Penn-Delco Schoot District v. UCBR - Cmwlth. Court - November 17, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/537CD08_11-17-08.pdf
1) The UCBR is the ultimate arbiter of credibility and fact-finding, citing Peak v. UCBR, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985). and Treon v. UCBR, 499 Pa. 455, 453 A.2d 960 (1982)
2) "[E]xcessive absenteeism, when properly reported and justified, is not willful misconduct, and illness is a proper justification. See Sprague v. UCBR, 647 A.2d 675, 680 (Pa. Cmwlth. 1994) (six properly reported absences based on illness did not constitute willful misconduct); Tri-Corp v. UCBR, 432 A.2d 1158, 1159–60 (Pa. Cmwlth. 1981) (properly reported two week leave for illness did not constitute willful misconduct).
3) “Where an employee is discharged for refusing or failing to follow an employer’s directive, both the reasonableness of the demand and the reasonableness of the employee's refusal must be examined.” Dougherty v. UCBR, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).
Where the action of the employee is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. UCBR, 450 A.2d 305 (Pa. Cmwlth. 1982). “In other words, if there was ‘good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.” Id. at 308.
Here, it is undisputed that Employer scheduled a mandatory meeting with Claimant, and Claimant did not attend....The Board determined Employer’s mandatory meeting directive was unreasonable in light of Claimant’s medical documentation which had not yet released her to return to work. The Board also concluded Claimant had good cause to refuse Employer’s unreasonable request.
The Board’s determinations are supported by substantial evidence. Accordingly, we affirm the Board’s conclusion that Claimant’s failure to attend the mandatory meeting did not constitute willful misconduct. See Thompson v. UCBR, 723 A.2d 743, 744 (Pa. Cmwlth. 1999) (finding claimant’s illness to be good cause for violating employer rule requiring absent employees to find replacement workers); Kindrew v. UCBR, 388 A.2d 801, 802–03 (Pa. Cmwlth. 1978) (finding an employer’s requirement that claimant attend work or face dismissal unreasonable if claimant were ill).
Monday, November 17, 2008
Friday, November 14, 2008
UC- appeal - timeliness
Carson Helicopters v. UCBR - Cmwlth. Court - November 14, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/253CD08_11-14-08.pdf
Employer should have been granted permission to appeal nunc pro tunc where the referee decision was erroneously dated 5 days prior to the date of the actual referee. Both dates were listed on the Referee Decision. In addition, the Board should have accepted the employer's hearsay testimony at the hearing, because it was corroborated by official documents - the referee decision and envelope in which it was mailed.
Moreover, under any state of facts, it is uncontroverted that the Board received Employer’s appeal before the statutory 15-day deadline had expired. "The Board’s conduct in this manner was not only sloppy but shocking in its disregard of its statutory responsibilities."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/253CD08_11-14-08.pdf
Employer should have been granted permission to appeal nunc pro tunc where the referee decision was erroneously dated 5 days prior to the date of the actual referee. Both dates were listed on the Referee Decision. In addition, the Board should have accepted the employer's hearsay testimony at the hearing, because it was corroborated by official documents - the referee decision and envelope in which it was mailed.
Moreover, under any state of facts, it is uncontroverted that the Board received Employer’s appeal before the statutory 15-day deadline had expired. "The Board’s conduct in this manner was not only sloppy but shocking in its disregard of its statutory responsibilities."
Wednesday, November 12, 2008
UC - vol. quit - sexual harassment
Willow Valley Retirement Community v. UCBR - Cmwlth. Court - 11-12-08 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/188CD08_11-12-08.pdf
Claimant testified that the ER vice-president/COO told her that she "needed to show more emotion and use the feminine side of her personality in order to improve her business relationships." This evidence was unchallenged by the employer.
The court held that these comments "are sexually discriminatory and degrading on their face. Claimant reasonably understood his comments to mean that she should be less strong and play up her sexuality in the performance of her job." The comments "went beyond conduct that must be tolerated in a work place and produced circumstances which would compel a reasonable person to terminate employment."
Claimant acted reasonably in resigning, without going through regular complaint channels. She "believed that there was no recourse to remedy the situation," since the vice president/COO was the second highest person in the organization.
Her attempt to rescind her resignation after the employer took steps to replace her is irrelevant, because this was a voluntary quit with cause of a necessitous and compelling reason. Because "Claimant has demonstrated circumstances which produced real and substantial pressure to terminate employment, Claimant only needed to show that she made a reasonable attempt to preserve her employment relationship or show that such action was futile to remain eligible for benefits."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/188CD08_11-12-08.pdf
Claimant testified that the ER vice-president/COO told her that she "needed to show more emotion and use the feminine side of her personality in order to improve her business relationships." This evidence was unchallenged by the employer.
The court held that these comments "are sexually discriminatory and degrading on their face. Claimant reasonably understood his comments to mean that she should be less strong and play up her sexuality in the performance of her job." The comments "went beyond conduct that must be tolerated in a work place and produced circumstances which would compel a reasonable person to terminate employment."
Claimant acted reasonably in resigning, without going through regular complaint channels. She "believed that there was no recourse to remedy the situation," since the vice president/COO was the second highest person in the organization.
Her attempt to rescind her resignation after the employer took steps to replace her is irrelevant, because this was a voluntary quit with cause of a necessitous and compelling reason. Because "Claimant has demonstrated circumstances which produced real and substantial pressure to terminate employment, Claimant only needed to show that she made a reasonable attempt to preserve her employment relationship or show that such action was futile to remain eligible for benefits."
real property - tax sale - notice
Popple v. Luzerne Co. Tax Claim Bureau - Cmwlth. Court - November 12, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2224CD07_11-12-08.pdf
Former owners (F/O) objected to tax sale nearly four years after it took place. The court held that due process was satisfied and F/Os were "personally served" and had actual notice of tax sale under 72 P.S. §5860.602 where
- the notice was sent to the "care of" address listed on the deed and
- the address was the same as two businesses (including a realty co.) which they owned
- was signed for by a person with the same last name, as their agent, who had many times signed for mail for the F/Os
"[A]ctual notice of a pending tax sale waives strict compliance with statutory notice require-ments, and technical deficiencies in those notice requirements do not invalidate a tax sale." Stanford-Gale v. Tax Claim Bureau, 816 A.2d 1214, 1217 (Pa. Cmwlth. 2003) "[A]ctual notice is such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put him upon inquiry." Sabbeth v. Tax Claim Bureau, 714 A.2d 514, 517 (Pa. Cmwlth. 1998).
Here, the court considered the "totality of the circumstances," including that that"Bureau sent notice to the address for the grantees indicated on the deed, and it was signed for by someone with the same last name who was permitted by the Post Office to receive certified mail at this post office box, who indicated his capacity as 'Agent' and who signed for certified mail addressed to the [F/Os] on other occasions. As a result, the Court concludes that the Bureau followed common sense business practices and that the [former owners] had implied actual notice...."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2224CD07_11-12-08.pdf
Former owners (F/O) objected to tax sale nearly four years after it took place. The court held that due process was satisfied and F/Os were "personally served" and had actual notice of tax sale under 72 P.S. §5860.602 where
- the notice was sent to the "care of" address listed on the deed and
- the address was the same as two businesses (including a realty co.) which they owned
- was signed for by a person with the same last name, as their agent, who had many times signed for mail for the F/Os
"[A]ctual notice of a pending tax sale waives strict compliance with statutory notice require-ments, and technical deficiencies in those notice requirements do not invalidate a tax sale." Stanford-Gale v. Tax Claim Bureau, 816 A.2d 1214, 1217 (Pa. Cmwlth. 2003) "[A]ctual notice is such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put him upon inquiry." Sabbeth v. Tax Claim Bureau, 714 A.2d 514, 517 (Pa. Cmwlth. 1998).
Here, the court considered the "totality of the circumstances," including that that"Bureau sent notice to the address for the grantees indicated on the deed, and it was signed for by someone with the same last name who was permitted by the Post Office to receive certified mail at this post office box, who indicated his capacity as 'Agent' and who signed for certified mail addressed to the [F/Os] on other occasions. As a result, the Court concludes that the Bureau followed common sense business practices and that the [former owners] had implied actual notice...."
Monday, November 10, 2008
mortgage - particular debt v. open-ended; rules of prof. conduct do not create cause of action
Weiss & Associates v. Tulloch - Superior Court - October 30, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56033_08.pdf
Plaintiff law firm took several mortgages to secure payment of attorney fees by defendant. Plaintiff got a portion of the proceeds on two properties, then foreclosed on a third for alleged ongoing liability for attorney fees by defendants.
Held, the mortgage on the third property was not an open-ended one but a "formal documents of a specific character that should be strictly construed" to cover payments of a motrgage that covered only a specific advance of funds and nor more. Here, neither than note nor the mortgage indicated coverage of future attorney fees.
Judgment for plaintiff vacated and case remanded for entry of judgment for defendant.
Defendant's claim that plaintiff's violation of the rules of professional conduct, concerning conflicts of interest, was rejected. The rules address grounds for disciplinary action against attorneys and are not substantive law. A violation of the rules does not create a cause of action.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56033_08.pdf
Plaintiff law firm took several mortgages to secure payment of attorney fees by defendant. Plaintiff got a portion of the proceeds on two properties, then foreclosed on a third for alleged ongoing liability for attorney fees by defendants.
Held, the mortgage on the third property was not an open-ended one but a "formal documents of a specific character that should be strictly construed" to cover payments of a motrgage that covered only a specific advance of funds and nor more. Here, neither than note nor the mortgage indicated coverage of future attorney fees.
Judgment for plaintiff vacated and case remanded for entry of judgment for defendant.
Defendant's claim that plaintiff's violation of the rules of professional conduct, concerning conflicts of interest, was rejected. The rules address grounds for disciplinary action against attorneys and are not substantive law. A violation of the rules does not create a cause of action.
Thursday, November 06, 2008
Home Improvement Consumer Protection Act (HICPA) - summary
Summary of Home Improvement Consumer Protection Act (HICPA)
Act 132 of 2008; Act of October 17, 2008- SB 100, PN 2484 - effective July 1, 2009
A. § 2 - Definitions – highlights
• Covers repair, replacement, demolition, construction, painting, HVAC, etc.
• Protects only private residences
• Protects only primary residence, if owner has three or more residences
• Protects only owner or those authorized to act on owner’s behalf
• Total cash price must be more than $500
• New home construction not covered
B. § 3 - Contractor Registration with Bureau of Consumer Protection
• Registration required before doing any work or holding out as “contractor”
• Public access to registration information – toll-free number
• No HICPA licenses can be granted to licensees under the Secondary Mortgage Loan Act, 7 P.S. §6601 et seq., or the Mortgage Banker/Brokers and Consumer Equity Protection Act, 63 P.S. §456.101 et seq.
C. § 4 - Registration information
Contractors must provide the following information to the Bureau of Consumer Protection:
• Name(s), address, driver’s license #, federal employer ID #, SSN
• Prior relevant criminal offenses (fraud, etc.)
