” 12 U.S.C. § 2607(c)(2). HUD's two-prong test requires that the court evaluate: (1) “whether goods or facilities were actually furnished or services were actually performed for the compensation paid” and (2) “whether the payments are reasonably related to the value of the goods or facilities that were actually furnished or services that were actually performed.” Plaintiffs here "have sufficiently alleged that the payments in question are not covered by the safe harbor provision, since they say that some services were not actually performed.
Plaintiffs have Article III standing
The court followed the reasoning of Kahrer v. Ameriquest Mort. Co., 418 F. Supp. 2d 748 (W.D. Pa. 2006) rather than Morales v. Attorneys’ Title Ins. Fund, Inc., 983 F. Supp. 1418 (S.D. Fla. 1997) and concluded that under the plain language of the statute and its legislative history a plaintiff who is entitled to damages under § 8(d)(2) can seek three times the full amount he paid for any settlement services. Under the Kahrer line of cases, RESPA provides that plaintiffs have a right to purchase settlements services from providers who do not participate in an illegal kickback scheme. Therefore, plaintiffs’ failure to allege an overcharge for settlement services does not preclude a finding of injury in fact for the purposes of Article III standing.
Burford abstention does not apply
In Burford v. Sun Oil Co. the Supreme Court concluded that where complex issues of state administrative law are presented a federal court may in its discretion “stay its hand” and abstain from hearing the case. 319 U.S. 315, 334 (1943). The Court of Appeals has explained: Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar;” or (2) where the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.”
“While Burford is concerned with protecting complex state administrative processes from undue federal interferences, it does not require abstention whenever there is such a process”....Burford abstention does not apply to this case, where plaintiffs are claiming that defendants through their captive reinsurance program violated the anti-kickback provision of RESPA. Plaintiffs are not pursuing a state insurance code claim or challenging a state administrative decision, so their remedies are not limited to state administrative or court proceedings, and the mere existence of a state administrative procedures for insurance claims does not require abstention. Additionally, there are no prior or ongoing state proceedings with which the present action interferes.
Further, the second prong of the Burford doctrine – whether there are difficult questions of state law impacting public policy or exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy – is not implicated in this case. Plaintiffs are not challenging the filed rate or any other state policies in this matter. They allege that defendants’ alleged kickback scheme – not defendants’ charged rate – violates RESPA, a federal statute. Therefore adjudication of this matter will not interfere with Pennsylvania’s efforts to maintain a comprehensive and coherent regulatory regime.
http://www.paed.uscourts.gov/documents/opinions/08d0740p.pdf
The court rejected defendants' 12(b)(6) motion to dismiss class action complaint against lender for alleged violations of RESPA, 12 USC 2601 et seq., by collecting illegal referral or kickback payments in the form of reinsurance premiums. Plaintiffs obtained loans with down payments of less than 20% and were required to pay for private mortgage insurance from an insurer with whom WAMU had alleged captive reinsurance arrangement.
filed rate doctrine does not prohibit a RESPA suit
The filed rate doctrine states that where regulated companies are required by federal or state law to file proposed rates or charges with a governing regulatory agency, then any rate approved by that agency “is per se reasonable and unassailable in judicial proceedings brought by ratepayers”....The filed rate doctrine has no fraud exception; rates that are approved are per se reasonable even if obtained by fraud....“[E]very court that has considered [the issue] has rejected the notion that there is a fraud exception to the filed rate doctrine.”
However, the court found that the filed rate doctrine "does not bar the plaintiffs’ claim that defendants violated RESPA through an alleged kickback or fee-splitting scheme through their mortgage lender’s captive reinsurance arrangement. While the doctrine bars direct challenges to the insurance rate structure set by a state, it does not prohibit plaintiffs from bringing suit under RESPA for a violation of fair business practices through the use of illegal kickback payments.
RESPA safe harbor provision
RESPA's safe harbor provision states that nothing shall prohibit “the payment to any person of a bona fide salary or compensation or other payment for goods or 8 facilities actually furnished or for services actually performed.” 12 U.S.C. § 2607(c)(2). HUD's two-prong test requires that the court evaluate: (1) “whether goods or facilities were actually furnished or services were actually performed for the compensation paid” and (2) “whether the payments are reasonably related to the value of the goods or facilities that were actually furnished or services that were actually performed.” Plaintiffs here "have sufficiently alleged that the payments in question are not covered by the safe harbor provision, since they say that some services were not actually performed.
Plaintiffs have Article III standing
The court followed the reasoning of Kahrer v. Ameriquest Mort. Co., 418 F. Supp. 2d 748 (W.D. Pa. 2006) rather than Morales v. Attorneys’ Title Ins. Fund, Inc., 983 F. Supp. 1418 (S.D. Fla. 1997) and concluded that under the plain language of the statute and its legislative history a plaintiff who is entitled to damages under § 8(d)(2) can seek three times the full amount he paid for any settlement services. Under the Kahrer line of cases, RESPA provides that plaintiffs have a right to purchase settlements services from providers who do not participate in an illegal kickback scheme. Therefore, plaintiffs’ failure to allege an overcharge for settlement services does not preclude a finding of injury in fact for the purposes of Article III standing.
Burford abstention does not apply
In Burford v. Sun Oil Co. the Supreme Court concluded that where complex issues of state administrative law are presented a federal court may in its discretion “stay its hand” and abstain from hearing the case. 319 U.S. 315, 334 (1943). The Court of Appeals has explained: Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar;” or (2) where the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.”
“While Burford is concerned with protecting complex state administrative processes from undue federal interferences, it does not require abstention whenever there is such a process”....Burford abstention does not apply to this case, where plaintiffs are claiming that defendants through their captive reinsurance program violated the anti-kickback provision of RESPA. Plaintiffs are not pursuing a state insurance code claim or challenging a state administrative decision, so their remedies are not limited to state administrative or court proceedings, and the mere existence of a state administrative procedures for insurance claims does not require abstention. Additionally, there are no prior or ongoing state proceedings with which the present action interferes.
