consumer - Debt Management Services Act - constitutionality

US Organizations for Bankruptcy Alternatives v. Dept. of Banking - Cmwlth. Court - February 25, 2010 (2-1 decision)


http://www.pacourts.us/OpPosting/Cwealth/out/69MD09_2-25-10.pdf


A 3-judge panel of the Commonwealth Court held that sections of the Debt Management Services Act, Act of October 9, 2008, P.L. 1421, 63 P.S. §§ 2401 – 2449 were facially unconstitutional. The DMSA (Act 117), grants the Department of Banking broad powers to regulate both debt settlement services (DSS) Providers and providers of debt management services (DMS Providers).


Regulation of conduct
Because we have held, Association of Settlement Companies v. Department of Banking, 977 A.2d 1257, 1262-63 (Pa. Cmwlth. 2009), that the Department lacks the authority to promulgate regulations affecting DSS Providers, we must declare the Section 3(b) requirement that DSS Providers operate “in accordance with regulations promulgated by the department regarding the conduct of debt settlement services,” 63 P.S. § 2403(b), unconstitutional and unenforceable.


Regulation of fees
Similarly, in Association of Settlement Companies, this Court held that Act 117, Section 15(h) of Act 117, 63 P.S. § 2415(h), provided no standards or restraints on its grant of authority to the Department to set and regulate the fees that DSS Providers may charge. Id., 977 A.2d at 1269- 70.


Licensing
However, with regard to the licensing of DSS Providers, i“Act 117 contains adequate policy choices with regard to the licensing of DSS Providers and contains sufficient standards to guide and restrain the Department in carrying out these policy choices.” Id., 977 A.2d at 1265. Therefore, we do not have, at this stage in the litigation, any basis upon which to declare the remainder of Act 117 unconstitutional. We, therefore, grant USOBA’s Application only in part, as discussed above, and deny it in part.

UC - after-discovered evidence

Mansour v. UCBR - Cmwlth Court - February 25, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1221CD09_2-25-10.pdf


Employer did not become aware of Claimant’s fabrication of the facts concerning a fire at work until after Employer terminated Claimant. The Board, however, relied on this fabrication when it determined that Claimant committed willful misconduct.

In PrimePay, LLC v. UCBR, 962 A.2d 684 (Pa. Cmwlth. 2008), this Court held that an employer satisfies its burden of proving willful misconduct by evidence discovered after the termination of the employee if it establishes that the willful misconduct was concealed and it would have terminated the employee had it been aware of the concealed misconduct.

Astrue v. Ratliff: Who Owns Court Awarded Attorney's Fees?

The United States Supreme Court heard oral argument in the case of Astrue v. Ratliff on February 22, 2010.

In this case, the Social Security Administration argued that an award of fees and other expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), is payable to the prevailing party in Social Security cases and that an award of such attorneys’ fees is subject to an administrative offset to satisfy the prevailing party’s debt, if any, to the United States.

The SSA Claimant countered that because the award belongs to the party’s attorney and not to the party itself, the award of attorneys’ fees cannot be subject to an offset for a debt that is not his or her own.

The result in this case will have a serious impact on the ability of low-income claimants to retain counsel in cases before the Social Security Administration that are subject to the Equal Access to Justice Act.

A full summary of the case and the arguments of the respective parties has been compiled by the Legal Information Institute at the Cornell Law School. That summary can be viewed at THIS LINK.

admin. law - appeal - preservation of issues - claim that hearing was unfair

Atwell v. UCBR - Cmwlth. Court - February 17, 2009 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1030CD09_2-17-10.pdf


The fairness of a hearing is a matter of a constitutional dimension that can be raised for the first time in an appeal to this Court. See Felici v. UCBR, 444 A.2d 843 (Pa. Cmwlth. 1982) (holding that claimant’s challenge to the fairness of his hearing may be raised by the claimant for the first time in his brief to this Court).


Claimant was thus allowed to present his argument that the Referee did not ask him if he waived his right to counsel at the hearing and did not provide him with assistance in cross-examining witnesses, 34 Pa. Code sec. 101.21(a), even though he did not raise the issue before the UCBR.

admin. law - hearsay - due process

Speight v. Dept. of Corrections - Cmwlth. Court - February 16, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/663CD09_2-16-10.pdf


This case involves proof of the DOC's costs for medical treatment, which it sought to be placed on Speight, the prisoner-petitioner.


Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Bonegre v. Workers’ Compensation Appeal Board (Bertolini’s), 863 A.2d 68 (Pa. Cmwlth. 2004).


In an administrative hearing, hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding but only if competent evidence of record corroborates it. Walker v. UCBR, 367 A.2d 366 (Pa. Cmwlth. 1976).3

While [the petitioner] did not object to the admission of the medical bills, the Department, despite citing to Walker, has failed to cite anywhere in the record where those bills were corroborated by any competent evidence. In this case, all that [the DOC witness] did was go over each invoice and state the amount on the invoice. In the case of the invoice from the hospital where there were itemized amounts, she indicated what each amount was for. The other two invoices merely had a total due. She could not identify who created the document and who redacted the information pertaining to the phone numbers and addresses.

Because this Court has previously held that corroboration of the unobjected-to document is required, see Lee v. Pennsylvania Board of Probation and Parole, 885 A.2d 634 (Pa. Cmwlth. 2005), and there was no corroboration in this case, there was a violation of the hearsay rule.