• Prior bankruptcies – last 10 years
• Civil judgments related to home improvement (H/I) transaction
• Proof of liability insurance – personal injury ($50k), property damage ($5k)
D. § 7(a) - Home Improvement Contracts – not valid/enforceable, unless...
• Written, legible, signed by all parties
• ID info on all contractors, subcontractors
• Contains the entire agreement
• Description of work, materials, specs
• No changes without written change order
• Sales price, down payments
• Contractor agreement to maintain liability insurance
• Toll-free number to Bureau of Consumer Protection
• Notice of right of rescission w/o penalty w/in 3 business days of signing
• Copy of completed contract to owner at time of execution
E. § 7(e) - Voidable clauses – voidable by the owner
• Hold-harmless clause
• Waiver of any local/state/federal safety or building code requirement
• Confession of judgment clause
• Waiver of right to jury trial
• Assignment of wages
• Agreement not to assert any claim or defense
• Grant of attorney fees or costs to contractor
• Release of liability for collections of payments, repossession
• Waiver of rights under HICPA
• Automatic/recurring renewal provision (w/exceptions)
F. § 7(f) - Home improvement retailer contracts (HIRC)
• Covers retailers (undefined) with >$50M net worth who do not perform home improvements
• H/I retailer shall comply with HICPA contract requirements (sec. 7 of SB 100)
• HIRCs not valid or enforceable, unless in writing with all of following:
▫ name, address, phone of retailer
▫ information about person signing for retailer
▫ complies with most provisions in (D), above
G. § 7(g) - Contractor right of equitable recovery
• Nothing in HICPA precludes contractor from recovery of payment
• For work performed
• Based on reasonable value of services requested by the owner, if
• Contractor has complied with (D), above, and
• Court determines it would be “inequitable” to deny such recovery
H. § 7(e) - Arbitration clause
• Nothing in this act shall preclude a court from setting aside an arbitration clause on any basis permitted under Pennsylvania law.”
• If the contract contains an arbitration clause, it shall meet the following requirements or be deemed void upon motion of either party
▫ text of clause must be in capital letters
▫ 12 pt. bold-face type
▫ on separate page from rest of contract
▫ separate line for each party to show assent to be bound
▫ not effective unless both parties sign and date
▫ shall clearly state whether decision is binding or appealable to court
▫ shall state whether facts/documents/decision are confidential
• This provision might well be pre-empted by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. See e.g., Gay v. CreditInform, 511 F.3d 369 (3d Cir. 2007).
I. § 8(a) - Home Improvement Fraud is a crime
A person commits “home improvement fraud” if with the intent to defraud, or, injure anyone, or with the knowledge that he is facilitating fraud or injury by anyone, the actor:
• Makes a false/misleading statement to encourage a person to enter into a H/I contract, or to justify an increase in a previously agreed upon price; or
• Receives an advance payment and fails to perform the contract when specified, and fails to return the payment. Exception: force majeure, labor strike, etc.; or
• Misrepresents or conceals identifying contractor ID information – while soliciting a person to enter into an agreement; or
• Damages property to induce a person to enter into a contract; or
• Falsely represents a government affiliation to induce entry into a contract; or
• Misrepresents an item as a special order; or
• Alters a H/I contract or payment agreement without the consumer’s consent; or
• Publishes a false or deceptive advertisement, in violation of relevant state law about advts.
J. § 8(b), (c), (d) - Prosecution of Home Improvement Fraud
• Grading – M-1 or felony, depending on $, age of victim, priors etc.
• Penalties may include revocation/suspension of H/I contractor certificate
• DAs have authority to investigate and start prosecutions
• State Atty. Genl. can investigate/prosecute multi-county violators
K. § 9 - Prohibited Acts
No person shall:
• Fail to register, as required
• Fail to refund money w/in 10 days of request for refund, if all the following apply
▫ no substantial work has been performed at time of request
▫ more than 45 days have elapsed since starting date in contract
• Accept a certificate of completion or the like, knowing that it is false or work isn’t complete
• Knowingly use a false proof of performance in order to make/accept an assignment, or get/grant credit or loan or right to receive payment under an H/I contract
• Abandon or fail to perform a H/I contract, without justification (e.g., nonpayment)
• Materially deviate from plans/specs, without signed/dated change order, with prices
• Be involved in financing, knowing that the H/I contract states higher than actual price
• Advertise or offer to perform a H/I contract if the person does not intend to accept or perform the contract at the advertised price
• Demand or received any payment before the contract is signed
• Receive a deposit of more than 1/3 of the contract price (contracts of more than $1,000)
• For a salesman to fail to account for/remit a payment to a contractor whom s/he represents
• Change liability or identifying information, after the contract is entered into, in a fraudulent or deceptive manner likely to cause confusion or misunderstanding, without advising the owner in writing within 10 days of any such change.
L. § 10 – Unfair Trade Practices & Consumer Protection Law (UTPCPL)
• A violation of any provisions of HICPA shall be deemed a violation of the UTPCPL.
• Nothing in HICPA shall preclude an owner from exercising a right under the UTPCPL.
M. § 11 – Regulations
The Bureau of Consumer Protection may adopt rules and regulations to carry out HICPA.
N. § 12 – Pre-emption of local registration
• Registration – registration under HICPA precludes other fees/licensing/registration
• Building permits – Local govt. can require building permits and reasonable permit fee
• Local govt. responsibilities remain under Pa. Construction Code and Worker’s Comp. Law
• No effect on trade licensing standards (plumber, electrician, etc.)
• No effect on local regs. for liability insurance adopted before 01-06 and in effect on 07-09
O. § 13 – Exemptions - HICPA does not apply to local, state or federal government
P. § 14 – Repeal - All inconsistent acts are repealed.
prepared by:
Donald Marritz, staff attorney
Regional Housing Legal Services
October 31, 2008
Act 132 of 2008; Act of October 17, 2008- SB 100, PN 2484 - effective July 1, 2009
A. § 2 - Definitions – highlights
• Covers repair, replacement, demolition, construction, painting, HVAC, etc.
• Protects only private residences
• Protects only primary residence, if owner has three or more residences
• Protects only owner or those authorized to act on owner’s behalf
• Total cash price must be more than $500
• New home construction not covered
B. § 3 - Contractor Registration with Bureau of Consumer Protection
• Registration required before doing any work or holding out as “contractor”
• Public access to registration information – toll-free number
• No HICPA licenses can be granted to licensees under the Secondary Mortgage Loan Act, 7 P.S. §6601 et seq., or the Mortgage Banker/Brokers and Consumer Equity Protection Act, 63 P.S. §456.101 et seq.
C. § 4 - Registration information
Contractors must provide the following information to the Bureau of Consumer Protection:
• Name(s), address, driver’s license #, federal employer ID #, SSN
• Prior relevant criminal offenses (fraud, etc.)
• Prior bankruptcies – last 10 years
• Civil judgments related to home improvement (H/I) transaction
• Proof of liability insurance – personal injury ($50k), property damage ($5k)
D. § 7(a) - Home Improvement Contracts – not valid/enforceable, unless...
• Written, legible, signed by all parties
• ID info on all contractors, subcontractors
• Contains the entire agreement
• Description of work, materials, specs
• No changes without written change order
• Sales price, down payments
• Contractor agreement to maintain liability insurance
• Toll-free number to Bureau of Consumer Protection
• Notice of right of rescission w/o penalty w/in 3 business days of signing
• Copy of completed contract to owner at time of execution
E. § 7(e) - Voidable clauses – voidable by the owner
• Hold-harmless clause
• Waiver of any local/state/federal safety or building code requirement
• Confession of judgment clause
• Waiver of right to jury trial
• Assignment of wages
• Agreement not to assert any claim or defense
• Grant of attorney fees or costs to contractor
• Release of liability for collections of payments, repossession
• Waiver of rights under HICPA
• Automatic/recurring renewal provision (w/exceptions)
F. § 7(f) - Home improvement retailer contracts (HIRC)
• Covers retailers (undefined) with >$50M net worth who do not perform home improvements
• H/I retailer shall comply with HICPA contract requirements (sec. 7 of SB 100)
• HIRCs not valid or enforceable, unless in writing with all of following:
▫ name, address, phone of retailer
▫ information about person signing for retailer
▫ complies with most provisions in (D), above
G. § 7(g) - Contractor right of equitable recovery
• Nothing in HICPA precludes contractor from recovery of payment
• For work performed
• Based on reasonable value of services requested by the owner, if
• Contractor has complied with (D), above, and
• Court determines it would be “inequitable” to deny such recovery
H. § 7(e) - Arbitration clause
• Nothing in this act shall preclude a court from setting aside an arbitration clause on any basis permitted under Pennsylvania law.”
• If the contract contains an arbitration clause, it shall meet the following requirements or be deemed void upon motion of either party
▫ text of clause must be in capital letters
▫ 12 pt. bold-face type
▫ on separate page from rest of contract
▫ separate line for each party to show assent to be bound
▫ not effective unless both parties sign and date
▫ shall clearly state whether decision is binding or appealable to court
▫ shall state whether facts/documents/decision are confidential
• This provision might well be pre-empted by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. See e.g., Gay v. CreditInform, 511 F.3d 369 (3d Cir. 2007).
I. § 8(a) - Home Improvement Fraud is a crime
A person commits “home improvement fraud” if with the intent to defraud, or, injure anyone, or with the knowledge that he is facilitating fraud or injury by anyone, the actor:
• Makes a false/misleading statement to encourage a person to enter into a H/I contract, or to justify an increase in a previously agreed upon price; or
• Receives an advance payment and fails to perform the contract when specified, and fails to return the payment. Exception: force majeure, labor strike, etc.; or
• Misrepresents or conceals identifying contractor ID information – while soliciting a person to enter into an agreement; or
• Damages property to induce a person to enter into a contract; or
• Falsely represents a government affiliation to induce entry into a contract; or
• Misrepresents an item as a special order; or
• Alters a H/I contract or payment agreement without the consumer’s consent; or
• Publishes a false or deceptive advertisement, in violation of relevant state law about advts.
J. § 8(b), (c), (d) - Prosecution of Home Improvement Fraud
• Grading – M-1 or felony, depending on $, age of victim, priors etc.
• Penalties may include revocation/suspension of H/I contractor certificate
• DAs have authority to investigate and start prosecutions
• State Atty. Genl. can investigate/prosecute multi-county violators
K. § 9 - Prohibited Acts
No person shall:
• Fail to register, as required
• Fail to refund money w/in 10 days of request for refund, if all the following apply
▫ no substantial work has been performed at time of request
▫ more than 45 days have elapsed since starting date in contract
• Accept a certificate of completion or the like, knowing that it is false or work isn’t complete
• Knowingly use a false proof of performance in order to make/accept an assignment, or get/grant credit or loan or right to receive payment under an H/I contract
• Abandon or fail to perform a H/I contract, without justification (e.g., nonpayment)
• Materially deviate from plans/specs, without signed/dated change order, with prices
• Be involved in financing, knowing that the H/I contract states higher than actual price
• Advertise or offer to perform a H/I contract if the person does not intend to accept or perform the contract at the advertised price
• Demand or received any payment before the contract is signed
• Receive a deposit of more than 1/3 of the contract price (contracts of more than $1,000)
• For a salesman to fail to account for/remit a payment to a contractor whom s/he represents
• Change liability or identifying information, after the contract is entered into, in a fraudulent or deceptive manner likely to cause confusion or misunderstanding, without advising the owner in writing within 10 days of any such change.
L. § 10 – Unfair Trade Practices & Consumer Protection Law (UTPCPL)
• A violation of any provisions of HICPA shall be deemed a violation of the UTPCPL.
• Nothing in HICPA shall preclude an owner from exercising a right under the UTPCPL.
M. § 11 – Regulations
The Bureau of Consumer Protection may adopt rules and regulations to carry out HICPA.
N. § 12 – Pre-emption of local registration
• Registration – registration under HICPA precludes other fees/licensing/registration
• Building permits – Local govt. can require building permits and reasonable permit fee
• Local govt. responsibilities remain under Pa. Construction Code and Worker’s Comp. Law
• No effect on trade licensing standards (plumber, electrician, etc.)