Further, the second prong of the Burford doctrine – whether there are difficult questions of state law impacting public policy or exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy – is not implicated in this case. Plaintiffs are not challenging the filed rate or any other state policies in this matter. They allege that defendants’ alleged kickback scheme – not defendants’ charged rate – violates RESPA, a federal statute. Therefore adjudication of this matter will not interfere with Pennsylvania’s efforts to maintain a comprehensive and coherent regulatory regime.
child abuse - expungement - discretionary authority of DPW
G.M. v. DPW - Commonwealth Court - July 16, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/300CD08_7-16-08.pdf
DPW did not act in bad faith, fraudulently, capriciously or otherwise abuse its power in rejecting petitioner's 2007 petition alleging that there was good cause to expunge a founded report of child abuse which took place in 1987. A court order was entered at that time, finding that petitioner had sexually abused his daughter. There was no appeal from that finding.
Petitioner alleged that there was good cause for his record to be expunged because he was rehabilitated. He said that (1) he had undergone medical and psychiatric treatment and therapy; (2) he deeply regretted his actions; (3) at the time of the abuse, he was going through a divorce, but he now is in a stable relationship; (4) he has rebuilt his relationship with his daughter; (5) he currently is enrolled in nursing school; and (6) the founded child abuse report harmed his chances of obtaining gainful employment
The Law provides that the DPW Secretary may amend or expunge any record at any time upon good cause shown and notice to the appropriate subjects of the report. 23 Pa. C.S. §6341(a)(1). This section grants the Secretary the discretionary authority to amend any record upon good cause shown. J.C. v. Department of Public Welfare, 720 A.2d 193 (Pa. Cmwlth. 1998). Our courts will not review the actions of government bodies or administrative tribunals involving the exercise of discretion in the absence of bad faith, fraud, capricious action or abuse of power, which did not exist here.
The trial court’s orders were presumptive evidence that the child abuse report was accurate, and petitioner did not dispute the finding of abuse.
http://www.courts.state.pa.us/OpPosting/CWealth/out/300CD08_7-16-08.pdf
DPW did not act in bad faith, fraudulently, capriciously or otherwise abuse its power in rejecting petitioner's 2007 petition alleging that there was good cause to expunge a founded report of child abuse which took place in 1987. A court order was entered at that time, finding that petitioner had sexually abused his daughter. There was no appeal from that finding.
Petitioner alleged that there was good cause for his record to be expunged because he was rehabilitated. He said that (1) he had undergone medical and psychiatric treatment and therapy; (2) he deeply regretted his actions; (3) at the time of the abuse, he was going through a divorce, but he now is in a stable relationship; (4) he has rebuilt his relationship with his daughter; (5) he currently is enrolled in nursing school; and (6) the founded child abuse report harmed his chances of obtaining gainful employment
The Law provides that the DPW Secretary may amend or expunge any record at any time upon good cause shown and notice to the appropriate subjects of the report. 23 Pa. C.S. §6341(a)(1). This section grants the Secretary the discretionary authority to amend any record upon good cause shown. J.C. v. Department of Public Welfare, 720 A.2d 193 (Pa. Cmwlth. 1998). Our courts will not review the actions of government bodies or administrative tribunals involving the exercise of discretion in the absence of bad faith, fraud, capricious action or abuse of power, which did not exist here.
The trial court’s orders were presumptive evidence that the child abuse report was accurate, and petitioner did not dispute the finding of abuse.
Tuesday, July 15, 2008
consumer - arbitration clause - duress, unconscionability - discovery
Hopkins v. Newday Financial, LLC - ED Pa. - June 30, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0759P.pdf
This memorandum order is meant to clarify a previous "limited discovery" order concerning "whether the arbitration agreements at issue are valid."
stay of legal actions if arbitration agreement is valid and binding
Under the Federal Arbitration Act, 9 U.S.C. § 3, federal courts are instructed to stay any suit in which an issue in dispute is properly referable to an arbitrator under a valid written arbitration agreement.
Before doing so, however, the court is obliged to satisfy itself that the arbitration agreement is valid and binding. Great W. Mortgage Corp. v. Peacock, 110 F.3d 222, 228 (3d Cir. 1997) (“Under the FAA the district court must be satisfied that the parties entered into a valid arbitration agreement.”). In making that determination, “generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements.” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996).
challenge to validity based on allegations of duress and unconscionability
In this case, plaintiffs seek to invalidate the arbitrations agreements on the grounds of duress and unconscionability. To consider these defenses, the court looks primarily to the law of Pennsylvania, because it is the forum state and appears to have a strong relationship with the agreements at issue. Gay v. CreditInform, 511 F.3d 369, 388 n.13 (3d Cir. 2007)
a) duress - Under Pennsylvania law, “[d]uress is defined as ‘that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness’”....
When the nature of the threat is economic, rather than physical, the doctrine of economic duress applies. “The important elements in the applicability of the doctrine of economic duress or business compulsion are that (1) there exists such pressure of circumstances which compels the injured party to involuntarily or against his will execute an agreement which results in economic loss, and (2) the injured party does not have an immediate legal remedy”....Duress will not lie where the aggrieved party had the opportunity to consult with counsel before entering into the allegedly coercive contract.
According to the named plaintiffs, they were forced to sign arbitration agreements in a compressed span of time under threat that their employment would terminate if they did not agree....[T]hey attest that, because the time for signing was so short, they were accorded no opportunity to seek the review of counsel. Id. Plaintiffs’ affidavits appear to present a set of circumstances that are at least arguably coercive enough to constitute duress under Pennsylvania law.
b) unconscionability - In Pennsylvania, “a contract or term is unconscionable, and therefore avoidable, where there was a lack of meaningful choice in the acceptance of the challenged provision and the provision unreasonably favors the party asserting it.” Salley v. Option One Mortgage Corp., 925 A.2d 115, 119 (Pa. 2007). Unconscion- ability, then, has procedural and substantive aspects.