3 The Walker Rule is not truly a rule of evidence but based on the principle that fundamental due process requires that no adjudication be based solely upon hearsay evidence. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172, 175 (1990) (quoting with approval Justice Flaherty’s concurring opinion in UCBR v. Ceja, 493 Pa. 588, 427 A.2d 631, 643 (1981)).

admin. law - petition for review - record - newly-discovered evidence

Grever v. UCBR - Cmwlth. Coourt - February 16, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/1008CD09_2-16-10.pdf


The Commonwealth Court refused the claimant's request to take judicial notice of a pleading in a related case (before the Human Relations Commn.) where


- the pleading came into being after the the UC referee decision but before the UCBR decision
- the claimant did not ask the UCBR for permission to submit newly-discovered evidence
- the claimant appealed to Cmwlth. Court and attached the pleading to the Petition for Review
- claimant did not ask the court to take judicial notice of the document


The Commonwealth Court, when reviewing matters in its appellate capacity, is bound by the facts certified in the record on appeal. Cambria County Mental Health/Mental Retardation v. State Civil Service Commission, 756 A.2d 103, 106 (Pa. Cmwlth. 2000).

Although a court “may take judicial notice of filings or developments in related proceedings which take place after the judgment appealed from.” See Werner v. Werner, 267 F.3d 288, 295 (3d Cir. 2001), issues not raised at the earliest possible time during a proceeding are waived. Dehus v. UCBR, 545 A.2d 434 (Pa. Cmwlth. 1988).

The Claimant here, although able to do so, failed to present the documents prior to the Board issuing its decision. Allowing Claimant to present the documents now would usurp the Board’s role as the fact-finder and arbiter of credibility. Thus, judicial notice will not be taken of records which were available to Claimant prior to but presented after the Board’s decision was issued.

LIHEAP - sec. 8 - rent included heat - rent as fixed % of income

Sweetman v. DPW - December 15, 2009 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/786CD09_12-15-09.pdf


Applicant found to be not eligible for LIHEAP under 55 Pa. Code § 601.31(2)(i)(B), which provides that renters whose heating cost is included as an undesignated portion of rent and whose rent is based on a fixed income percentage are ineligible for LIHEAP benefits.

If the applicant directly paid a vendor for the main source of his heat or paid indirectly for heat, but not as a fixed percentage of his income, he would be eligible for LIHEAP cash benefits. In the present matter, Petitioner does not pay directly for his heat, but pays for his heat as part of his rent, which is a fixed percentage of his income.


Applicant testified and argued that his landlord did not provide sufficient heat and that he had to use electric space heaters to supplement the primary heat, which was natural gas. Although the applicant argued that his space heaters are the “main” source of heat, sec. 601.3 of the regulations provides that the “main” fuel type is the source of energy for the central heating system of the residence, or if the residence is not centrally heated, the source of energy used most by the household. 55 Pa. Code § 601.3.

DPW found that the main fuel type is natural gas and that applicant did not establish that electricity, as the source used to supply space heaters, is the “main” fuel type for applicant's home. "Therefore, we cannot say that DPW/BHA or the ALJ erred in concluding that Petitioner was ineligible for LIHEAP benefits."

procedure - standing - mootness

Finn v. Rendell - Commonwealth Court - February 2, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/505MD09_2-9-10.pdf

County sued the governor, general assembly, and state treasurer for reimbursement for percentage of country DA's salary, which state was to pay under the county code, 16 P.S. § 1401(p).

standing - The court held that the county had standing to bring the action. "One seeking judicial resolution of a dispute must satisfy a threshold requirement of standing to bring the action by demonstrating a substantial, direct and immediate interest in the outcome of the litigation. Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 888 A.2d 655 (2005). A substantial interest is an interest exceeding the interest of all citizens in procuring obedience to the law; an interest is direct if there is a causal connection between the asserted violation and the harm complained of; an interest is immediate if the causal connection is neither remote nor speculative. City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A.2d 566 (2003)."

mootness - The court held that the case was not moot. "Under the mootness doctrine, an actual case or controversy must exist at all stages of review, not just when the complaint is filed. Pub. Defender's Office of Venango County v. Venango County Court of Common Pleas, 586 Pa. 317, 893 A.2d 1275 (2006); Harris v. Rendell, 982 A.2d 1030 (Pa. Cmwlth. 2009). The existence of a case or controversy requires "a real and not a hypothetical legal controversy and one that affects another in a concrete manner so as to provide a factual predicate for reasoned adjudication …." City of Philadelphia v. SEPTA, 937 A.2d 1176, 1179 (Pa. Cmwlth. 2007)."

consumer - payday loans - arbitration agreement

Clerk, et al. v. Ace Cash Express, Inc. - ED Pa. - January 29, 2010

http://www.paed.uscourts.gov/documents/opinions/10D0111P.pdf

The court grant the motion to compel arbutration of Defendant ACE Cash Express, Inc. (“ACE”), in an action based on payday loans, a form of consumer lending involving short-term loans secured by excessively high interest rates

Plaintiffs alleged violations of the Pennsylvania Consumer Discount Company Act, 7 P.S. § 6201 et seq., the Pennsylvania Loan Interest and Protection Law, 41 P.S. § 101 et seq., and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq.