• No effect on local regs. for liability insurance adopted before 01-06 and in effect on 07-09
O. § 13 – Exemptions - HICPA does not apply to local, state or federal government
P. § 14 – Repeal - All inconsistent acts are repealed.
prepared by:
Donald Marritz, staff attorney
Regional Housing Legal Services
October 31, 2008
Wednesday, November 05, 2008
Truth in Lending - tolerance for accuracy - special pleading not required
In re Sterten - 3d Circuit - November 4, 2008
http://www.ca3.uscourts.gov/opinarch/072237p.pdf
The Truth in Lending Act, 15 U.S.C. § 1601, et seq., imposes disclosure requirements on creditors, exposing them to such penalties as money damages, attorney’s fees and recission for failure to disclose finance charges accurately. See § 1635(a) & (g); § 1640(a).
However, in 1995, in an effort to prevent creditors from being subject to “extraordinary liability” for small disclosure discrepancies, Congress amended the Act to include a “tolerances for accuracy” provision. Under that provision, a creditor is not liable for undisclosed finance charges if those charges fall within a specified range of error. 15 U.S.C. § 1605(f).
We decide whether a Truth in Lending Act defendant who does not specifically defend on the ground that any inaccuracies in its disclosure fell within the tolerance range waives the protection that provision provides. In procedural parlance, we decide whether a tolerances for accuracy defense is affirmative (requiring that it be pled specifically) or general (thus not requiring that it be pled specifically).
We hold that the defense is general, and that a defendant need not specifically raise the Act’s tolerances provision in order to avoid liability for disclosure errors that fall within its range.
http://www.ca3.uscourts.gov/opinarch/072237p.pdf
The Truth in Lending Act, 15 U.S.C. § 1601, et seq., imposes disclosure requirements on creditors, exposing them to such penalties as money damages, attorney’s fees and recission for failure to disclose finance charges accurately. See § 1635(a) & (g); § 1640(a).
However, in 1995, in an effort to prevent creditors from being subject to “extraordinary liability” for small disclosure discrepancies, Congress amended the Act to include a “tolerances for accuracy” provision. Under that provision, a creditor is not liable for undisclosed finance charges if those charges fall within a specified range of error. 15 U.S.C. § 1605(f).
We decide whether a Truth in Lending Act defendant who does not specifically defend on the ground that any inaccuracies in its disclosure fell within the tolerance range waives the protection that provision provides. In procedural parlance, we decide whether a tolerances for accuracy defense is affirmative (requiring that it be pled specifically) or general (thus not requiring that it be pled specifically).
We hold that the defense is general, and that a defendant need not specifically raise the Act’s tolerances provision in order to avoid liability for disclosure errors that fall within its range.
attorney fees - foreign judgment - English rule
Olympus Corp v. Canady - Superior Court - October 30, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15025_08.pdf
Pennsylvania courts must give full faith and credit under the Uniform Foreign Money Judgment Recognition Act, 42 Pa. C.S. 22001 et seq. to a judgment of the UK High Court of Justice, which included an award of fees against the appellant (plaintiff in the UK court), under the long-standing "English rule," which provides for attorney fees to the prevailing party.
Such an award is remedial and not a penalty, does not violate any public policy of Pennsylvania, and was implicitly acquiesced in by the appellant, who sought recourse in the English courts.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15025_08.pdf
Pennsylvania courts must give full faith and credit under the Uniform Foreign Money Judgment Recognition Act, 42 Pa. C.S. 22001 et seq. to a judgment of the UK High Court of Justice, which included an award of fees against the appellant (plaintiff in the UK court), under the long-standing "English rule," which provides for attorney fees to the prevailing party.
Such an award is remedial and not a penalty, does not violate any public policy of Pennsylvania, and was implicitly acquiesced in by the appellant, who sought recourse in the English courts.
Thursday, October 30, 2008
social security - $ increases - Title II and SSI, etc.
SUMMARY: We have determined—
(1) A 5.8 percent cost-of-living increase in Social Security benefits under title II of the Social Security Act (the Act), effective for December 2008;
(2) An increase in the Federal Supplemental Security Income (SSI) monthly benefit amounts under title XVI of the Act for 2009 to $674 for an eligible individual, $1,011 for an eligible individual with an eligible spouse, and $338 for an essential person;
(3) The student earned income exclusion to be $1,640 per month in 2009 but not more than $6,600 in all of 2009;
(4) The dollar fee limit for services performed as a representative payee to be $37 per month ($72 per month in the case of a beneficiary who is disabled and has an alcoholism or drug addiction condition that leaves him or her incapable of managing benefits) in 2009;
(5) The dollar limit on the administrative-cost assessment charged to attorneys representing claimants to be $83 in 2009;
(6) The national average wage index for 2007 to be $40,405.48;
(7) The Old-Age, Survivors, and Disability Insurance (OASDI) contribution and benefit base to be $106,800 for remuneration paid in 2009 and self-employment income earned in taxable years beginning in 2009;
(8) The monthly exempt amounts under the Social Security retirement earnings test for taxable years ending in calendar year 2009 to be $1,180 and $3,140;
(9) The dollar amounts (‘‘bend points’’) used in the primary insurance amount benefit formula for workers who become eligible for benefits, or who die before becoming eligible, in 2009 to be $744 and $4,483;
(10) The bend points used in the formula for computing maximum family benefits for workers who become eligible for benefits, or who die before becoming eligible, in 2009 to be $950, $1,372, and $1,789;
(11) The amount of taxable earnings a person must have to be credited with a quarter of coverage in 2009 to be $1,090;
(12) The ‘‘old-law’’ contribution and benefit base to be $79,200 for 2009;
(13) The monthly amount deemed to constitute substantial gainful activity for statutorily blind individuals in 2009 to be $1,640, and the corresponding amount for non-blind disabled persons to be $980;
(14) The earnings threshold establishing a month as a part of a trial work period to be $700 for 2009; and
(15) Coverage thresholds for 2009 to be $1,700 for domestic workers and $1,500 for election workers.
(1) A 5.8 percent cost-of-living increase in Social Security benefits under title II of the Social Security Act (the Act), effective for December 2008;
(2) An increase in the Federal Supplemental Security Income (SSI) monthly benefit amounts under title XVI of the Act for 2009 to $674 for an eligible individual, $1,011 for an eligible individual with an eligible spouse, and $338 for an essential person;
(3) The student earned income exclusion to be $1,640 per month in 2009 but not more than $6,600 in all of 2009;
(4) The dollar fee limit for services performed as a representative payee to be $37 per month ($72 per month in the case of a beneficiary who is disabled and has an alcoholism or drug addiction condition that leaves him or her incapable of managing benefits) in 2009;
(5) The dollar limit on the administrative-cost assessment charged to attorneys representing claimants to be $83 in 2009;
(6) The national average wage index for 2007 to be $40,405.48;
(7) The Old-Age, Survivors, and Disability Insurance (OASDI) contribution and benefit base to be $106,800 for remuneration paid in 2009 and self-employment income earned in taxable years beginning in 2009;
(8) The monthly exempt amounts under the Social Security retirement earnings test for taxable years ending in calendar year 2009 to be $1,180 and $3,140;
(9) The dollar amounts (‘‘bend points’’) used in the primary insurance amount benefit formula for workers who become eligible for benefits, or who die before becoming eligible, in 2009 to be $744 and $4,483;
(10) The bend points used in the formula for computing maximum family benefits for workers who become eligible for benefits, or who die before becoming eligible, in 2009 to be $950, $1,372, and $1,789;
(11) The amount of taxable earnings a person must have to be credited with a quarter of coverage in 2009 to be $1,090;
(12) The ‘‘old-law’’ contribution and benefit base to be $79,200 for 2009;
(13) The monthly amount deemed to constitute substantial gainful activity for statutorily blind individuals in 2009 to be $1,640, and the corresponding amount for non-blind disabled persons to be $980;
(14) The earnings threshold establishing a month as a part of a trial work period to be $700 for 2009; and
(15) Coverage thresholds for 2009 to be $1,700 for domestic workers and $1,500 for election workers.
Wednesday, October 29, 2008
disability - "closely approaching retirement age"
http://edocket.access.gpo.gov/2008/pdf/E8-25532.pdf
SUMMARY: We are modifying the rules we use to determine disability under titles II and XVI of the Social Security Act (‘‘Act’’) to revise the definition of persons ‘‘closely approaching retirement age’’ from ‘‘60–64’’ to ‘‘60 or older.’’
These changes acknowledge that we make disability determinations for persons over age 64. We are also making minor technical changes that will not have any effect on how we determine your eligibility for benefits.
DATES: These rules are effective October 29, 2008.
SUMMARY: We are modifying the rules we use to determine disability under titles II and XVI of the Social Security Act (‘‘Act’’) to revise the definition of persons ‘‘closely approaching retirement age’’ from ‘‘60–64’’ to ‘‘60 or older.’’
These changes acknowledge that we make disability determinations for persons over age 64. We are also making minor technical changes that will not have any effect on how we determine your eligibility for benefits.
DATES: These rules are effective October 29, 2008.
Monday, October 27, 2008
child abuse - expungement - founded report - collateral estoppel
C.J. v. DPW - Cmwlth. Court - October 24, 2008
http://www.courts.state.pa.us/OpPosting/Cwealth/out/591CD08_10-24-08.pdf
An adjudication of dependency and finding of abuse under the Juvenile Act bars a request for expunction from a founded report of child abuse under the Child Protective Services Law, under the doctrine of collateral estoppel.
Our recent decision in K.R. v. DPW, 950 A.2d 1069 (Pa. Cmwlth. 2008), holding the Department may rely on findings made in a dependency proceeding to deny a request for expunction of a founded child abuse report, compels the same result here.
An administrative hearing on the expunction request is not permitted because the petitioner was given a full and fair hearing to defend against the allegations in the dependency proceedings. He cannot collaterally attack the trial court’s dependency and abuse findings. The Court’s determination in K.R. allows for application of res judicata in expunction proceedings where, as here, the findings of fact in dependency proceedings establish child abuse at the hands of a named perpetrator.
Collateral estoppel bars a subsequent lawsuit where (1) an issue decided in a prior action is identical to one presented in a later action; (2) the prior action resulted in a final judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to the prior action, or is in privity with a party to the prior action; and (4), the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action.
The dispositive legal and factual issues were identical in both proceedings here, and the remaining criteria of collateral estoppel are similarly met.
http://www.courts.state.pa.us/OpPosting/Cwealth/out/591CD08_10-24-08.pdf
An adjudication of dependency and finding of abuse under the Juvenile Act bars a request for expunction from a founded report of child abuse under the Child Protective Services Law, under the doctrine of collateral estoppel.
Our recent decision in K.R. v. DPW, 950 A.2d 1069 (Pa. Cmwlth. 2008), holding the Department may rely on findings made in a dependency proceeding to deny a request for expunction of a founded child abuse report, compels the same result here.
An administrative hearing on the expunction request is not permitted because the petitioner was given a full and fair hearing to defend against the allegations in the dependency proceedings. He cannot collaterally attack the trial court’s dependency and abuse findings. The Court’s determination in K.R. allows for application of res judicata in expunction proceedings where, as here, the findings of fact in dependency proceedings establish child abuse at the hands of a named perpetrator.
Collateral estoppel bars a subsequent lawsuit where (1) an issue decided in a prior action is identical to one presented in a later action; (2) the prior action resulted in a final judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to the prior action, or is in privity with a party to the prior action; and (4), the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action.
The dispositive legal and factual issues were identical in both proceedings here, and the remaining criteria of collateral estoppel are similarly met.
PFA - past abuse - present fear of bodily injury
Buchalter v. Buchatler - Superior Court - October 27, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a23044_08.pdf
Past abuse that was subject of prior consent order held relevant to plaintiff's allegation of present fear of bodily injury, even
In essence, the trial court reasons that if Patricia is not believed as to the allegations in the present petition, then there is no need to hear testimony about prior abuse. We disagree. “In the context of a PFA case, the court’s objective is to determine whether the victim is in reasonable fear of imminent serious bodily injury….”