As to procedural unconscionability, the touchstone is whether the party challenging the agreement had any meaningful choice regarding acceptance of its provisions. Thibodeau v. Comcast Corp., 912 A.2d 874, 886 (Pa. Super. Ct. 2006). Here, the plaintiffs have averred that they were presented with a contract of adhesion, and were given no opportunity to negotiate. An agreement is substantively unconscionable if it is “unreasonably favorable to the drafter”....
Plaintiffs argue that the arbitration agreement is unreasonably favorable to [defendant] NewDay, inter alia, because the arbitral forum’s rule prohibiting plaintiffs from proceeding as a class action, and forcing them instead to proceed individually. A series of Pennsylvania cases have held that limiting the use of the class-action vehicle, if it raises costs to the point of effectively preventing individual redress, is substantively unconscionable. See, e.g., Thibodeau, 912 A.2d at 883-84. The open question here is whether the forum’s rules raise costs to that level.
In addition, plaintiffs allege systemic bias on the part of the arbitral forum. If proved, such bias could potentially render the arbitration agreement fundamentally unfair to plaintiffs. But, as plaintiffs admit, they cannot prove that claim without discovery.
c) discovery - It is the court’s view that plaintiffs’ submissions, at the very least, highlight several questions of fact relevant to the validity of the arbitration agreements. When faced with a fact-intensive question regarding the arbitrability of a dispute, it is within the court’s discretion to allow for limited discovery into whether the arbitration agreements at issue are valid....That was the intent of this court’s order....It was not the court’s intent to limit discovery only to the question of the arbitral forum’s alleged bias, but to allow discovery more broadly into all of the defenses to arbitration raised by plaintiffs, as all appear to call for the resolution of factual questions.
http://www.paed.uscourts.gov/documents/opinions/08D0759P.pdf
This memorandum order is meant to clarify a previous "limited discovery" order concerning "whether the arbitration agreements at issue are valid."
stay of legal actions if arbitration agreement is valid and binding
Under the Federal Arbitration Act, 9 U.S.C. § 3, federal courts are instructed to stay any suit in which an issue in dispute is properly referable to an arbitrator under a valid written arbitration agreement.
Before doing so, however, the court is obliged to satisfy itself that the arbitration agreement is valid and binding. Great W. Mortgage Corp. v. Peacock, 110 F.3d 222, 228 (3d Cir. 1997) (“Under the FAA the district court must be satisfied that the parties entered into a valid arbitration agreement.”). In making that determination, “generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements.” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996).
challenge to validity based on allegations of duress and unconscionability
In this case, plaintiffs seek to invalidate the arbitrations agreements on the grounds of duress and unconscionability. To consider these defenses, the court looks primarily to the law of Pennsylvania, because it is the forum state and appears to have a strong relationship with the agreements at issue. Gay v. CreditInform, 511 F.3d 369, 388 n.13 (3d Cir. 2007)
a) duress - Under Pennsylvania law, “[d]uress is defined as ‘that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness’”....
When the nature of the threat is economic, rather than physical, the doctrine of economic duress applies. “The important elements in the applicability of the doctrine of economic duress or business compulsion are that (1) there exists such pressure of circumstances which compels the injured party to involuntarily or against his will execute an agreement which results in economic loss, and (2) the injured party does not have an immediate legal remedy”....Duress will not lie where the aggrieved party had the opportunity to consult with counsel before entering into the allegedly coercive contract.
According to the named plaintiffs, they were forced to sign arbitration agreements in a compressed span of time under threat that their employment would terminate if they did not agree....[T]hey attest that, because the time for signing was so short, they were accorded no opportunity to seek the review of counsel. Id. Plaintiffs’ affidavits appear to present a set of circumstances that are at least arguably coercive enough to constitute duress under Pennsylvania law.
b) unconscionability - In Pennsylvania, “a contract or term is unconscionable, and therefore avoidable, where there was a lack of meaningful choice in the acceptance of the challenged provision and the provision unreasonably favors the party asserting it.” Salley v. Option One Mortgage Corp., 925 A.2d 115, 119 (Pa. 2007). Unconscion- ability, then, has procedural and substantive aspects.
As to procedural unconscionability, the touchstone is whether the party challenging the agreement had any meaningful choice regarding acceptance of its provisions. Thibodeau v. Comcast Corp., 912 A.2d 874, 886 (Pa. Super. Ct. 2006). Here, the plaintiffs have averred that they were presented with a contract of adhesion, and were given no opportunity to negotiate. An agreement is substantively unconscionable if it is “unreasonably favorable to the drafter”....
Plaintiffs argue that the arbitration agreement is unreasonably favorable to [defendant] NewDay, inter alia, because the arbitral forum’s rule prohibiting plaintiffs from proceeding as a class action, and forcing them instead to proceed individually. A series of Pennsylvania cases have held that limiting the use of the class-action vehicle, if it raises costs to the point of effectively preventing individual redress, is substantively unconscionable. See, e.g., Thibodeau, 912 A.2d at 883-84. The open question here is whether the forum’s rules raise costs to that level.
In addition, plaintiffs allege systemic bias on the part of the arbitral forum. If proved, such bias could potentially render the arbitration agreement fundamentally unfair to plaintiffs. But, as plaintiffs admit, they cannot prove that claim without discovery.
c) discovery - It is the court’s view that plaintiffs’ submissions, at the very least, highlight several questions of fact relevant to the validity of the arbitration agreements. When faced with a fact-intensive question regarding the arbitrability of a dispute, it is within the court’s discretion to allow for limited discovery into whether the arbitration agreements at issue are valid....That was the intent of this court’s order....It was not the court’s intent to limit discovery only to the question of the arbitral forum’s alleged bias, but to allow discovery more broadly into all of the defenses to arbitration raised by plaintiffs, as all appear to call for the resolution of factual questions.