The payday loan agreement contained an arbitration clause, which stated that the agreement covered “all federal or state law claims, disputes or controversies, arising from or relating directly or indirectly to the Loan Agreement,” as well as “all claims based upon a violation of any state or federal constitution, statute or regulation," and that it was to be interpreted under Delaware law.

The court held that, under the Third Circuit’s holding in Kaneff v. Delaware Title Loans, Inc., 587 F.3d 616, 620 (3d Cir. 2009), applying Delaware law to the Arbitration Agreement would be contrary to a fundamental policy of Pennsylvania, and that Pennsylvania has a materially greater interest than Delaware, the state chosen in the Arbitration Agreement, and that it would thusl apply Pennsylvania law when determining whether the Arbitration Agreement is unconscionable.

However, the court found that the agreement was not procedurally unconscionable under Pennsylvnia law and was thus enforceable.

custody - jurisdiction - UCCJEA - inconvenient forum

A.D. v. M.A.B - Superior Court - February 1, 2010

http://www.pacourts.us/OpPosting/Superior/out/S75045_09.pdf

M.A.B. (“Father”) appeals from the order entered in the Philadelphia County Court of Common Pleas, which declined jurisdiction in this child custody matter in favor of the courts of the State of Michigan upon reconsideration of the trial court’s order of February 23, 2009, as requested by A.D. (“Mother”). We hold that the trial court considered and properly weighed all the relevant factors for inconvenient forums pursuant to 23 Pa.C.S. § 5427. Accordingly, we affirm.

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social security - atty. fees - sentence four remand - filing deadline

Walker v. Astrue - 3d Cir. - February 2, 2010

http://www.ca3.uscourts.gov/opinarch/081446p.pdf

This case presents a question of first impression in the Third Circuit and one that has divided our sister courts of appeals: what filing deadline under the Federal Rules of Civil Procedure governs a petition for attorney fees under Section 406(b) of the Social Security Act when a case is remanded under sentence four of Section 405(g) for a determination of benefits?

The Fifth and Eleventh Circuits have held that Rule 54(d)(2)’s fourteen-day filing deadline applies, see Bergen v. Barnhart, 454 F.3d 1273, 1277 (11th Cir. 2006); Pierce v. Barnhart, 440 F.3d 657, 663 (5th Cir. 2006), while the Tenth Circuit uses the more amorphous “reasonable time” standard under Rule 60(b), see McGraw v. Barnhart, 450 F.3d 493, 505 (10th Cir. 2006).

The District Court sua sponte dismissed Counsel’s petitions, holding that, under either rule, Counsel’s request was untimely.

We now join the Fifth and Eleventh Circuits in holding that Rule 54(d)(2) is the appropriate standard, subject to tolling until counsel’s notification of an award of benefits on remand. Accordingly, we will reverse the District Court’s dismissal and remand to give Counsel an opportunity to present evidence of his notification of the award.

I.

__._,_.___

stalking; PFA contempt

Commonwealth v. Abed - Superior Court - January 29, 2010

http://www.pacourts.us/OpPosting/Superior/out/A32014_09.pdf

Defendant's conviction for stalking under 18 Pa.C.S.A. § 2709.1 and contempt under a PFA order upheld on appeal.

Defendant's many "lewd and obscene texts, calls, flyers, and letters that accused Complainant of having an infectious disease are clearly encompassed in the statutory language [defining stalking]. Appellant’s assertion that proof of physical contact is necessary to convict him of stalking directly conflicts with Commonwealth v. Miller, 689 A.2d 238, 240 (Pa. Super. 1997), in which this Court rejected as “ludicrous” a similar argument that the defendant could not be convicted of stalking when he did not cause physical harm or attempt harm to his victim.

This Court found the “intent to place one in fear of bodily injury is but one mens rea that will sustain a conviction under § 2709(a) and (b)… as a conviction may be upheld upon a showing that the accused intended to harass, annoy, alarm or cause substantial emotional distress.”

disability - duty of ALJ to develop record - pro se claimant - mental health issues

Comiskey v. Astrue - ED Pa. - January 2010

http://www.paed.uscourts.gov/documents/opinions/10D0088P.pdf

This case was remanded, consistent with Magis. Judge's recommendation, for further development of the record.

The Third Circuit repeatedly has recognized that an ALJ must “assume a more active role when the claimant is unrepresented.” Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979); see also Reefer, 326 F.3d at 380; Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980). An ALJ “owes a duty to a pro se claimant to help him or her develop the administrative record.” Reefer, 326 F.3d at 380; see also Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995) (“ALJs have a duty to develop a full and fair record in social security cases.”). In particular, “‘[w]hen a claimant appears at a hearing without counsel, the ALJ must scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.’” Reefer, 326 F.3d at 380 (quoting Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (internal citation and quotation marks omitted)); see also Ventura, 55 F.3d at 902 (“[A]n ALJ must secure relevant information regarding a claimant’s entitlement to social security benefits.”). Although lack of counsel alone is not cause for remand when the claimant knowingly has waived the right to counsel, remand is appropriate when the lack of counsel prejudices the claimant or causes unfairness at administrative level, such as when the ALJ fails to adequately develop the administrative record. Livingston, 614 F.2d at 345.