The facts surrounding the prior PFA consent order are relevant to an understanding as to the reasonableness of plaintiff's fear relative to the present petition. Moreover, merely determining that a party is not credible is not a basis in itself to exclude relevant testimony.
The court also cited Miller v. Walker, 665 A.2d 1252 at 1259, for the proposition that it was proper in that case to consider abuse which had occurred 6 years before.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a23044_08.pdf
Past abuse that was subject of prior consent order held relevant to plaintiff's allegation of present fear of bodily injury, even
In essence, the trial court reasons that if Patricia is not believed as to the allegations in the present petition, then there is no need to hear testimony about prior abuse. We disagree. “In the context of a PFA case, the court’s objective is to determine whether the victim is in reasonable fear of imminent serious bodily injury….”
The facts surrounding the prior PFA consent order are relevant to an understanding as to the reasonableness of plaintiff's fear relative to the present petition. Moreover, merely determining that a party is not credible is not a basis in itself to exclude relevant testimony.
The court also cited Miller v. Walker, 665 A.2d 1252 at 1259, for the proposition that it was proper in that case to consider abuse which had occurred 6 years before.
disability - SSA general objections and remand request rejected
Morales v. Astrue - ED Pa. - October 23, 2008
http://www.paed.uscourts.gov/documents/opinions/08D1252P.pdf
SSA submission of "merely of generalized arguments, disagreeing with the Magistrate Judge’s result...do not impugn the validity of the Magistrate Judge’s Recommendation."
SSA request for remand for further evidentiary development also denied where the facts were fully developed before the ALJ and the Commissioner does not specify what additional evidence might be available.
http://www.paed.uscourts.gov/documents/opinions/08D1252P.pdf
SSA submission of "merely of generalized arguments, disagreeing with the Magistrate Judge’s result...do not impugn the validity of the Magistrate Judge’s Recommendation."
SSA request for remand for further evidentiary development also denied where the facts were fully developed before the ALJ and the Commissioner does not specify what additional evidence might be available.
Thursday, October 23, 2008
UC - overpayment - fault - misstatement about ability to work
Presbery v. UCBR - Cmwlth. Court - October 22, 2008 - unreported mem. opinion
http://www.courts.state.pa.us/OpPosting/Cwealth/out/2355CD07_10-22-08.pdf
Claimant was at fault for an overpayment that occurred when she misrepresented her ability to work when applying for UC after being in a car accident. Her own medical evidence showed that she had not been released for work and was not able/available during a period of several months after her application for benefits.
http://www.courts.state.pa.us/OpPosting/Cwealth/out/2355CD07_10-22-08.pdf
Claimant was at fault for an overpayment that occurred when she misrepresented her ability to work when applying for UC after being in a car accident. Her own medical evidence showed that she had not been released for work and was not able/available during a period of several months after her application for benefits.
UC - vol. quit - health/safety concerns
KK Fit, Inc. v. UCBR - Cmwlth. Court- October 22, 2008 - unreported memorandum opinion
http://www.courts.state.pa.us/OpPosting/Cwealth/out/349CD08_10-22-08.pdf
The court upheld the UCBR decision that the claimant had good cause to quit her job as the director of a children's gym, whose clients included infants.
The gym had two ongoing problems about which claimant complained for 5 months, to no avail. There were wiring problems and torn upholstery; some infants were eating pieces of the stuffing.
A third problem involved spider in the gym. One child had a bad reaction to a spider bite and had to be taken to the ER. The employer promised to take care of this problem, but claimant discovered that the exterminator visit had been cancelled and quit. The spider problem was not dealt with until 10 days later.
The Referee found that Claimant “acted as a reasonable person in inferring that [Employer] probably did not intend to take care of the problem immediately, as had been the case with the upholstery and the wiring.” Accordingly, the Referee affirmed the Service Center’s determination. Employer appealed the Referee’s decision to the Board. On appeal, the Board adopted and incorporated the Referee’s findings and conclusions, resolved the conflicts in testimony in favor of Claimant, and concluded that Employer “did not make timely and reasonable efforts to correct the serious safety issues present in the children’s gym.” The court held that these findings were "amply supported" by substantial evidence and the relevant law.
In order to show a necessitous and compelling cause to quit, the claimant must show that: “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.” An employee has a necessitous and compelling reason for terminating employment when the job jeopardizes her health or safety, or when the work results in a violation of the law.
Claimant acted reasonably in terminating her employment when she did. Claimant brought to Employer’s attention two serious safety issues regarding the electrical and upholstery defects which went unaddressed on a permanent basis for nearly five months that Claimant continued with her employment, when another safety issue arose, i.e., the problem with the spiders, at which time Claimant approached Employer about her decision to resign.
Claimant opted to trust Employer that the spider issue would be taken care of in a timely manner and, when she found out that Employer had cancelled the exterminator, she quit her employment. Employer did not address the safety issues. When Employer did not address the spider issue when it said it would, it was not unreasonable for Claimant to believe said safety condition would continue to go unaddressed, because the "Employer did not address the safety issues in a timely manner."
Claimant acted with ordinary common sense and made a reasonable effort to preserve her employment by taking proactive measures to address the safety concerns, while timely notifying the appropriate people of the various safety concerns. A reasonable person would act in the same manner both out of concern for her own safety from the faulty electrical wiring, as well as the lingering safety hazards to the children that were under her care. Based on the totality of the circumstances, and the gravity of the complaints that were not addressed, we cannot conclude that the Board erred as a matter of law in granting Claimant benefits.
http://www.courts.state.pa.us/OpPosting/Cwealth/out/349CD08_10-22-08.pdf
The court upheld the UCBR decision that the claimant had good cause to quit her job as the director of a children's gym, whose clients included infants.
The gym had two ongoing problems about which claimant complained for 5 months, to no avail. There were wiring problems and torn upholstery; some infants were eating pieces of the stuffing.
A third problem involved spider in the gym. One child had a bad reaction to a spider bite and had to be taken to the ER. The employer promised to take care of this problem, but claimant discovered that the exterminator visit had been cancelled and quit. The spider problem was not dealt with until 10 days later.
The Referee found that Claimant “acted as a reasonable person in inferring that [Employer] probably did not intend to take care of the problem immediately, as had been the case with the upholstery and the wiring.” Accordingly, the Referee affirmed the Service Center’s determination. Employer appealed the Referee’s decision to the Board. On appeal, the Board adopted and incorporated the Referee’s findings and conclusions, resolved the conflicts in testimony in favor of Claimant, and concluded that Employer “did not make timely and reasonable efforts to correct the serious safety issues present in the children’s gym.” The court held that these findings were "amply supported" by substantial evidence and the relevant law.
In order to show a necessitous and compelling cause to quit, the claimant must show that: “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.” An employee has a necessitous and compelling reason for terminating employment when the job jeopardizes her health or safety, or when the work results in a violation of the law.
Claimant acted reasonably in terminating her employment when she did. Claimant brought to Employer’s attention two serious safety issues regarding the electrical and upholstery defects which went unaddressed on a permanent basis for nearly five months that Claimant continued with her employment, when another safety issue arose, i.e., the problem with the spiders, at which time Claimant approached Employer about her decision to resign.
Claimant opted to trust Employer that the spider issue would be taken care of in a timely manner and, when she found out that Employer had cancelled the exterminator, she quit her employment. Employer did not address the safety issues. When Employer did not address the spider issue when it said it would, it was not unreasonable for Claimant to believe said safety condition would continue to go unaddressed, because the "Employer did not address the safety issues in a timely manner."
Claimant acted with ordinary common sense and made a reasonable effort to preserve her employment by taking proactive measures to address the safety concerns, while timely notifying the appropriate people of the various safety concerns. A reasonable person would act in the same manner both out of concern for her own safety from the faulty electrical wiring, as well as the lingering safety hazards to the children that were under her care. Based on the totality of the circumstances, and the gravity of the complaints that were not addressed, we cannot conclude that the Board erred as a matter of law in granting Claimant benefits.
real property - tax sale - notice to deceased's estate
In re Upset Price Tax Sale - Cmwlth. Court - October 22, 2008 - unreported mem. opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1102CD07_10-22-08.pdf
Trial court abused its discretion is setting aside tax sale, because of inadequate notice, where notice of the sale was properly sent under the Real Estate Tax Sale Law, RESTL, 721 PS 5860.602(e)(1), to the decedent owner's personal representative (PR), who had extensive contact with the Tax Claim Bureau.
Here, the PR specifically informed the TCB that the owners, her cousins, were deceased and that she was the person responsible to pay the taxes. She informed the TCB where she lived and that she was the designated agent of the family with respect to the Property for its tax liabilities. She was also appointed as the Administratrix of the estate, of her deceased cousin, who remained a record owner of the Property.
The TCB and the PR had previously corresponded regarding the Property and the PR actually prevented a previous upset tax sale when she entered into an agreement with the TCB to pay delinquent taxes on the Property. The parties stipulated that the Board of Assessment’s records since at lease 1999 listed a registered address for the owners as “c/o the PR” at her place of residence, the same address where the tax sale notices were mailed and received.
It would not have constituted ordinary sound business practices for the TCB to send notices to a person who was deceased to an address where it knew that the PR, the designated agent and person responsible for paying the taxes, did not reside.
Because the Section 602(e)(1) “first” notice was sent to and received by the PR, no additional notice or efforts to ascertain the identity and whereabouts of the owner of record were required by the TCB....TCB proved that it gave the requisite notice and there is evidence that the addressee received it. Accordingly, the order of the trial court which invalidated the upset tax sale of the Property is reversed.
-
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1102CD07_10-22-08.pdf
Trial court abused its discretion is setting aside tax sale, because of inadequate notice, where notice of the sale was properly sent under the Real Estate Tax Sale Law, RESTL, 721 PS 5860.602(e)(1), to the decedent owner's personal representative (PR), who had extensive contact with the Tax Claim Bureau.
Here, the PR specifically informed the TCB that the owners, her cousins, were deceased and that she was the person responsible to pay the taxes. She informed the TCB where she lived and that she was the designated agent of the family with respect to the Property for its tax liabilities. She was also appointed as the Administratrix of the estate, of her deceased cousin, who remained a record owner of the Property.
The TCB and the PR had previously corresponded regarding the Property and the PR actually prevented a previous upset tax sale when she entered into an agreement with the TCB to pay delinquent taxes on the Property. The parties stipulated that the Board of Assessment’s records since at lease 1999 listed a registered address for the owners as “c/o the PR” at her place of residence, the same address where the tax sale notices were mailed and received.
It would not have constituted ordinary sound business practices for the TCB to send notices to a person who was deceased to an address where it knew that the PR, the designated agent and person responsible for paying the taxes, did not reside.
Because the Section 602(e)(1) “first” notice was sent to and received by the PR, no additional notice or efforts to ascertain the identity and whereabouts of the owner of record were required by the TCB....TCB proved that it gave the requisite notice and there is evidence that the addressee received it. Accordingly, the order of the trial court which invalidated the upset tax sale of the Property is reversed.
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public employement - termination - due process
Palmer v. Bartosh - Cmwlth. Court - October 23, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/137CD08_10-23-08.pdf
Plaintiff, a school teacher, stated claim for relief under 42 USC 1983 against defendant school administrators, in their individual capacities, for dismissing him from his public employment
"Plaintiff allged alleged that the Defendants, acting under the color of state law: engaged in a secret investigation; refused to allow a witness to observe their interviews with students; coerced and/or coached students into making accusations against Mr. Palmer, which the students thereafter refused to repeat under oath; failed to advise Mr. Palmer of the specific accusations against him or give him the opportunity to rebut them; and thereby obtained Mr. Palmer’s discharge from his employment."