Monday, July 14, 2008
custody - in camera interview of child - presence of counsel - expert evaluation - admission into record
Ottolini v. Barrett - Superior Court - July 14, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/s39012_08.pdf
Pa. RCP 1915.11(b) mandates that counsel be present during in camera interview of child in custody case in which trial court relied at least in part on such interview. Sandra L.H. v. Joseph L.H., 444 A.2d 12241 (Pa. Super. 1982) is overruled to the extent that it may be inconsistent with the rule.
Remand is also required since a) the court relied on a psychological evaluation that was never entered into evidence, and b) the psychologist was not called as a witness or subject to cross-examination. Pa. CRP 1915.8(a).
http://www.courts.state.pa.us/OpPosting/Superior/out/s39012_08.pdf
Pa. RCP 1915.11(b) mandates that counsel be present during in camera interview of child in custody case in which trial court relied at least in part on such interview. Sandra L.H. v. Joseph L.H., 444 A.2d 12241 (Pa. Super. 1982) is overruled to the extent that it may be inconsistent with the rule.
Remand is also required since a) the court relied on a psychological evaluation that was never entered into evidence, and b) the psychologist was not called as a witness or subject to cross-examination. Pa. CRP 1915.8(a).
consumer - artibration - standard to vacate award
Gateway Funding Diversified Mortgage Services v. Field - ED Pa. - July 10, 20008
http://www.paed.uscourts.gov/documents/opinions/08D0790P.pdf
There was no basis in this case to overcome the "exceedingly deferential standard necessary to vacate, modify or amended an arbitration award which was sought to be confirmed under 9 USC sec. 9."
Section 9 of the Federal Arbitration Act (FAA) states that the court must grant an order confirming an arbitration award unless the award is vacated, modified, or corrected as prescribed in Sections 10 and 11 of this title. 9 U.S.C.A. § 9.
The review of an arbitration award is “extremely deferential” and vacatur is appropriate only in “exceedingly narrow” circumstances....An arbitration award may be set aside where there is an adequate showing of fraud, partiality, misconduct, violation of a specific command of law, or showing that enforcement would be contrary to public policy....The court’s ability to vacate an arbitration award is almost exclusively limited to these grounds, although an award found to be in manifest disregard of the law can also be vacated by the court.
In addition, procedural irregularities may result in such fundamental unfairness as to warrant the vacation of an arbitral award. For example, a court can vacate an arbitration award where an arbitrator received ex parte informati on to the prejudice of one of the parties; or where the arbitrator refused to admit certain evidence in rebuttal without giving parties warning about the application of evidentiary rules); or because the neutral arbitrator rendered decision without obtaining the signatures of the partisan arbitrators, so that there was a lack of evidence of any significant decision-making process by the majority of the board.
The net result of a court’s application of this standard is generally to affirm easily the arbitration award under this extremely deferential standard - a result that is squarely in line with the purpose behind the FAA where courts are tasked with reviewing an arbitration decision. When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator's “improvident, even silly, fact-finding” does not provide a basis for a reviewing court to refuse to enforce the award.
In discussing the courts' limited role in reviewing the merits of arbitration awards, we have stated that “‘courts ... have no business weighing the merits of the grievance [or] considering whether there is equity in a particular claim.’ ”.../When the judiciary does so, “it usurps a function which ... is entrusted to the arbitration tribunal.”
http://www.paed.uscourts.gov/documents/opinions/08D0790P.pdf
There was no basis in this case to overcome the "exceedingly deferential standard necessary to vacate, modify or amended an arbitration award which was sought to be confirmed under 9 USC sec. 9."
Section 9 of the Federal Arbitration Act (FAA) states that the court must grant an order confirming an arbitration award unless the award is vacated, modified, or corrected as prescribed in Sections 10 and 11 of this title. 9 U.S.C.A. § 9.
The review of an arbitration award is “extremely deferential” and vacatur is appropriate only in “exceedingly narrow” circumstances....An arbitration award may be set aside where there is an adequate showing of fraud, partiality, misconduct, violation of a specific command of law, or showing that enforcement would be contrary to public policy....The court’s ability to vacate an arbitration award is almost exclusively limited to these grounds, although an award found to be in manifest disregard of the law can also be vacated by the court.
In addition, procedural irregularities may result in such fundamental unfairness as to warrant the vacation of an arbitral award. For example, a court can vacate an arbitration award where an arbitrator received ex parte informati on to the prejudice of one of the parties; or where the arbitrator refused to admit certain evidence in rebuttal without giving parties warning about the application of evidentiary rules); or because the neutral arbitrator rendered decision without obtaining the signatures of the partisan arbitrators, so that there was a lack of evidence of any significant decision-making process by the majority of the board.
The net result of a court’s application of this standard is generally to affirm easily the arbitration award under this extremely deferential standard - a result that is squarely in line with the purpose behind the FAA where courts are tasked with reviewing an arbitration decision. When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator's “improvident, even silly, fact-finding” does not provide a basis for a reviewing court to refuse to enforce the award.
In discussing the courts' limited role in reviewing the merits of arbitration awards, we have stated that “‘courts ... have no business weighing the merits of the grievance [or] considering whether there is equity in a particular claim.’ ”.../When the judiciary does so, “it usurps a function which ... is entrusted to the arbitration tribunal.”
consumer - FTC Do-Not-Call registry - indefinite registration
http://edocket.access.gpo.gov/2008/pdf/E8-15994.pdf
SUMMARY: In this document, the FTC amends its rules under the Telephone Consumer Protection Act (TCPA) to require telemarketers to honor registrations with the National Do-Not-Call Registry indefinitely.
This action is consistent with Congress’s mandate in the Do-Not-Call Improvement Act of 2007, which prohibits the removal of numbers from the Registry unless the consumer cancels the registration or the number has been disconnected and reassigned or is otherwise invalid. The Commission also will continue to coordinate with the FTC on additional ways to improve the Registry’s accuracy.
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47 CFR § 64.1200 Delivery restrictions.