The court was especially troubled by the lack of any "indication that the ALJ made any effort to obtain plaintiff’s medical records from any of the treating sources he identified. The need for such information was particularly important given the conflicting opinion evidence in the record regarding the extent to which plaintiff’s medical and physical impairments limited his ability to work.

Although the Third Circuit has declined to “say that an [ALJ] must search out all the relevant evidence which might be available,” Hess v. Sec’y of Health, Educ. & Welfare, 497 F.2d 837, 840 (3d Cir. 1974), in the circumstances presented here [where the claimant had a mental impairment] the ALJ should have obtained medical records from plaintiff’s treating sources as part of his obligation to help the pro se plaintiff develop the administrative record. See Reefer, 326 F.3d at 380 (stroke pro se claimant); Isaac v. Astrue, No. 08-1661, 2009 WL 1492277, at *13 (W.D. Pa. May 28, 2009); Sloss v. Astrue, No. 07-344, 2008 WL 2355853, at *2 (W.D. Pa. June 9, 2008)

In addition to the heightened duty of care an ALJ owes when the claimant is unrepresented, the ALJ is also obliged, under the applicable regulations, to ensure that the claimant’s complete medical history is developed for at least the twelve months preceding the month in which the claimant filed his application. 20 C.F.R. §§ 404.1512(d), 416.912 (d); see also 42 U.S.C. § 423(d)(5)(B).16 Thus, at a minimum, the ALJ should have obtained plaintiff’s medical records from those medical sources from which plaintiff received treatment in the twelve months prior to October 2006, when plaintiff filed his applications for DIB and SSI.

While the ALJ’s failure to develop the record must have prejudiced the claimant in order for remand to be appropriate, see Livingston, 614 F.3d at 345, the Third Circuit has not required the claimant to produce the very records to be considered in order to show prejudice, see Reefer, 326 F.3d at 380...; Dobrowolsky, 606 F.2d at 407-08...; Jozefick v. Shalala, 854 F. Supp. 342, 349 (M.D. Pa. 1994) (noting that the Third Circuit has remanded cases “in order to more fully develop the record without requiring the claimant to make a specific proffer of the evidence that would be presented to the ALJ on remand”). Rather, remand is appropriate when the ALJ “has failed to exercise his authority to attempt to fill significant evidentiary gaps that are material to the disability determination.” Id.

wages - FLSA - overtime - professional capacity

Pignataro v. Port Authority of NY and NJ - Third Circuit - January 27, 2010

http://www.ca3.uscourts.gov/opinarch/083605p.pdf

This case concerns helicopter pilots, not likely to be our clients, but it cites important general principles of FLSA law.

Helicopter pilots were held to be not exempt as “professional” employees under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(a)(1), and therefore are entitled to mandatory time-and-a-half overtime compensation. The court award them two years of damages rather than three, because it concluded that the employer's FLSA violation was not willful.

The FLSA mandates that if an employee works more than forty hours per week, he must be compensated for overtime hours at a rate at least one-and-one-half times the employee’s regular rate. 29 U.S.C. § 207(a)(1). Employees who work in a “professional capacity,” however, are exempt from this rule.

Exemptions from the FLSA are to be narrowly construed against the employer, and the employer has the burden of establishing an exemption. Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1143 (3d Cir. 1983). Whether an employee is an exempt professional is a mixed question of law and fact.

To establish that the employer's violation of the FLSA was willful, plaintiffs must prove that the employer knew it was violating the FLSA or acted in reckless disregard of whether it was violating the FLSA. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 135 (1988). Whether a violation of the FLSA is willful is a question of fact that is reviewed for clear error. See Bianchi Trison Corp. v. Chao, 409 F.3d 196, 208 (3d Cir. 2005).

UC - willful misconduct - remoteness doctrine

Rich Carbide Burs, Inc. v. UCBR - Cmwlth Court - January 22, 2010 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/520CD09_1-22-10.pdf

The employer did not violate the remoteness doctrine by waiting from Thursday to the next Tuesday to fire the claimant for misconduct, because there was no substantial delay between the alleged act and the termination.

Where “there is an unexplained substantial delay between the claimant’s misconduct and the employer’s act to terminate the claimant, the remoteness doctrine will preclude an employer from seeking a denial of benefits based on allegations of willful misconduct.” Raimondi v. Unemployment Compensation Board of Review, 863 A.2d 1242, 1247 (Pa. Cmwlth. 2004) (emphasis in original). In the case at bar, the three-day delay between the altercation and Claimant’s discharge was, by any measure, insubstantial.

custody - homosexual parents - Constant A. overruled - shared custody - school-age children

M.A.T v. G.S.T - Superior Court - January 21, 2010

http://www.pacourts.us/OpPosting/Superior/out/e03008_09.pdf

Appellant M.A.T. (“Mother”) appeals the trial court’s order dated August 11, 2008 denying her petition for modification of a custody order granting Appellee G.S.T. (“Father”) primary physical custody of their daughter K.J.T. (“Daughter”).

The trial court based its decision on (1) its application of an evidentiary presumption against a homosexual parent, see, e.g., Constant A. v. Paul C.A., 496 A.2d 1 (Pa. Super. 1985); and (2) rejection of uncontroverted expert testimony recommending shared custody.

For the reasons set forth herein, we reverse the trial court’s order and grant Mother’s petition for modification of the custody order. In doing so, we overrule the holding and reasoning in Constant.