"We conclude that these allegations of specific conduct taken by the Defendants, which must be taken as true at this stage of this proceeding, constitute sufficient facts to state a claim for deprivation of a property right to employment and reputation in violation of the Fourteenth Amendment and article 1, section 1 of the Pennsylvania Constitution, and, therefore, the trial court erred in sustaining the POs to Count VII against the Defendants in their individual capacities."
The Fourteenth Amendment requires due process where the deprivation of an individual’s property right, such as the right to continued public employment, is implicated. Andresky v. West Allegheny School District, 437 A.2d 1075 (Pa. Cmwlth. 1981).
Similarly, article I, section 1 of the Pennsylvania Constitution provides that an individual’s right to property and reputation may not be deprived without due process. R. v. Commonwealth, 535 Pa. 440, 636 A.2d 142 (1994); Pennsylvania Bar Association v. DPW, 607 A.2d 850 (Pa. Cmwlth. 1992).
Due process of law requires that an individual is entitled to adequate notice of the charges against him and an opportunity to be heard. Dunn v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 189 (Pa. Cmwlth. 2003). Adequate notice, for procedural due process purposes, requires at a minimum that notice contain a sufficient listing and explanation of the charges against the individual. Id.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/137CD08_10-23-08.pdf
Plaintiff, a school teacher, stated claim for relief under 42 USC 1983 against defendant school administrators, in their individual capacities, for dismissing him from his public employment
"Plaintiff allged alleged that the Defendants, acting under the color of state law: engaged in a secret investigation; refused to allow a witness to observe their interviews with students; coerced and/or coached students into making accusations against Mr. Palmer, which the students thereafter refused to repeat under oath; failed to advise Mr. Palmer of the specific accusations against him or give him the opportunity to rebut them; and thereby obtained Mr. Palmer’s discharge from his employment."
"We conclude that these allegations of specific conduct taken by the Defendants, which must be taken as true at this stage of this proceeding, constitute sufficient facts to state a claim for deprivation of a property right to employment and reputation in violation of the Fourteenth Amendment and article 1, section 1 of the Pennsylvania Constitution, and, therefore, the trial court erred in sustaining the POs to Count VII against the Defendants in their individual capacities."
The Fourteenth Amendment requires due process where the deprivation of an individual’s property right, such as the right to continued public employment, is implicated. Andresky v. West Allegheny School District, 437 A.2d 1075 (Pa. Cmwlth. 1981).
Similarly, article I, section 1 of the Pennsylvania Constitution provides that an individual’s right to property and reputation may not be deprived without due process. R. v. Commonwealth, 535 Pa. 440, 636 A.2d 142 (1994); Pennsylvania Bar Association v. DPW, 607 A.2d 850 (Pa. Cmwlth. 1992).
Due process of law requires that an individual is entitled to adequate notice of the charges against him and an opportunity to be heard. Dunn v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 189 (Pa. Cmwlth. 2003). Adequate notice, for procedural due process purposes, requires at a minimum that notice contain a sufficient listing and explanation of the charges against the individual. Id.
Wednesday, October 22, 2008
civil procedure - POs - failure to respond
Joloza v. PennDOT - Cmwlth. Court - October 23, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/485CD08_10-22-08.pdf
It was error fro the trial court to sustain the defendant's preliminary objections (demurrer) solely on the basis of plaintiff's failure to respond to the POs, without even considering the allegations in the plaintiff's complaint.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/485CD08_10-22-08.pdf
It was error fro the trial court to sustain the defendant's preliminary objections (demurrer) solely on the basis of plaintiff's failure to respond to the POs, without even considering the allegations in the plaintiff's complaint.
UC - "unemployed"
Scott v. UCBR - Cmwlth. Court - October 21, 2008 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/305CD08_10-21-08.pdf
School employee was not "unemployed" under 43 PS sec. 753(u) and 801 where she continued to receive wages and health benefits under a collective barg. agreement during a period in which she was not working, over the summer.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/305CD08_10-21-08.pdf
School employee was not "unemployed" under 43 PS sec. 753(u) and 801 where she continued to receive wages and health benefits under a collective barg. agreement during a period in which she was not working, over the summer.
custody - public schooling v. home schooling - no presumption
Staub v. Staub - Superior Court - October 21, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A13018_08.pdf
The court rejected father's request that it "adopt a clear but narrow rule that requires children to attend public schools when parents who share legal custody cannot agree on home schooling versus public schooling. We decline to adopt such a rule or presumption. To the contrary, we hold that the well-established best interests standard, applied on a case by case basis, governs a court’s decision regarding public schooling versus home schooling."
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A13018_08.pdf
The court rejected father's request that it "adopt a clear but narrow rule that requires children to attend public schools when parents who share legal custody cannot agree on home schooling versus public schooling. We decline to adopt such a rule or presumption. To the contrary, we hold that the well-established best interests standard, applied on a case by case basis, governs a court’s decision regarding public schooling versus home schooling."
Monday, October 20, 2008
UC - appellate brief - no case citations; willful misconduct
Miracle v. UCBR - Cmwlth. Court - October 20, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/250CD08_10-20-08.pdf
appellate brief - Rule 2101 - no case citations -The court refused to quash claimant's brief, even though it did not contain any case citations. The court found that the "argument articulated are sufficient to allow the court to engage in appellate review.
willful misconduct - Claimant's failure to comply with the employer's reasonable work request (entering an incident in a master log) was reasonable, and that claimant's failure to do so, without good cause, constituted willful misconduct.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/250CD08_10-20-08.pdf
appellate brief - Rule 2101 - no case citations -The court refused to quash claimant's brief, even though it did not contain any case citations. The court found that the "argument articulated are sufficient to allow the court to engage in appellate review.
willful misconduct - Claimant's failure to comply with the employer's reasonable work request (entering an incident in a master log) was reasonable, and that claimant's failure to do so, without good cause, constituted willful misconduct.
Friday, October 17, 2008
disability - mental impairment - severity
Velazquez v. Astrue - ED Pa. - October 2008
http://www.paed.uscourts.gov/documents/opinions/08D1220P.pdf
Finding of non-severity of mental impairment not supported by substantial evidence. Case remanded.
" In order to meet the step two severity test, an impairment need only cause a slight abnormality that has no more than a minimal effect on the ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921; S.S.R. 96-3p, 85-28. The Third Circuit Court of Appeals has held that the step two severity inquiry is a “de minimus screening device to dispose of groundless claims.” McCrea v. Comm. of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004); Newell v. Comm. of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003). “Any doubt as to whether this showing has been made is to be resolved in favor of the applicant.” Id.
The medical records from 2000 and 2001 show serious symptoms and limitations arising from Velazquez’s mental impairment including GAF scores between 45 and 58....Although the ALJ listed most of the evidence, she did not mention the GAF scores or sufficiently explain why the state medical consultant’s conclusion of non-severity was most consistent with the evidence, especially in light of the many serious findings from Velazquez’s treating and examining mental health professionals.
While the evidence may not establish disabling depression, the evidence also does not appear to establish that Velazquez’s depression was groundless. As a result, on remand, the ALJ shall re-assess her determination regarding Velazquez’s depression and support her decision with substantial evidence. Likewise, the ALJ shall conform her RFC assessment and any hypothetical questions to reflect her properly supported conclusions.
http://www.paed.uscourts.gov/documents/opinions/08D1220P.pdf
Finding of non-severity of mental impairment not supported by substantial evidence. Case remanded.
" In order to meet the step two severity test, an impairment need only cause a slight abnormality that has no more than a minimal effect on the ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921; S.S.R. 96-3p, 85-28. The Third Circuit Court of Appeals has held that the step two severity inquiry is a “de minimus screening device to dispose of groundless claims.” McCrea v. Comm. of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004); Newell v. Comm. of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003). “Any doubt as to whether this showing has been made is to be resolved in favor of the applicant.” Id.
The medical records from 2000 and 2001 show serious symptoms and limitations arising from Velazquez’s mental impairment including GAF scores between 45 and 58....Although the ALJ listed most of the evidence, she did not mention the GAF scores or sufficiently explain why the state medical consultant’s conclusion of non-severity was most consistent with the evidence, especially in light of the many serious findings from Velazquez’s treating and examining mental health professionals.
While the evidence may not establish disabling depression, the evidence also does not appear to establish that Velazquez’s depression was groundless. As a result, on remand, the ALJ shall re-assess her determination regarding Velazquez’s depression and support her decision with substantial evidence. Likewise, the ALJ shall conform her RFC assessment and any hypothetical questions to reflect her properly supported conclusions.
evidence - clear and convincing evidence
Kistler v. State Ethics Commission - Cmwlth. Court - October 17, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1352CD07_10-17-08.pdf
" Clear and convincing proof is evidence that is so clear, direct, weighty and convincing that it enables the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue. In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88 (1998)."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1352CD07_10-17-08.pdf
" Clear and convincing proof is evidence that is so clear, direct, weighty and convincing that it enables the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue. In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88 (1998)."
Thursday, October 16, 2008
UC- willful misconduct
Keystone Central School District v. UCBR - Cmwlth./ Court - October 15, 2008 - unreported en banc memorandum opinion (5-2)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1864CD07_10-15-08.pdf
Learning support teacher was not guilty of willful misconduct for her conduct during testing of learning disabled students. The UCBR's findings that her actions were consistent with state exam testing accommodations, each child's IEP, and instructions from her superiors were supported by substantial evidence.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1864CD07_10-15-08.pdf
Learning support teacher was not guilty of willful misconduct for her conduct during testing of learning disabled students. The UCBR's findings that her actions were consistent with state exam testing accommodations, each child's IEP, and instructions from her superiors were supported by substantial evidence.
paternity by estoppel
Ellison v. Lopez - Superior Court - October 15, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a18031_08.pdf
Defendant estopped from denying paternity of child born out of wedlock where
- there was no fraud or misrepresentation by mother
- defendant was always aware that there was a question about paternity
- defendant held child out as his own and assumed parental role for at least two years, despite paternity questions
- defendant did not ask for paternity testing for two years, despite child's lack of resemblance to him
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a18031_08.pdf
Defendant estopped from denying paternity of child born out of wedlock where
- there was no fraud or misrepresentation by mother
- defendant was always aware that there was a question about paternity
- defendant held child out as his own and assumed parental role for at least two years, despite paternity questions
- defendant did not ask for paternity testing for two years, despite child's lack of resemblance to him
Wednesday, October 15, 2008
UC - appeal - notice of issues - timeliness of appeal
Plut v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2283CD07_10-14-08.pdf
Issue of timeliness of claimant's appeal was properly considered, even though not listed on the notice of hearing.
The referee gave claimant the option of continuing the hearing because the issue was not listed, but not the "chance to refused to decide the timeliness issue" under 34 Pa. Code101.87. http://www.pacode.com/secure/data/034/chapter101/s101.87.html.
Nonetheless, following Dilenno v. UCBR, 429 A.2d 1288 (Pa. Cmwlth 1288, 1289 (Pa. Cmwlth. 1981), the court said the timeliness of an appeal is a jurisdictional prerequisite that is always at issue, cannot be waived by the referee by the failure to list it on the notice of hearing, and can be raised by the court on its own motion at any time.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2283CD07_10-14-08.pdf
Issue of timeliness of claimant's appeal was properly considered, even though not listed on the notice of hearing.
The referee gave claimant the option of continuing the hearing because the issue was not listed, but not the "chance to refused to decide the timeliness issue" under 34 Pa. Code101.87. http://www.pacode.com/secure/data/034/chapter101/s101.87.html.
Nonetheless, following Dilenno v. UCBR, 429 A.2d 1288 (Pa. Cmwlth 1288, 1289 (Pa. Cmwlth. 1981), the court said the timeliness of an appeal is a jurisdictional prerequisite that is always at issue, cannot be waived by the referee by the failure to list it on the notice of hearing, and can be raised by the court on its own motion at any time.