(c) (2) A residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government. Such do-not-call registrations must be honored indefinitely, or until the registration is cancelled by the consumer or the telephone number is removed by the database administrator.
SUMMARY: In this document, the FTC amends its rules under the Telephone Consumer Protection Act (TCPA) to require telemarketers to honor registrations with the National Do-Not-Call Registry indefinitely.
This action is consistent with Congress’s mandate in the Do-Not-Call Improvement Act of 2007, which prohibits the removal of numbers from the Registry unless the consumer cancels the registration or the number has been disconnected and reassigned or is otherwise invalid. The Commission also will continue to coordinate with the FTC on additional ways to improve the Registry’s accuracy.
+++++++++++++++++++
47 CFR § 64.1200 Delivery restrictions.
(c) (2) A residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government. Such do-not-call registrations must be honored indefinitely, or until the registration is cancelled by the consumer or the telephone number is removed by the database administrator.
Thursday, July 10, 2008
child abuse - expungement - founded report - PFA case
Philadelphia DHS v. DPW - Commonwealth Court - July 10, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1813CD07_7-10-08.pdf
A PFA order in collateral case finding father sexually abused his child provided a sufficient basis for a "founded report" of abuse, 23 P.S. 6303(a), under the Child Protective Services Law.
"Where only one defendant is charged with abuse in a PFA action, only one person defends those charges, an adjudication finds that such abuse occurred and prohibits further contact between the victim child and that defendant, the PFA order is an adjudication containing a sufficient definitive finding upon which DHS based the Founded Report."
These facts were held to distinguish this case from J.G. v. DPW, 795 A.2d 1089 (Pa. Cmwlth. 2002), where the court held that a generalized finding in a dependency case - with no definitive finding that a particular individiual was responsible for the abuse - did not preclude an appeal in a related expungement case.
"A Founded Report may be based upon any judicial adjudication finding that the child who is the subject of the report has been abused, including, but not limited to, criminal charges. The ALJ erred as a matter of law in relying upon J.G. to conclude that the PFA hearing in this case was not, on its own, able to support a Founded Report of abuse. Thus, the DPW did also err in adopting the recommendation of the ALJ and directing that the Founded Report of child abuse against R.G.S. be expunged."
http://www.courts.state.pa.us/OpPosting/CWealth/out/1813CD07_7-10-08.pdf
A PFA order in collateral case finding father sexually abused his child provided a sufficient basis for a "founded report" of abuse, 23 P.S. 6303(a), under the Child Protective Services Law.
"Where only one defendant is charged with abuse in a PFA action, only one person defends those charges, an adjudication finds that such abuse occurred and prohibits further contact between the victim child and that defendant, the PFA order is an adjudication containing a sufficient definitive finding upon which DHS based the Founded Report."
These facts were held to distinguish this case from J.G. v. DPW, 795 A.2d 1089 (Pa. Cmwlth. 2002), where the court held that a generalized finding in a dependency case - with no definitive finding that a particular individiual was responsible for the abuse - did not preclude an appeal in a related expungement case.
"A Founded Report may be based upon any judicial adjudication finding that the child who is the subject of the report has been abused, including, but not limited to, criminal charges. The ALJ erred as a matter of law in relying upon J.G. to conclude that the PFA hearing in this case was not, on its own, able to support a Founded Report of abuse. Thus, the DPW did also err in adopting the recommendation of the ALJ and directing that the Founded Report of child abuse against R.G.S. be expunged."
False Claims Act - charging excess rent in HCV program - OIG alert
http://edocket.access.gpo.gov/2008/pdf/E8-15663.pdf
SUMMARY: This notice provides important information recently issued by HUD’s Office of the Inspector General (OIG) on a recurring problem in the Housing Choice Voucher program. The problem which this notice addresses is landlords submitting false claims for periodic payments under housing assistance payment (HAP) contracts.
Fraud Information Bulletin: Excess Rent
Purpose
This Bulletin highlights a recurring problem in the Housing Choice Voucher (HCV) program. Specifically, this Bulletin discusses the submission by landlords of false claims for periodic payments under Housing Assistance Payment (HAP) contracts, where such landlords have violated their continuing obligations to not charge tenants rents in excess of what is authorized by the HAP contracts.
The Problem
Improperly requiring tenants to pay rent in excess of what is authorized by the applicable HAP contract represents both an actionable offense under the False Claims Act and deplorable behavior directed towards the very persons whom the HCV program was designed to serve. (Additionally, depending on the intent, such an action may qualify as a criminal offense under 18 U.S.C. 287, 1343, etc.) OIG will not tolerate such conduct, and rather will cooperate with efforts to bring offending landlords to justice and to remedy their wrongs.
Background
HUD administers Federal aid to local housing agencies (HAs) that is intended to implement housing assistance programs for low-income residents. With respect to the HCV program, HUD funds HAs via annual contributions contracts. The HAs, in turn, enter into HAP contracts with individual landlords. These HAP contracts provide for periodic housing assistance payments on behalf of eligible lowincome tenants. The HAP contracts also may require eligible tenants to make supplemental rent payments; however, the contracts expressly prohibit landlords from requiring tenants to pay rent in excess of what is authorized by the HAP contracts.
Pursuant to qui tam complaints and citizen complaints filed throughout the nation and subsequent activities, OIG has become aware of a number of landlords who have improperly required tenants to pay rent in excess of what is authorized by the HAP contracts, and thereby submitted or caused to be submitted false claims for HAP contract periodic rent payments.
Example
On July 29, 2005, a Connecticut tenant filed a qui tam complaint, under 31 U.S.C. 3730, against her former landlord. See Coleman v. Hernandez, 490 F. Supp.2d 278 (D. Conn. 2007). The tenant complained that pursuant to a HAP contract the landlord had agreed to accept $1,550 per month for the rental of an apartment in Stamford. Of this $1,550, the tenant was personally responsible for $20, and HUD via the HA paid the complementary $1,530. In spite of the explicit prohibition in the HAP contract, however, the landlord required the tenant to pay an ‘‘additional rent payment’’ of $60 on six separate occasions. In other words, the landlord inappropriately extracted an additional $360 from the helpless tenant. OIG is aware of numerous similar examples of this sort of egregious conduct nationwide.