We further rule that the trial court in this case abused its discretion in rejecting the recommendations of the jointly retained custody evaluator and basing its decision to award primary physical custody to Father upon the trial court’s personal opinion that shared custody is seldom (if ever) in the best interests of school-age children.

Accordingly, we vacate the trial court’s order dated August 11, 2008 and remand for entry of an order consistent with this opinion.

Authenticating Web Pages as Evidence

An informative article entitled Authenticating Web Pages as Evidence, has been published in the Law Technology News section of law.com.

The article addresses the issue of how to authenticate evidence of something published on the Internet, typically in the form of a screen shot or PDF copy of a web page. it discusses authentication under the Federal Rules of Evidence, the use of the Internet Archive, and the issue of judicial notice of information on web sites.

The article was authored by M. Anderson Berry and David Kiernan. David C. Kiernan is a litigator in the Trial Practice Group of Jones Day in its San Francisco Office and is a member of the firm's E-discovery Committee. M. Anderson Berry is also an attorney in the same office.

mandamus

Petsinger v. OVR - Cmwlth. Court - January 21, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/263MD09_1-21-10.pdf


Petitioner brought mandamus action against the Office of Vocational Rehabilitation concerning his termination from employment following his threats against a fellow employee. The court held that mandamus would not lie.


The Civil Service Act, the federal Rehab Act, and the PA Rehab Act provided petitioner with adequate statutory and administrative remedies to seek redress for OVR’s alleged discriminatory treatment in his employment, his termination from that employment, his request to be reinstated or returned to his former civil service position, as well as OVR’s denial of his repeated requests to reopen his application for vocational rehabilitation services. Therefore, he is barred from raising these issues by petition for mandamus.

A writ of mandamus is an extraordinary remedy which compels the official performance of a ministerial act or a mandatory duty only where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a lack of any other appropriate or adequate remedy. McGill v. Dep’t of Health, Office of Drug & Alcohol Programs, 758 A.2d 268 (Pa. Cmwlth. 2000).

“Thus, in an action involving an administrative agency’s exercise of discretion, the court may only direct the agency to perform the discretionary act and may not direct the agency to exercise its judgment or discretion in a particular way or direct the retraction or reversal of action already taken.” Id. at 270. “The purpose of mandamus is not to establish legal rights, but to enforce those rights already established beyond peradventure.” Id.

A party challenging administrative decision-making who has not exhausted available administrative remedies is precluded from obtaining judicial review by mandamus6 or otherwise. Matesic v. Maleski, 624 A.2d 776 (Pa. Cmwlth. 1993). The availability of adequate, meaningful administrative remedies is a bar to a mandamus action. Mueller v. Pa. State Police Headquarters, 532 A.2d 900 (Pa. Cmwlth. 1987). In addition, an individual who allows his statutory appeal rights to expire cannot at a later date reclaim those appeal rights under the guise of a petition for mandamus. Lizzi v. Unemployment Comp. Bd. of Review, 466 Pa. 450, 353 A.2d 440 (1976).

disability - attorney fees - reasons for rejection of evidence - clearly established precedent

Kutoloski v. Astrue - ED Pa. - Janaury 2010

http://www.paed.uscourts.gov/documents/opinions/10D0062P.pdf

The ALJ's failure to explain his consideration of the testimony of the claimant's parents, after being directed to do so on remand, was contrary to clearly established precedent.

“[T]he burden is on the government to demonstrate that its position was ‘substantially justified.’” Watkins v. Harris, 556 F. Supp. 493, 498 (E.D. Pa. 1983). Specifically, the commissioner must show that its position has “a reasonable basis in both law and fact.” Pierce v. Underwood, 487 U.S. 552, 555 (1988).

Thus, “[w]hen the government’s legal position clearly offends established precedent . . . its position cannot said to be ‘substantially justified.’” Washington v. Heckler, 756 F.2d 959, 962 (3d Cir. 1985).

For this purpose, the government’s position includes “not only its litigation position but also the agency position that made the lawsuit necessary.” Id. at 961.

The commissioner has not met his burden. All of the commissioner’s arguments, in fact, fail for the same reason: The ALJ’s failure to explain his treatment of the testimony of plaintiff’s parents was contrary to established Third Circuit precedent. Although the ALJ recite[d] the testimony of plaintiff’s parents, the ALJ fail[ed] to properly explain his consideration of that testimony....

This failure violated the Third Circuit’s directive in Burnett v. Commissioner of Social Security Administration, 220 F.3d 112 (3d Cir. 2000), that the ALJ “must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence,” id. at 121 (emphasis added) – a requirement that exists because “‘[i]n the absence of such indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored,’” id. (quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).

In other words, the ALJ’s failure to explain his disregard of the testimony proffered by plaintiffs’ parents “clearly offends established precedent.” It therefore has no reasonable basis in law.

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UC - voluntary quit - sexual harassment

Miscoe Chiropratic Clinic v. UCBR - January 13, 2010 - unpublished memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1050CD09_1-13-10.pdf

The court rejected the employer's appeal and upheld the UCBR decision that claimant had good cause to quit her job because of sexual harassment by her employer, himself.

The court said that "[i]In order to establish a necessitous and compelling cause to leave employment, a claimant must establish that circumstances that produced real and substantial pressure to terminate employment existed; a reasonable person would act in the same manner; she acted with common sense; and she made a reasonable effort to preserve her employment. First Fed. Sav. Bank v. UCBR, 957 A.2d 811 (Pa. Cmwlth. 2008).