UC- vol. quit - good cause - change in work schedule
Philadelphia Park Casino v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/726CD08_10-14-08.pdf
Claimant had good cause to quit his job where he has negotiated a work shedule with the employer, for religious and health reasons, and employer unilaterally changed the schedule.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/726CD08_10-14-08.pdf
Claimant had good cause to quit his job where he has negotiated a work shedule with the employer, for religious and health reasons, and employer unilaterally changed the schedule.
UC - hearing - continuance - good cause - new job
Ammon v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/795CD08_10-14-08.pdf
Refusal to grant claimant's last minute request for a continuance was an abuse of discretion, where it resulted from an unexpected, last-minute opportunity to begin employment on the day of the hearing.
Normally, last-minute requests are disfavored. However, in this case the request was supported by "proper cause" under 34 Pa. Code § 101.23 http://www.pacode.com/secure/data/034/chapter101/s101.23.html.
The refusal to grant it would penalize a person who actually found work and would be "contrary to the goal of stabilizing employment." Shegan v. UCBR, 564 A.2d 1022, 1025 n. 5 (Pa. Cmwlth. 1989).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/795CD08_10-14-08.pdf
Refusal to grant claimant's last minute request for a continuance was an abuse of discretion, where it resulted from an unexpected, last-minute opportunity to begin employment on the day of the hearing.
Normally, last-minute requests are disfavored. However, in this case the request was supported by "proper cause" under 34 Pa. Code § 101.23 http://www.pacode.com/secure/data/034/chapter101/s101.23.html.
The refusal to grant it would penalize a person who actually found work and would be "contrary to the goal of stabilizing employment." Shegan v. UCBR, 564 A.2d 1022, 1025 n. 5 (Pa. Cmwlth. 1989).
pre-emption - state/local
Hoffman Mining Company v. Zoning Hearing Board - Cmwlth. Court - October 15, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2122CD07_10-15-08.pdf
Whether a state statute preempts local regulation is determined by the intent of the General Assembly. The General Assembly can specifically express its intent by either providing that municipalities may enact ordinances not inconsistent with state law, limiting what subjects of regulation that may be enacted, or by expressly forbidding municipal regulation altogether.
However, the General Assembly is often silent and is not presumed to have preempted the field by legislating in it; therefore, it must clearly be shown that it was the General Assembly’s intent to preempt the field by legislation. Retail Master Bakers Association v. Allegheny County, 400 Pa. 1, 161 A.2d 36 (1960); Baird v. Township of New Britain, 633 A.2d 225 (Pa. Cmwlth. 1993).
The presumption against preemption is based on the understanding that what is being preempted is the ability of the municipality, through its elected local officials, to address the needs of its citizens.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2122CD07_10-15-08.pdf
Whether a state statute preempts local regulation is determined by the intent of the General Assembly. The General Assembly can specifically express its intent by either providing that municipalities may enact ordinances not inconsistent with state law, limiting what subjects of regulation that may be enacted, or by expressly forbidding municipal regulation altogether.
However, the General Assembly is often silent and is not presumed to have preempted the field by legislating in it; therefore, it must clearly be shown that it was the General Assembly’s intent to preempt the field by legislation. Retail Master Bakers Association v. Allegheny County, 400 Pa. 1, 161 A.2d 36 (1960); Baird v. Township of New Britain, 633 A.2d 225 (Pa. Cmwlth. 1993).
The presumption against preemption is based on the understanding that what is being preempted is the ability of the municipality, through its elected local officials, to address the needs of its citizens.
Wednesday, October 08, 2008
UC - willful misconduct - lateness
Turner v. UCBR - Cmwlth. Court - October 8, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/519CD08_10-8-08.pdf
Claimant was guilty of willful misconduct when she stopped on her way to work to get shoes (because her feet hurt), without telling the employer that she was doing so and would be late. Claimant had a history of lateness and had been given a final warning.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/519CD08_10-8-08.pdf
Claimant was guilty of willful misconduct when she stopped on her way to work to get shoes (because her feet hurt), without telling the employer that she was doing so and would be late. Claimant had a history of lateness and had been given a final warning.
child abuse - "imminent risk" - OCYF Bulletin
Montgomery Co. CYS v. DPW - Cmwlth. Court - Octobwer 8, 2008 - unreported memorandum opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/376CD08_10-8-08.pdf
No risk of imminent serious injury by momentary inattention of daycare worker, especially considering the definition of "imminent risk" in proposed regs.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/376CD08_10-8-08.pdf
No risk of imminent serious injury by momentary inattention of daycare worker, especially considering the definition of "imminent risk" in proposed regs.
Monday, October 06, 2008
disability - treating physician opinion; credibility
Wilson v. Astrue - ED Pa. November 28, 2007
http://www.paed.uscourts.gov/documents/opinions/07D1402P.pdf
Benefits granted in this case, with good discussions of standards for evaluating opinion of treating physician and judging claimant credibility.
http://www.paed.uscourts.gov/documents/opinions/07D1402P.pdf
Benefits granted in this case, with good discussions of standards for evaluating opinion of treating physician and judging claimant credibility.
Sunday, October 05, 2008
UC - vol. quit - intolerable conditions - unjust accusations
First Federal Savings Bank v. UCBR - Commonwealth Court - October 2, 2008
http://www.courts.state.pa.us/OpPosting/Cwealth/out/427CD08_10-2-08.pdf
Held that claimant had good cause/necessitour & compelling reason to quit her job, where
- she was a valued management employeee
- a fellow employee “engaged in outbursts, was talking, defiant and argumentative, and was quite disrespectful to the claimant personally.”
- claimant expressed her concerns about this to senior management, who did not do anything about it
- claimant established that “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.”
- She had ‘good cause’ for voluntarily leaving (i.e. that cause which is necessitous and compelling) resulting from circumstances which produced pressure to terminate employment that was both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.”
- "Perhaps most important to the present case, it is well established that “a claimant need not indefinitely subject herself to unjust accusations and abusive conduct.” However, “[r]esentmentof a reprimand, absent unjust accusations, profane language or abusive conduct …mere disappointment with wages … and personality conflicts, absent intolerable working atmosphere … do not amount to necessitous and compelling causes.”
- Claimant demonstrated more than a mere belief of unjust accusations, as the Board concluded that Claimant was, in fact, unjustly reprimanded with abusive language and that Claimant was subjected to intolerable working conditions.
- Claimant made attempts on various occasions to preserve her employment relationship with Employer without success. Claimant took her concerns to senior management officials and was reasonable in doing so
http://www.courts.state.pa.us/OpPosting/Cwealth/out/427CD08_10-2-08.pdf
Held that claimant had good cause/necessitour & compelling reason to quit her job, where
- she was a valued management employeee
- a fellow employee “engaged in outbursts, was talking, defiant and argumentative, and was quite disrespectful to the claimant personally.”
- claimant expressed her concerns about this to senior management, who did not do anything about it
- claimant established that “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.”
- She had ‘good cause’ for voluntarily leaving (i.e. that cause which is necessitous and compelling) resulting from circumstances which produced pressure to terminate employment that was both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.”
- "Perhaps most important to the present case, it is well established that “a claimant need not indefinitely subject herself to unjust accusations and abusive conduct.” However, “[r]esentmentof a reprimand, absent unjust accusations, profane language or abusive conduct …mere disappointment with wages … and personality conflicts, absent intolerable working atmosphere … do not amount to necessitous and compelling causes.”
- Claimant demonstrated more than a mere belief of unjust accusations, as the Board concluded that Claimant was, in fact, unjustly reprimanded with abusive language and that Claimant was subjected to intolerable working conditions.
- Claimant made attempts on various occasions to preserve her employment relationship with Employer without success. Claimant took her concerns to senior management officials and was reasonable in doing so
Friday, September 26, 2008
consumer - UTPCPL - fraud in the inducement - parol evidence
Devine v. America's Whole Lender, et al. - ED Pa. - September 25, 2008
http://www.paed.uscourts.gov/documents/opinions/08D1132P.pdf
Plaintiff's evidence about defendant's preliminary, fraudulent misrepresentations is barred by the Pennsylvania application of the parol evidence rule barring evidence about fraud in the inducement.
From the opinion (read it and weep)
Under Pennsylvania law, evidence of prior or contemporaneous oral or written negotiations or agreements is generally inadmissible to explain or vary the terms of a contract that covers or purports to cover the entire agreement of the parties. Yocca v. The Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004); Bardwell v. Willis Co., Inc., 100 A.2d 102, 104 (Pa. 1953). In Yocca, the Pennsylvania Supreme Court explained the fraud exception to the parol evidence rule as follows:
"Notably, while parol evidence may be introduced based on a party's claim that there was fraud in the execution of the contract, i.e., that a term was fraudulently omitted from the contract, parol evidence may not be admitted based on a claim that there was fraud in the inducement of the contract, i.e., that an opposing party made false representations that induced the complaining party to agree to the contract. Yocca, 854 A.2d at fn. 26; see also HCB Contractors v. Liberty Place Hotel Assocs., 652 A.2d 1278, 1279 (Pa. 1995)."
The plaintiffs claim they signed the loan documents based on defendant's assurances that the payment option they desired would be added to the package after execution of the documents. This is fraud in the inducement. The parol evidence rule bars the introduction of this evidence because plaintiffs seek to vary the terms of the written loan documents, which purported to cover the parties' entire agreement. There is no evidence that a term was fraudulently omitted from the contract. Thus, what happened here does not fall within the fraud exception under Yocca.
Given Pennsylvania's adoption of the parol evidence rule, the plaintiffs cannot be said to have justifiably relied on the defendants' representations regarding the amount of the monthly payments due under the loans because these representations are in direct conflict with the parties' contract. Yocca, 854 A.2d at 502. Thus, plaintiffs' claim under the UTPCPL fails.
Accordingly, the court will grant summary judgment on plaintiffs' claims under the catch-all provision of the UTPCPL which are based on defendants' alleged misrepresentations.6
n. 6 - The plaintiffs' brief in opposition to the defendants' motion for summary judgment for the first time asserts that their claims "are based in part on the ground that a violation of any portion of the UTPCPL, notably here the violations of 73 P.S. section 201-7 and the violation of any other consumer protection laws, such as the TILA, constitute per se violations of section 201-4(2) of the TPCPL." However, paragraph 32 of the plaintiffs' complaint premises their per se violations of the UTPCPL on the defendants' alleged violations of the Pa. Credit Services Act and the Pa. Loan Broker Trade Practices Regulations ("LBTP") only. To the extent the plaintiffs have premised their claims under the UTPCPL on the alleged violations of TILA and § 201-7 of the UTPCPL, such claims come too late.
http://www.paed.uscourts.gov/documents/opinions/08D1132P.pdf
Plaintiff's evidence about defendant's preliminary, fraudulent misrepresentations is barred by the Pennsylvania application of the parol evidence rule barring evidence about fraud in the inducement.
From the opinion (read it and weep)
Under Pennsylvania law, evidence of prior or contemporaneous oral or written negotiations or agreements is generally inadmissible to explain or vary the terms of a contract that covers or purports to cover the entire agreement of the parties. Yocca v. The Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004); Bardwell v. Willis Co., Inc., 100 A.2d 102, 104 (Pa. 1953). In Yocca, the Pennsylvania Supreme Court explained the fraud exception to the parol evidence rule as follows:
"Notably, while parol evidence may be introduced based on a party's claim that there was fraud in the execution of the contract, i.e., that a term was fraudulently omitted from the contract, parol evidence may not be admitted based on a claim that there was fraud in the inducement of the contract, i.e., that an opposing party made false representations that induced the complaining party to agree to the contract. Yocca, 854 A.2d at fn. 26; see also HCB Contractors v. Liberty Place Hotel Assocs., 652 A.2d 1278, 1279 (Pa. 1995)."