Penalty
Pursuant to the False Claims Act, 31 U.S.C. 3729 et seq., persons who submit to HUD or a HUD intermediary claims that are false, fictitious or fraudulent are liable for an assessment equal to three times the amount of the claim, plus a penalty of between $5,500 and $11,000 per claim. The United States may take the position that the entire amount of its HAP payment, not merely the amount of the excess payment by the tenant, is the claim that should be trebled where landlords make false certifications concerning excess rent charged.
Additionally, each periodic rent payment constitutes a separate claim; thus, in the Coleman case the court levied a $33,000 (6 × $5,500) penalty against the landlord for her $360 victimization of the tenant.
Pertinent Information
If you have pertinent information regarding this bulletin, please contact: Office of Legal Counsel, Office of the Inspector General, Department of Housing and Urban Development, 451 Seventh St., SW., Room 8260, Washington, DC 20410. Dated: July 1, 2008.
Kenneth M. Donohue, Inspector General.
SUMMARY: This notice provides important information recently issued by HUD’s Office of the Inspector General (OIG) on a recurring problem in the Housing Choice Voucher program. The problem which this notice addresses is landlords submitting false claims for periodic payments under housing assistance payment (HAP) contracts.
Fraud Information Bulletin: Excess Rent
Purpose
This Bulletin highlights a recurring problem in the Housing Choice Voucher (HCV) program. Specifically, this Bulletin discusses the submission by landlords of false claims for periodic payments under Housing Assistance Payment (HAP) contracts, where such landlords have violated their continuing obligations to not charge tenants rents in excess of what is authorized by the HAP contracts.
The Problem
Improperly requiring tenants to pay rent in excess of what is authorized by the applicable HAP contract represents both an actionable offense under the False Claims Act and deplorable behavior directed towards the very persons whom the HCV program was designed to serve. (Additionally, depending on the intent, such an action may qualify as a criminal offense under 18 U.S.C. 287, 1343, etc.) OIG will not tolerate such conduct, and rather will cooperate with efforts to bring offending landlords to justice and to remedy their wrongs.
Background
HUD administers Federal aid to local housing agencies (HAs) that is intended to implement housing assistance programs for low-income residents. With respect to the HCV program, HUD funds HAs via annual contributions contracts. The HAs, in turn, enter into HAP contracts with individual landlords. These HAP contracts provide for periodic housing assistance payments on behalf of eligible lowincome tenants. The HAP contracts also may require eligible tenants to make supplemental rent payments; however, the contracts expressly prohibit landlords from requiring tenants to pay rent in excess of what is authorized by the HAP contracts.
Pursuant to qui tam complaints and citizen complaints filed throughout the nation and subsequent activities, OIG has become aware of a number of landlords who have improperly required tenants to pay rent in excess of what is authorized by the HAP contracts, and thereby submitted or caused to be submitted false claims for HAP contract periodic rent payments.
Example
On July 29, 2005, a Connecticut tenant filed a qui tam complaint, under 31 U.S.C. 3730, against her former landlord. See Coleman v. Hernandez, 490 F. Supp.2d 278 (D. Conn. 2007). The tenant complained that pursuant to a HAP contract the landlord had agreed to accept $1,550 per month for the rental of an apartment in Stamford. Of this $1,550, the tenant was personally responsible for $20, and HUD via the HA paid the complementary $1,530. In spite of the explicit prohibition in the HAP contract, however, the landlord required the tenant to pay an ‘‘additional rent payment’’ of $60 on six separate occasions. In other words, the landlord inappropriately extracted an additional $360 from the helpless tenant. OIG is aware of numerous similar examples of this sort of egregious conduct nationwide.
Penalty
Pursuant to the False Claims Act, 31 U.S.C. 3729 et seq., persons who submit to HUD or a HUD intermediary claims that are false, fictitious or fraudulent are liable for an assessment equal to three times the amount of the claim, plus a penalty of between $5,500 and $11,000 per claim. The United States may take the position that the entire amount of its HAP payment, not merely the amount of the excess payment by the tenant, is the claim that should be trebled where landlords make false certifications concerning excess rent charged.
Additionally, each periodic rent payment constitutes a separate claim; thus, in the Coleman case the court levied a $33,000 (6 × $5,500) penalty against the landlord for her $360 victimization of the tenant.
Pertinent Information
If you have pertinent information regarding this bulletin, please contact: Office of Legal Counsel, Office of the Inspector General, Department of Housing and Urban Development, 451 Seventh St., SW., Room 8260, Washington, DC 20410. Dated: July 1, 2008.
Kenneth M. Donohue, Inspector General.
Thursday, June 26, 2008
UC - willful misconduct - absenteeism - imprisonment
Weems v. UCBR - Commonwealth Court - publication ordered June 26, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1783CD07_6-26-08.pdf
A nine-month absence from work because of incarceration is willful misconduct, despite claimant's alleged eligibility for work release and employer's refusal to participate in the program.
While absenteeism alone does not constitute willful misconduct, "excessive absences and lack of good or adequate cause for the absence" can be. See Medina v. UCBR, 423 A.2d 469 (Pa. Cmwlth. 1980). Although the claimant told the employer that she would be serving a nine-month prison sentence for an assault conviction, her absence due to that incarceration "clearly constitutes excessive absence."
Imprisonment is not good or adequate cause for absence because “an employee who engages in criminal activity punishable by incarceration should realize that his ability to attend work may be jeopardized....It is the inability to attend work, not the criminal conduct, which supports the finding of willful misconduct....Thus, Claimant’s conduct did rise to the level of willful misconduct."