Sexual harassment may constitute a necessitous and compelling reason to voluntarily leave employment if the claimant can show that she acted with common sense and prudence to alleviate the sexual harassment. Hussey Copper Ltd. v. UCBR, 718 A.2d 894 (Pa. Cmwlth. 1998). Such common sense action includes providing the employer an opportunity to understand the nature of a claimant’s objections and to take steps to resolve those objections. Collier Stone Co. v. UCBR, 876 A.2d 481 (Pa. Cmwlth. 2005).

Where a mechanism, such as an employment policy, exists to deal with problems of sexual harassment, a claimant must make a good faith effort to utilize that mechanism. Hussey Copper Ltd. However, a claimant is not required to perform a futile act. Mauro v. UCBR, 751 A.2d 276 (Pa. Cmwlth. 2000). Further, where a claimant’s supervisor has knowledge of harassment against a claimant, the employer is deemed to have the knowledge as well, and the claimant is not required to report the harassment to higher levels of management. Peddicord v. UCBR, 647 A.2d 295 (Pa. Cmwlth. 1994).

Ultimately, the employer is responsible for eliminating harassment in the workplace. Collier Stone Co. We agree with the Board that Claimant would have committed a futile act by reporting the harassment to the office manager or Dr. Miscoe. It is undisputed that Dr. Miscoe is in charge of Employer’s office and is the only person in the office with the authority to terminate an employee. As the Board found, Dr. Miscoe grabbed and hugged Claimant, attempted to kiss her several times a week, and made inappropriate sexual comments to her. Claimant had no obligation to report the harassment to the office manager or Dr. Miscoe because the facts found by the Board establish that such report would have been futile. Accordingly, we affirm the Board’s order.

employment - wages - FLSA pre-empts Article III, sec. 24, of Pennsylvania Constitution

Council 13, AFSCME v. Commonwealth of Pennsylvania - Pennsylvania Supreme Court

majority - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-98-2009mo.pdf

consurring and dissenting opinion http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-98-2008codo.pdf

Article III, Section 24* of the Pennsylvania Constitution is preempted by the Fair Labor Standards Act of 1938, 29 U.S.C. § 206(a).

The governor is not prohibited from paying the wages of state employees who are covered by FLSA, but who are required to work from monies in the Commonwealth’s Treasury, where that money has not yet been appropriated by the General Assembly.

* Section 24 provides: No money shall be paid out of the treasury, except on appropriations made by law and on warrant issued by the proper officers; but cash refunds of taxes, licenses, fees, and other charges paid or collected, but not legally due, may be paid, as provided by law, without appropriation from the fund into which they were paid on warrant of the proper officer. PA. CONST. art. III, § 24.

TILA - disclosure violations - actual damages - detrimental reliance

Vallies et al. v. Skye Bank - Third Circuit - December 31, 2009

http://www.ca3.uscourts.gov/opinarch/084160p.pdf

In this putative class action, the sole issue presented by this appeal is whether a plaintiff must prove detrimental reliance in order to recover actual damages sustained because of a disclosure violation under § 1640(a) of the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601–67.

The District Court, following persuasive authority from our sister courts of appeals, concluded that detrimental reliance was required, and granted summary judgment for defendant because plaintiff failed to plead and could not prove detrimental reliance. We will affirm.

In fact, every court of appeals that has spoken on this issue has required a showing of detrimental reliance.5 Most district courts are in accord.6

Courts of appeal cases 5 Kline, 557 F.3d 285, 297 (6th Cir. 2009) (“[A]ctual damages require a showing of detrimental reliance.”); McDonald v. Checks-N-Advance, Inc. (In re Ferrell), 539 F.3d 1186, 1192 (9th Cir. 2008) (finding no valid basis to overturn the rule requiring a showing of detrimental reliance to establish actual damages); Gold Country Lenders v. Smith (In re Smith), 289 F.3d 1155, 1157 (9th Cir. 2002) (“We join with other circuits and hold that in order to receive actual damages for a TILA violation . . . a borrower must establish detrimental reliance.”); Turner v. Beneficial Corp., 242 F.3d 1023, 1028 (11th Cir. 2001) (en banc) (“We hold that detrimental reliance is an element of a TILA claim for actual damages . . . .”); Perrone v. Gen. Motors Acceptance Corp., 232 F.3d 433, 434–40 (5th Cir. 2000) (holding that detrimental reliance is an element of a claim for actual damages and rejecting numerous arguments to the contrary); Stout v. J.D.Byrider, 228 F.3d 709, 718 (6th Cir. 2000) (affirming the denial of class certification based on the need for individualized assessment of whether “each putative class member relied upon false representations or failures to disclose”); Peters v. Jim Lupient Oldsmobile Co., 220 F.3d 915, 917 (8th Cir. 2000) (requiring a showing of proximate causation and adopting a four-prong reliance test for establishing actual damages); Bizier v. Globe Fin. Servs., Inc., 654 F.2d 1, 4 (1st Cir. 1981) (noting in dicta the need to show causation for an award of actual damages “in addition to a threshold showing of a violation of a TILA requirement”).