The plaintiffs claim they signed the loan documents based on defendant's assurances that the payment option they desired would be added to the package after execution of the documents. This is fraud in the inducement. The parol evidence rule bars the introduction of this evidence because plaintiffs seek to vary the terms of the written loan documents, which purported to cover the parties' entire agreement. There is no evidence that a term was fraudulently omitted from the contract. Thus, what happened here does not fall within the fraud exception under Yocca.
Given Pennsylvania's adoption of the parol evidence rule, the plaintiffs cannot be said to have justifiably relied on the defendants' representations regarding the amount of the monthly payments due under the loans because these representations are in direct conflict with the parties' contract. Yocca, 854 A.2d at 502. Thus, plaintiffs' claim under the UTPCPL fails.
Accordingly, the court will grant summary judgment on plaintiffs' claims under the catch-all provision of the UTPCPL which are based on defendants' alleged misrepresentations.6
n. 6 - The plaintiffs' brief in opposition to the defendants' motion for summary judgment for the first time asserts that their claims "are based in part on the ground that a violation of any portion of the UTPCPL, notably here the violations of 73 P.S. section 201-7 and the violation of any other consumer protection laws, such as the TILA, constitute per se violations of section 201-4(2) of the TPCPL." However, paragraph 32 of the plaintiffs' complaint premises their per se violations of the UTPCPL on the defendants' alleged violations of the Pa. Credit Services Act and the Pa. Loan Broker Trade Practices Regulations ("LBTP") only. To the extent the plaintiffs have premised their claims under the UTPCPL on the alleged violations of TILA and § 201-7 of the UTPCPL, such claims come too late.
child abuse - founded report - right to hearing
G.M. v. DPW - Commonwealth Court - September 26, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/765CD08_9-26-08.pdf
There is no right to a civil expungment hearing on a "founded" report of abuse--i.e., one based on a court decision-- where the defendant has previously pleaded nolo contendere in a separate criminal case, if the same underlying factual circumstances are involved in both matters.
The court contrasted its decision in R.F. v. DPW, 845 A.2d 214 (Pa. Cmwlth. 2004), where the generic criminal charges did not correspond to the allegations of abuse in the civil case.
Where “there is an entry of a guilty plea or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstance involved in the allegation of child abuse, an appeal would ‘in most instances, constitute a collateral attack of the adjudication itself, which is not allowed.’” J.G. v. DPW, 795 A.2d 1089, 1093 (Pa. Cmwlth. 2002).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/765CD08_9-26-08.pdf
There is no right to a civil expungment hearing on a "founded" report of abuse--i.e., one based on a court decision-- where the defendant has previously pleaded nolo contendere in a separate criminal case, if the same underlying factual circumstances are involved in both matters.
The court contrasted its decision in R.F. v. DPW, 845 A.2d 214 (Pa. Cmwlth. 2004), where the generic criminal charges did not correspond to the allegations of abuse in the civil case.
Where “there is an entry of a guilty plea or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstance involved in the allegation of child abuse, an appeal would ‘in most instances, constitute a collateral attack of the adjudication itself, which is not allowed.’” J.G. v. DPW, 795 A.2d 1089, 1093 (Pa. Cmwlth. 2002).
Thursday, September 25, 2008
contracts - insurance - interpretation - reasonable expectation of insured
Betz v. Erie Insurance Exchange - Superior Court - September 22, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a23045_08.pdf
Trial court judgment in favor of the insured affirmed on appeal. The case involved a "sinkhole endorsement" to a homeowner's policy, which the court found ambiguous as a matter of law and "insufficiently clear to put the policyholder on notice of what the endorsement actually covered...."
Although the interpretation of insurance policies, like all contracts, depends on the intention of the parties, courts also consider all the circumstances, including the object to be accomplished. Contract principes have only limited application in insurance cases. Our courts have often observed that “‘normal’ contract principles do not apply to insurance transactions.”
The "proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured.” This rule of "reasonable expectations" is "not limited only to situations in which the insurance contract might be deemed ambiguous. Regardless of ambiguity or lack thereof, our courts have reviewed the totality of the underlying circumstances.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a23045_08.pdf
Trial court judgment in favor of the insured affirmed on appeal. The case involved a "sinkhole endorsement" to a homeowner's policy, which the court found ambiguous as a matter of law and "insufficiently clear to put the policyholder on notice of what the endorsement actually covered...."
Although the interpretation of insurance policies, like all contracts, depends on the intention of the parties, courts also consider all the circumstances, including the object to be accomplished. Contract principes have only limited application in insurance cases. Our courts have often observed that “‘normal’ contract principles do not apply to insurance transactions.”
The "proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured.” This rule of "reasonable expectations" is "not limited only to situations in which the insurance contract might be deemed ambiguous. Regardless of ambiguity or lack thereof, our courts have reviewed the totality of the underlying circumstances.
UC - independent contractor - barber
Glatfelter Barber Shop v. UCBR- September 24, 2008 - Commonwealth Court (2-1)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1736CD07_9-24-08.pdf
The court affirmed the Board decision that the claimant was an employee rather than an independent contractor, and thus was not disqualified under sec. 402(h) of the UC Law, 43 P.S. § 802(h).
The court said that there is a presumption that the claimant was an employee (without citing cases), and that the employer had not overcome that with contrary evidence. The court also held that the claimant was not engaged In an independently established trade, occupation, profession or business, citing Viktor v. DOLI, 586 Pa. 196, 892 A.2d 781 (2006).
Finally, the court held that claimant's refusal to sign a non-compete agreement was not willful misconduct, citing Zimmerman v. UCBR, 836 A.2d 1074, 1080-81 (Pa. Cmwlth. 2003) (the refusal to sign an agreement presented to a claimant more as an ultimatum than a matter to be negotiated does not constitute willful misconduct.)
There was a lengthy dissent, arguing that the Board decision was arbitrary and capricious.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1736CD07_9-24-08.pdf
The court affirmed the Board decision that the claimant was an employee rather than an independent contractor, and thus was not disqualified under sec. 402(h) of the UC Law, 43 P.S. § 802(h).
The court said that there is a presumption that the claimant was an employee (without citing cases), and that the employer had not overcome that with contrary evidence. The court also held that the claimant was not engaged In an independently established trade, occupation, profession or business, citing Viktor v. DOLI, 586 Pa. 196, 892 A.2d 781 (2006).
Finally, the court held that claimant's refusal to sign a non-compete agreement was not willful misconduct, citing Zimmerman v. UCBR, 836 A.2d 1074, 1080-81 (Pa. Cmwlth. 2003) (the refusal to sign an agreement presented to a claimant more as an ultimatum than a matter to be negotiated does not constitute willful misconduct.)
There was a lengthy dissent, arguing that the Board decision was arbitrary and capricious.
Thursday, September 18, 2008
disability - failure to consider evidence - remand
Magid v. Astrue - ED Pa. - September 18, 2008
http://www.paed.uscourts.gov/documents/opinions/08D1109P.pdf
The ALJ failed to mention--and presumably consider--the opinion of an examining state agency psychologist, Dr. Gensemer.
"In coming to the determination that Magid did not have any mental limitations that would prevent him from performing “at least semi-skilled work,” it is unclear whether or not the ALJ completely ignored Dr. Gensemer’s opinion. Thus, the case must be remanded for the ALJ to reconsider the medical evidence in the record regarding Magid’s mental limitations and explain his reasoning for accepting and rejecting the various opinions. See Burnett v. Comm’r of Social Sec. Admin., 220 F.3d 112, 121-22 (3d Cir. 2000).
"The above analysis demonstrates that the ALJ failed to fully consider the record before him, and thus, the court will not make a ruling on Magid’s remaining arguments regarding whether or not the ALJ erred in determining that Magid could perform medium work and return to his past relevant work. "
http://www.paed.uscourts.gov/documents/opinions/08D1109P.pdf
The ALJ failed to mention--and presumably consider--the opinion of an examining state agency psychologist, Dr. Gensemer.
"In coming to the determination that Magid did not have any mental limitations that would prevent him from performing “at least semi-skilled work,” it is unclear whether or not the ALJ completely ignored Dr. Gensemer’s opinion. Thus, the case must be remanded for the ALJ to reconsider the medical evidence in the record regarding Magid’s mental limitations and explain his reasoning for accepting and rejecting the various opinions. See Burnett v. Comm’r of Social Sec. Admin., 220 F.3d 112, 121-22 (3d Cir. 2000).
"The above analysis demonstrates that the ALJ failed to fully consider the record before him, and thus, the court will not make a ruling on Magid’s remaining arguments regarding whether or not the ALJ erred in determining that Magid could perform medium work and return to his past relevant work. "
UC - willful misconduct - conscious disregard
Patterson v. UCBR - Commonwealth Court - September 12, 2008 - unreported memorandum opinion
http://www.courts.state.pa.us/OpPosting/CWealth/out/1741CD07_9-12-08.pdf
Housekeeper not guilty of willful misconduct because employer did not show willful/intentional violation of his job duties, only that his performance fell below employer standards.
The court relied on Rung v. UCBR, 689 A.2d 999 (Pa. Cmwlth. 1997), holding that there must be any intentional disregard of the employer's interests, and BK Foods v. UCBR, 547 A.2d 873 (Pa. Cmwlth. 1988), holding that there is a differenence between "mere incompetence, inexperience or inability" and a "conscious disregard of the employer's interest." McCrea v. UCBR, 487 A.2d 69 (Pa. Cmwlth 1986).
There was no showing here of conscious disregard or unwillingness to to work to the best of his ability. Even under the Board's own findings, the most that was shown was a possible mistake about work assignments.
There was a dissent, stating the evidence showed that claimant knew what was he was supposed to do but didn't do it.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1741CD07_9-12-08.pdf
Housekeeper not guilty of willful misconduct because employer did not show willful/intentional violation of his job duties, only that his performance fell below employer standards.
The court relied on Rung v. UCBR, 689 A.2d 999 (Pa. Cmwlth. 1997), holding that there must be any intentional disregard of the employer's interests, and BK Foods v. UCBR, 547 A.2d 873 (Pa. Cmwlth. 1988), holding that there is a differenence between "mere incompetence, inexperience or inability" and a "conscious disregard of the employer's interest." McCrea v. UCBR, 487 A.2d 69 (Pa. Cmwlth 1986).
There was no showing here of conscious disregard or unwillingness to to work to the best of his ability. Even under the Board's own findings, the most that was shown was a possible mistake about work assignments.
There was a dissent, stating the evidence showed that claimant knew what was he was supposed to do but didn't do it.
Thursday, September 11, 2008
UC- willful misconduct - mental illness - evidence
Seneca Valley School District v. UCBR - Commonwealth Court - September 9, 2008 - UNREPORTED MEMORANDUM OPINION
http://www.courts.state.pa.us/OpPosting/CWealth/out/267CD08_9-9-08.pdf
Teacher established good cause for her conduct. There was substantial evidence--the required expert medical evidence, Dept. of Navy v. UCBR, 632 A.2d 622 (Pa. Cmwlth. 1993), from the employer's own witness--to support its finding that claimant's behavior was excused because it was caused by mental illness.
That evidence showed that claimant's conduct was caused by a brief psychotic episode from which she had recovered, and that she was presently able to work.
The employer's claim that its own witness's testimony about its own psychiatrist's findings was hearsay was rejected. The court held that it came under the "admission against interest" exception, a voluntary acknowledgment by a party of the truth of facts which are inconsistent with the party's claim in an action. Such evidence has a "high evidentiary value" and is accepted on the assumption that a witness would not say anything against his interest unless it were true.
http://www.courts.state.pa.us/OpPosting/CWealth/out/267CD08_9-9-08.pdf
Teacher established good cause for her conduct. There was substantial evidence--the required expert medical evidence, Dept. of Navy v. UCBR, 632 A.2d 622 (Pa. Cmwlth. 1993), from the employer's own witness--to support its finding that claimant's behavior was excused because it was caused by mental illness.