Claimant's alleged eligibility for work release not proven by her testimony
Claimant's testimony that she was eligible for work release was held to be insufficient to prove that she was, in fact, eligible, citing Cruz v. UCBR, 464 A.2d 656 (Pa. Cmwlth. 1983), where the court affirmed a denial of benefits "in part on the lack of any evidence of an order placing the claimant in such a program....Here, aside from Claimant’s testimony that she was eligible for work release, there is no evidence on the record of any court order related to a work release program. Even if such an order does exist, we are not aware of the limitations it might place on Claimant or the responsibilities it might impose on any potential employer."
Employer had a right to refuse to participate in the work release program
The court also rejected claimant's argument that the employer was "obligated to participate in a work release program. Employer cannot be expected to change the conditions of employment in order to accommodate Claimant. In finding the prohibition of unemployment benefits for incarcerated individuals constitutional, we suggested that the General Assembly 'could have felt that while on work release, because of restrictions necessarily imposed under those programs, prisoners were not sufficiently available for work so as to permit them to have a full range of employment options that other claimants have in pursuing new employment'....Employers need not adapt work release restrictions that change the terms of employment. The decision by Employer not to participate in a work release program does not excuse Claimant’s absence from work. Claimant had an obligation to report to work regardless of whether Employer agreed to participate in the work release program."
http://www.courts.state.pa.us/OpPosting/CWealth/out/1783CD07_6-26-08.pdf
A nine-month absence from work because of incarceration is willful misconduct, despite claimant's alleged eligibility for work release and employer's refusal to participate in the program.
While absenteeism alone does not constitute willful misconduct, "excessive absences and lack of good or adequate cause for the absence" can be. See Medina v. UCBR, 423 A.2d 469 (Pa. Cmwlth. 1980). Although the claimant told the employer that she would be serving a nine-month prison sentence for an assault conviction, her absence due to that incarceration "clearly constitutes excessive absence."
Imprisonment is not good or adequate cause for absence because “an employee who engages in criminal activity punishable by incarceration should realize that his ability to attend work may be jeopardized....It is the inability to attend work, not the criminal conduct, which supports the finding of willful misconduct....Thus, Claimant’s conduct did rise to the level of willful misconduct."
Claimant's alleged eligibility for work release not proven by her testimony
Claimant's testimony that she was eligible for work release was held to be insufficient to prove that she was, in fact, eligible, citing Cruz v. UCBR, 464 A.2d 656 (Pa. Cmwlth. 1983), where the court affirmed a denial of benefits "in part on the lack of any evidence of an order placing the claimant in such a program....Here, aside from Claimant’s testimony that she was eligible for work release, there is no evidence on the record of any court order related to a work release program. Even if such an order does exist, we are not aware of the limitations it might place on Claimant or the responsibilities it might impose on any potential employer."
Employer had a right to refuse to participate in the work release program
The court also rejected claimant's argument that the employer was "obligated to participate in a work release program. Employer cannot be expected to change the conditions of employment in order to accommodate Claimant. In finding the prohibition of unemployment benefits for incarcerated individuals constitutional, we suggested that the General Assembly 'could have felt that while on work release, because of restrictions necessarily imposed under those programs, prisoners were not sufficiently available for work so as to permit them to have a full range of employment options that other claimants have in pursuing new employment'....Employers need not adapt work release restrictions that change the terms of employment. The decision by Employer not to participate in a work release program does not excuse Claimant’s absence from work. Claimant had an obligation to report to work regardless of whether Employer agreed to participate in the work release program."
mortgage foreclosure - equitable subrogation - Pennsylvania v. Restatement
1312466 Ontario Inc v. Carr - Superior Court - June 25, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/a14025_08.pdf
U.S. Bank, mortgagee in 4th lien position loaned property owner (p/o) money, which p/o used to pay off first and second mortgage lienors. US Bank was unaware of the 3rd lienor (Ontario), due to a negligent error in its title search.
When p/o defaulted on 3d mortgage, Ontario sued and got judgment in mortgage foreclosure.
US Bank then filed petition to intervene, claiming that it was entitled to "equitable subrogation" under Restatement 3d, Property 7.6, which says that "one who fully performs an obligation of another, secured by a mortgage, becomes by subrogation the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment." Such equitable subrogation is an exception to the "first in time" rule that generally determines the priority of a lien.
The trial and appellate courts rejected US Bank's petition, holding that it was not entitled to equitable subrogation under Pennsylvania law, as that doctrine is defined by Home Owners' Loan Corp. v. Crouse, 30 A.2d 330 (Pa. Super. 1943) and First Commonwealth Bank v. Heller, 863 A.2d 1153 (Pa. Super. 2004) -- which are different from the Restatement definition in important respects.
"Like many other jurisdictions," Pennsylvania requires "four criteria to be met for equitable subrogation to apply....These four requirements are:
(1) the claimant paid the creditor to protect his own interests;
(2) the claimant did not act as a volunteer;
(3) the claimant was not primarily liable for the debt; and
(4) allowing subrogation will not cause injustice to the rights of others."
The appellate court found that there were two "important" differences between Pennsylvania's interpretation of equitable subrogation and that in the Restatement.
a) voluntary agent - Under Pennsylvania cases, a creditor such as U.S. Bank is considered an “entirely voluntary agent with no interest in the property” The Restatement does not adopt the 'volunteer' rule but instead only requires that the subrogee paid the creditor to protect some interest. "Thus, under the Restatement, a mortgagee pays off existing loans in order to protect its own interest in gaining the first priority lien position, and therefore would be entitled to the remedy of equitable subrogation."
b) mistake - Another important difference between Pennsylvania law on equitable subrogation and the Restatement’s approach is also illustrated in the Home Owners’ decision, where the court said that “courts of equity will not relieve a party from the consequences of an error due to his own ignorance or carelessness when there were available means which would have enabled him to avoid the mistake if reasonable care had been exercised.... [A] creditor’s mistake 'can be attributed only to its own negligence in failing to search or discover what clearly appeared on the public records'....The Restatement, on the other hand, says that 'subrogation can be granted even if the payor had actual knowledge of the intervening interest; the payor’s notice, actual or constructive, is not necessarily relevant'....Instead, what is relevant under the Restatement is 'whether the payor reasonably expected to get security with a priority equal to the mortgage being paid.'....In fact, the Restatement declares that a refinancing mortgagee should be presumed to have this expectation, even if they are aware of a remaining lien, unless there is affirmative proof that the mortgagee intended to subordinate its mortgage to the remaining interest."