District court cases 6 Inc., No. 04-2474, 2005 WL 1398512, at *9–10 (D.N.J. June 13, 2005); Nevarez v. O’Connor Chevrolet, Inc., 303 F. Supp. 2d 927, 934 (N.D. Ill. 2004); In re Currency Conversion Fee Antitrust Litig., 265 F. Supp. 2d 385 (S.D.N.Y. 2003); Cannon v. Cherry Hill Toyota, Inc., 161 F. Supp. 2d 362 (D.N.J. 2001); Anderson v. Rizza Chevrolet, Inc., 9 F. Supp. 2d 908, 913–14 (N.D. Ill. 1998); Brister v. All Star Chevrolet, Inc., 986 F. Supp. 1003, 1008 (E.D. La. 1997); Barlow v. Evans, 992 F. Supp. 1299, 1301 (M.D. Ala. 1997); Cirone-Shadow v. Union Nissan, 955 F. Supp. 938, 943 (N.D. Ill. 1997); Wiley v. Earl’s Pawn & Jewelry, Inc., 950 F. Supp. 1108, 1114–15 (S.D. Ala. 1997); Adiel v. Chase Fed. Sav. & Loan Ass’n, 630 F. Supp. 131, 133–35 (S.D. Fla. 1986), aff’d, 810 F.2d 1051 (11th Cir. 1987); McCoy v. Salem Mortgage Co., 74 F.R.D. 8, 12–13 (E.D. Mich. 1976). But see Lopez v. Orlor, 176 F.R.D. 35, 40 (D. Conn. 1997) (granting class certification and rejecting the argument that TILA plaintiffs cannot recover actual damages unless they could have gotten more favorable terms elsewhere); Sutliff v. County Sav. & Loan Co., 533 F. Supp. 1307, 1313 (N.D. Ohio 1982) (measuring actual damages to be the difference between the improperly increased interest rate and the original interest rate); In re Russell, 72 B.R. 855, 857 (Bankr. E.D. Pa. 1987) (concluding that actual damages are available for “substantial” TILA violations without the need to prove detrimental reliance).

What constitutes detrimental reliance not decided - This case does not present an occasion to evaluate which specific facts and circumstances constitute detrimental reliancebecause Vallies does not contend that he relied on Sky Bank’s disclosure violations. Because we find that a showing of detrimental reliance is required to recover actual damages for a TILA disclosure violation, and Vallies neither pled nor made such showing, the grant of summary judgment was proper on the claim for actual damages.19

19 The District Court supported its grant of summary judgment by reciting a four-prong test from the Eighth Circuit: “a plaintiff must show that ‘(1) he read the TILA disclosure statement; (2) he understood the charges being disclosed; (3) had the disclosure statement been accurate, he would have sought a lower price; and (4) he would have obtained a lower price.’” Mem. Order at 10 (citing Peters, 220 F.3d at 917). No doubt a plaintiff who can satisfy the Peters test will successfully establish detrimental reliance. Although Peters has been influential in many courts, including those in our circuit, e.g., Cannon v. Cherry Hill Toyota, Inc., 161 F. Supp. 2d 362 (D.N.J. 2001), others have used different language. For accuracy-of-disclosure violations like the ones presented here of determining actual (in contrast to statutory) damages.”). In sum, we have never rejected the requirement of detrimental reliance to recover actual damages for TILA disclosure violations.

For accuracy-of-disclosure violations like the ones presented here, other courts have held that detrimental reliance can be shown where plaintiffs can establish that they would have foregone the loan completely had they received and reviewed an accurate disclosure. See, e.g., United States v. Petroff-Kline, 557 F.3d 285, 297 (6th Cir. 2009) (“To establish detrimental reliance, the debtor must demonstrate that he or she would either have received a better interest rate for the loans elsewhere or would have elected not to take the loan had the required information been available.”); McDonald v. Checks-N-Advance, Inc. (In re Ferrell), 539 F.3d 1186, 1192 (9th Cir. 2008) (“The consumer must show that she ‘would either have secured a better interest rate elsewhere, or foregone the loan completely.’” (quoting Gold Country Lenders v. Smith (In re Smith), 289 F.3d at 1157)); Stout v. J.D. Byrider, 228 F.3d 709, 718 (6th Cir. 2000). Nevertheless, plaintiff here does not assert and cannot prove he detrimentally relied. This case does not present the occasion to formulate factors that may constitute detrimental reliance.

wages - FLSA pre-empts Art. III, sec. 24 of Pennsylvania Constitution

Council 13, AFSCME v. Commonwealth of Pennsylvania

Pennsylvania Supreme Court - December 28, 2009

majority - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-98-2009mo.pdf

consurring and dissenting opinion http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-98-2008codo.pdf

Article III, Section 24* of the Pennsylvania Constitution is preempted by the Fair Labor Standards Act of 1938, 29 U.S.C. § 206(a).

The governor is not prohibited from paying the wages of state employees who are covered by FLSA, but who are required to work from monies in the Commonwealth’s Treasury, where that money has not yet been appropriated by the General Assembly.