That evidence showed that claimant's conduct was caused by a brief psychotic episode from which she had recovered, and that she was presently able to work.
The employer's claim that its own witness's testimony about its own psychiatrist's findings was hearsay was rejected. The court held that it came under the "admission against interest" exception, a voluntary acknowledgment by a party of the truth of facts which are inconsistent with the party's claim in an action. Such evidence has a "high evidentiary value" and is accepted on the assumption that a witness would not say anything against his interest unless it were true.
UC - voluntary quit - conscious intention
Subway List, Inc. v. UCBR - Commonwealth Court - September 5, 2008 - unreported memorandum opinion
http://www.courts.state.pa.us/OpPosting/CWealth/out/2258CD07_9-5-08.pdf
Held that totality of circumstances, the claimant did not show the required "conscious intention to voluntarily quit her job," even when she failed to complete a questionnaire by the time specified by her employer, June 30th.
She was out on a medical leave and did send the employer a letter, received on July 1st, saying that she would respond more precisely after an upcoming checkup. Her "inability to predict the circumstances regarding her return to work did not demonstrate an intention to quit"
Nor were her actions willful misconduct. "The letters that Claimant sent served the same purpose of advising employer of her intentions....Claimant reasonably attempted to comply with employer's request and...her actions did not constitute willful misconduct."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2258CD07_9-5-08.pdf
Held that totality of circumstances, the claimant did not show the required "conscious intention to voluntarily quit her job," even when she failed to complete a questionnaire by the time specified by her employer, June 30th.
She was out on a medical leave and did send the employer a letter, received on July 1st, saying that she would respond more precisely after an upcoming checkup. Her "inability to predict the circumstances regarding her return to work did not demonstrate an intention to quit"
Nor were her actions willful misconduct. "The letters that Claimant sent served the same purpose of advising employer of her intentions....Claimant reasonably attempted to comply with employer's request and...her actions did not constitute willful misconduct."
Wednesday, September 10, 2008
UC - reconsideration - new evidence - second bite at the apple
Rose v. UCBR - September 9, 2008 - unreported memorandum decision
http://www.courts.state.pa.us/OpPosting/CWealth/out/145CD08_9-9-08.pdf
The regulation at 34 Pa. Code §101.1116 provides that an aggrieved party may request the Board to reconsider its decision. The Board’s “decision to grant or deny a request for reconsideration is a matter of administrative discretion, this Court’s scope of review of that decision is limited to determining whether the agency abused its discretion.”
Section 101.111(b) provides that the Board will grant a request for reconsideration for “good cause.” In determining whether “good cause” exists, the agency must consider whether the party requesting reconsideration has identified new circumstances or whether the agency failed to consider relevant law.
An offer to provide additional evidence does not constitute good cause unless it can be shown that this “new” evidence was not available at the time of the Referee’s hearing.
Save exceptional circumstances, this Court simply does not allow a party “the proverbial second bite at the apple.” Primecare Medical, Inc. v. Unemployment Compensation Board of Review, 760 A.2d 483, 488 (Pa. Cmwlth. 2000)
http://www.courts.state.pa.us/OpPosting/CWealth/out/145CD08_9-9-08.pdf
The regulation at 34 Pa. Code §101.1116 provides that an aggrieved party may request the Board to reconsider its decision. The Board’s “decision to grant or deny a request for reconsideration is a matter of administrative discretion, this Court’s scope of review of that decision is limited to determining whether the agency abused its discretion.”
Section 101.111(b) provides that the Board will grant a request for reconsideration for “good cause.” In determining whether “good cause” exists, the agency must consider whether the party requesting reconsideration has identified new circumstances or whether the agency failed to consider relevant law.
An offer to provide additional evidence does not constitute good cause unless it can be shown that this “new” evidence was not available at the time of the Referee’s hearing.
Save exceptional circumstances, this Court simply does not allow a party “the proverbial second bite at the apple.” Primecare Medical, Inc. v. Unemployment Compensation Board of Review, 760 A.2d 483, 488 (Pa. Cmwlth. 2000)
due process - emergency - post-deprivation hearing
Elsmere Park Club v. Town of Elsmere - 3d Circuit - September 9, 2008
http://www.ca3.uscourts.gov/opinarch/071821p.pdf
Town condemned apartment complex because of mold and sewage problems.
Held: No pre-deprivation hearing was required because of "exception circumstances" and need for prompt government action, e.g. threat to public health of safety.
The post-deprivation process that was offered--and which owner abandoned--was held to be adequate.
http://www.ca3.uscourts.gov/opinarch/071821p.pdf
Town condemned apartment complex because of mold and sewage problems.
Held: No pre-deprivation hearing was required because of "exception circumstances" and need for prompt government action, e.g. threat to public health of safety.
The post-deprivation process that was offered--and which owner abandoned--was held to be adequate.
federal courts - pleading
Umland v. Planco Financial Services - Third Circuit - Septembe 9, 2008
http://www.ca3.uscourts.gov/opinarch/064688p.pdf
In light of the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955 (2007), we have cautioned that the factual allegations in the complaint must not be “so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
In addition, “it is no longer sufficient to allege mere elements of a cause of action; instead ‘a complaint must allege facts suggestive of [the proscribed] conduct.’ ” Id. (alteration in original) (quoting Twombly, 127 S. Ct. at 1969 n.8).
We have interpreted Twombly’s emphasis on “plausibility” to mean that the complaint’s “ ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ ” Id. at 234 (quoting Twombly, 127 S. Ct. at 1965).
__._,_.___
http://www.ca3.uscourts.gov/opinarch/064688p.pdf
In light of the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955 (2007), we have cautioned that the factual allegations in the complaint must not be “so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
In addition, “it is no longer sufficient to allege mere elements of a cause of action; instead ‘a complaint must allege facts suggestive of [the proscribed] conduct.’ ” Id. (alteration in original) (quoting Twombly, 127 S. Ct. at 1969 n.8).
We have interpreted Twombly’s emphasis on “plausibility” to mean that the complaint’s “ ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ ” Id. at 234 (quoting Twombly, 127 S. Ct. at 1965).
__._,_.___
Monday, September 08, 2008
employment - state min. wage act - domestic workers
Bayada Nurses, Inc. v. Dept. of Labor & Industry - Commonwealth Court - September 4, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/477MD07_9-4-08.pdf
Home health aides held entitled to state minimum wage and overtime protections under state Minimum Wage Act (MWA), 43 P.S. 333.105(a)(2), (4), and regulations, 34 Pa. Code 231.1(b), which mandated coverage where the work was done as an employee of a third party, such as petitioner, and not the householder her/himself.
These state laws provide coverage where federal law does not, 29 CFR 552.3, 552.109(a). The law is clear, however, that the FLSA does not pre-empt state regulations of wages and overtime if the state's standards are more beneficial to workers, FLSA sec. 218(a).
The dissent felt that the case was not ripe, because DLI had not taken action against the employer, which had failed to exhaust administrative remedies.
http://www.courts.state.pa.us/OpPosting/CWealth/out/477MD07_9-4-08.pdf
Home health aides held entitled to state minimum wage and overtime protections under state Minimum Wage Act (MWA), 43 P.S. 333.105(a)(2), (4), and regulations, 34 Pa. Code 231.1(b), which mandated coverage where the work was done as an employee of a third party, such as petitioner, and not the householder her/himself.
These state laws provide coverage where federal law does not, 29 CFR 552.3, 552.109(a). The law is clear, however, that the FLSA does not pre-empt state regulations of wages and overtime if the state's standards are more beneficial to workers, FLSA sec. 218(a).
The dissent felt that the case was not ripe, because DLI had not taken action against the employer, which had failed to exhaust administrative remedies.
PFA - jurisdiction - sufficiency of evidence
BTW v. PJL - Superior Court - August 27, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/S11044_08.pdf
The trial court had jurisdiction over PFA involving abuse of a child even though defendants lived and abuse took place outside of Pennsylvania, since a Pennsylvania court had previously entered a custody order concerning the child and had "exclusive, continuing jurisdiction" over custody and related matters under 23 Pa. C.S. 5422(a) and 5402 (definition of "child custody proceeding" includes PFA action."
In addition, the evidence was sufficient to establish abuse, where it included hitting with a belt, pulling hair, bruising, marks on back.
http://www.courts.state.pa.us/OpPosting/Superior/out/S11044_08.pdf
The trial court had jurisdiction over PFA involving abuse of a child even though defendants lived and abuse took place outside of Pennsylvania, since a Pennsylvania court had previously entered a custody order concerning the child and had "exclusive, continuing jurisdiction" over custody and related matters under 23 Pa. C.S. 5422(a) and 5402 (definition of "child custody proceeding" includes PFA action."
In addition, the evidence was sufficient to establish abuse, where it included hitting with a belt, pulling hair, bruising, marks on back.
PFA - reasonable fear - course of conduct
Mescanti v. Mescanti - Superior Court - August 29, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/a17028_08.pdf
Husband's course of conduct held sufficient to cause reasonable fear of bodily injury in wife. That conduct included
- threats that she'd better not to sleep or even close her eyes
- fact that husband had guns in the house, and wife heard sounds of gun cocking
- husband interrupting wife's sleep, hacking into her email, following her around, disconnecting phone lines, etc.
It was held that "the record amply supports the trial courts's conclusion that wife established, by a preponderance of the evidence, that husband engaged in a course of conduct that place wife in reasonable fear of bodily injury.
http://www.courts.state.pa.us/OpPosting/Superior/out/a17028_08.pdf
Husband's course of conduct held sufficient to cause reasonable fear of bodily injury in wife. That conduct included
- threats that she'd better not to sleep or even close her eyes
- fact that husband had guns in the house, and wife heard sounds of gun cocking
- husband interrupting wife's sleep, hacking into her email, following her around, disconnecting phone lines, etc.
It was held that "the record amply supports the trial courts's conclusion that wife established, by a preponderance of the evidence, that husband engaged in a course of conduct that place wife in reasonable fear of bodily injury.
employment - nursing - good moral character
Sellers v. State Board of Nursing - Commonwealth Court - August 28, 2008 - unreported memorandum decision
http://www.courts.state.pa.us/OpPosting/CWealth/out/297CD08_8-28-08.pdf
Petition for reinstatement of license of former R.N. denied because of her failure to accept responsibility for her wrongdoing, which related to abuse of alcohol. She was not honest and forthright and truthful with the state licensing authorities. The Board acted properly in conditioning reinstatement, in part, on an actual acknowledgment of wrongdoing, which is an important initial step in preventing recurrence of wrongful conduct and restoring the licensee's credibility. This applies to any wrongful conduct, not just fraudulent conduct. The licensing act "requires good moral character as a qualification for a license to practice nursing."
http://www.courts.state.pa.us/OpPosting/CWealth/out/297CD08_8-28-08.pdf
Petition for reinstatement of license of former R.N. denied because of her failure to accept responsibility for her wrongdoing, which related to abuse of alcohol. She was not honest and forthright and truthful with the state licensing authorities. The Board acted properly in conditioning reinstatement, in part, on an actual acknowledgment of wrongdoing, which is an important initial step in preventing recurrence of wrongful conduct and restoring the licensee's credibility. This applies to any wrongful conduct, not just fraudulent conduct. The licensing act "requires good moral character as a qualification for a license to practice nursing."
Friday, September 05, 2008
UC - willful misconduct - working to the best of one's ability
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.
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.
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."
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