Although the court pointed out that existing state doctrine might sometimes lead to undesirable results*** and "may be ripe for legislative review," it determined that it was bound by its own prior decisions "and principles of stare decisis." The court was also influenced by "the fact that it was US Bank's carelessness that brought about the pecuniary loss that it is now facing."
*** The court posited that, given Pennsylvania doctrine, US Bank would not made the loan "leaving [borrower] in all likelihood unable to refinance his existing loan" -- a scenario that it thought "may be a frequent dilemma for homeowners amidst the current mortgage crisis....."
http://www.courts.state.pa.us/OpPosting/Superior/out/a14025_08.pdf
U.S. Bank, mortgagee in 4th lien position loaned property owner (p/o) money, which p/o used to pay off first and second mortgage lienors. US Bank was unaware of the 3rd lienor (Ontario), due to a negligent error in its title search.
When p/o defaulted on 3d mortgage, Ontario sued and got judgment in mortgage foreclosure.
US Bank then filed petition to intervene, claiming that it was entitled to "equitable subrogation" under Restatement 3d, Property 7.6, which says that "one who fully performs an obligation of another, secured by a mortgage, becomes by subrogation the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment." Such equitable subrogation is an exception to the "first in time" rule that generally determines the priority of a lien.
The trial and appellate courts rejected US Bank's petition, holding that it was not entitled to equitable subrogation under Pennsylvania law, as that doctrine is defined by Home Owners' Loan Corp. v. Crouse, 30 A.2d 330 (Pa. Super. 1943) and First Commonwealth Bank v. Heller, 863 A.2d 1153 (Pa. Super. 2004) -- which are different from the Restatement definition in important respects.
"Like many other jurisdictions," Pennsylvania requires "four criteria to be met for equitable subrogation to apply....These four requirements are:
(1) the claimant paid the creditor to protect his own interests;
(2) the claimant did not act as a volunteer;
(3) the claimant was not primarily liable for the debt; and
(4) allowing subrogation will not cause injustice to the rights of others."
The appellate court found that there were two "important" differences between Pennsylvania's interpretation of equitable subrogation and that in the Restatement.
a) voluntary agent - Under Pennsylvania cases, a creditor such as U.S. Bank is considered an “entirely voluntary agent with no interest in the property” The Restatement does not adopt the 'volunteer' rule but instead only requires that the subrogee paid the creditor to protect some interest. "Thus, under the Restatement, a mortgagee pays off existing loans in order to protect its own interest in gaining the first priority lien position, and therefore would be entitled to the remedy of equitable subrogation."
b) mistake - Another important difference between Pennsylvania law on equitable subrogation and the Restatement’s approach is also illustrated in the Home Owners’ decision, where the court said that “courts of equity will not relieve a party from the consequences of an error due to his own ignorance or carelessness when there were available means which would have enabled him to avoid the mistake if reasonable care had been exercised.... [A] creditor’s mistake 'can be attributed only to its own negligence in failing to search or discover what clearly appeared on the public records'....The Restatement, on the other hand, says that 'subrogation can be granted even if the payor had actual knowledge of the intervening interest; the payor’s notice, actual or constructive, is not necessarily relevant'....Instead, what is relevant under the Restatement is 'whether the payor reasonably expected to get security with a priority equal to the mortgage being paid.'....In fact, the Restatement declares that a refinancing mortgagee should be presumed to have this expectation, even if they are aware of a remaining lien, unless there is affirmative proof that the mortgagee intended to subordinate its mortgage to the remaining interest."
Although the court pointed out that existing state doctrine might sometimes lead to undesirable results*** and "may be ripe for legislative review," it determined that it was bound by its own prior decisions "and principles of stare decisis." The court was also influenced by "the fact that it was US Bank's carelessness that brought about the pecuniary loss that it is now facing."
*** The court posited that, given Pennsylvania doctrine, US Bank would not made the loan "leaving [borrower] in all likelihood unable to refinance his existing loan" -- a scenario that it thought "may be a frequent dilemma for homeowners amidst the current mortgage crisis....."
UC- vol. quit - salary cap
Pearson v. UCBR - Commonwealth Court - June 26, 2008 - UNPUBLISHED
http://www.courts.state.pa.us/OpPosting/CWealth/out/2277CD07_6-26-08.pdf
Claimant was not eligible for benefits where she quit her job after the employer told her that "there would be no possibility of either promotion or increase in pay." Such a statement might "dampen her enthusiasm for continued employment; however, dampened enthusiasm is not a necessitous and compelling reason to quit."
"Claimant’s displeasure with being 'salary capped' was mere dissatisfaction with her working conditions....[M]ere dissatisfaction with one's working conditions does not constitute cause of a necessitous and compelling nature for terminating one's employment. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657 (Pa. Cmwlth. 2006); McKeown v. Unemployment Compensation Board of Review, 442 A.2d 1257 (Pa. Cmwlth. 1982)."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2277CD07_6-26-08.pdf
Claimant was not eligible for benefits where she quit her job after the employer told her that "there would be no possibility of either promotion or increase in pay." Such a statement might "dampen her enthusiasm for continued employment; however, dampened enthusiasm is not a necessitous and compelling reason to quit."
"Claimant’s displeasure with being 'salary capped' was mere dissatisfaction with her working conditions....[M]ere dissatisfaction with one's working conditions does not constitute cause of a necessitous and compelling nature for terminating one's employment. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657 (Pa. Cmwlth. 2006); McKeown v. Unemployment Compensation Board of Review, 442 A.2d 1257 (Pa. Cmwlth. 1982)."
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