* Section 24 provides: No money shall be paid out of the treasury, except on appropriations made by law and on warrant issued by the proper officers; but cash refunds of taxes, licenses, fees, and other charges paid or collected, but not legally due, may be paid, as provided by law, without appropriation from the fund into which they were paid on warrant of the proper officer. PA. CONST. art. III, § 24.

contracts - attorney fees - reasonableness

McMullen v. Kutz - Supreme Court - December 28, 2009

majority opinion - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-93-2008mo.pdf

concurrence/dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-93-2008codo.pdf

dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-93-2008do.pdf

The parties entered into a marriage and property settlement agreement that provided for the payment of attorney fees and costs incurred by one party in enforcing the contract against the breaching party. The agreement did not specify that the fees had to be reasonable.

The dispute in this case concerns the trial court’s authority to address the reasonableness of the attorney fees claimed. Wife, and a minority of courts across the country, would read the plain language of the contract to require any and all fees incurred by the non-breaching party to be payable by the breaching party. We cannot accept this reading, however, because the potential for abuse is too high. If we were to forbid a reasonableness inquiry by a trial court, there would be no safety valve and courts would be required to award attorney fees even when such fees are clearly excessive.

Instead, we join the majority of our sister states n.3 in finding that parties may contract to provide for the breaching party to pay the attorney fees of the prevailing party in a breach of contract case, but that the trial court may consider whether the fees claimed to have been incurred are reasonable, and to reduce the fees claimed if appropriate. We hold that the trial court had the authority to consider the reasonableness of the attorney fees claimed. Accordingly, we affirm the decisions of the Superior Court and the trial court.

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Footnote 3 - See, e.g., Alabama Educ. Ass’n v. Black, 752 So.2d 514, 519 (Ala. Civ. App. 1999) (“In Alabama, where there is an agreement to pay an attorney fee and the agreement does not speak specifically to the reasonableness of the fee, a “reasonable” fee will be inferred.”); McDowell Mountain Ranch Community Ass'n, Inc. v. Simons, 165 P.3d 667, 671 (Ariz. Ct. App. 2007) (collecting cases and stating: “Notwithstanding the general rule that attorneys' fees are enforced in accordance with the terms of a contract, a contractual provision providing for an award of unreasonable attorneys' fees will not be enforced.”); Griffin v. First Nat. Bank of Crossett, 888 S.W.2d 306, 311 (Ark. 1994) (“Implicit in our holding is a requirement that any attorney's fees awarded should be reasonable.”); Crest Plumbing and Heating Co. v. DiLoreto, 531 A.2d 177, 183 (Conn. App. Ct. 1987) (“We construe the term ‘attorney's fees’ as an award for ‘reasonable attorney's fees’ in this case because the term ‘reasonable’ is implied by law even when it is absent in the contractual provision.”) (emphasis in original); Mahani v. Edix Media Group, Inc., 935 A.2d 242, 245 - 246 (Del. 2007) (“Delaware law dictates that, in fee shifting cases, a judge determine[s] whether the fees requested are reasonable.”); Concord Enterprises, Inc. v. Binder, 710 A.2d 219, 225 (D.C. 1998) (“[W]here a contractual agreement expressly provides for the payment of attorney's fees, the trial court's discretion is limited to ascertaining what amount constitutes a ‘reasonable’ fee award.”); Dunn v. Sentry Ins., 462 So.2d 107, 108 (Fla. Dist. Ct. App. 1985) (holding that a prevailing party is not entitled to recover the total amount which it has paid or agreed to pay if that amount is excessive or unreasonable); Lettunich v. Lettunich, 111 P.3d 110, 120 (Idaho 2005) (providing for trial courts to consider several factors in arriving at a reasonable attorney fee calculation); Heller Financial, Inc. v. Johns- Byrne Co., 637 N.E.2d 1085, 1092 (Ill. App. Ct. 1994) (“While the parties may, by a private agreement, override the “American Rule” which holds that each will be responsible for any legal fees they incur in a civil litigation, such contractually-provided fees will be approved by the court only if they are reasonable.”); Walton v. Claybridge Homeowners Ass'n, Inc., 825 N.E.2d 818, 826 (Ind. Ct. App. 2005) (“Attorney fees awarded under a contract must be reasonable.”); Ales v. Anderson, Gabelmann, Lower & Whitlow, P.C., 728 N.W.2d 832, 842 (Iowa 2007) (“When a written contract allows for the recovery of attorney's fees, the award must be for reasonable attorney's fees.”); Hollenbach v. Holden, 728 So.2d 544, 551 (La. Ct. App.1999) (“[I]mplied within the attorney's fee provision of the contract is that the amount of attorney's fees to be determined to be due either party will be reasonable.”); Yim K. Cheung v. Wing Ki Wu, 919 A.2d 619, 625 (Me. 2007) (“As a general rule, courts must enforce contract provisions that require the payment of attorney fees, so long as they are reasonable.”); Myers v. Kayhoe, 892 A.2d 520, 532 (Md. 2006) (“Even in the absence of a contract term limiting recovery to reasonable fees, trial courts are required to read such a term into the contract and examine the prevailing party's fee request for reasonableness.”); Zeeland Farm Services, Inc. v. JBL Enterprises, Inc., 555 N.W.2d 733, 736 (Mich. Ct. App. 1996) (“[R]ecovery is limited to reasonable attorney fees.”); State Bank of Cokato v. Ziehwein, 510 N.W.2d 268, 270 (Minn. Ct. App. 1994) (“Where loan documents authorize a lender to recover legal expenses associated with collection, however, Minnesota courts will enforce the provision as long as the fees are reasonable.”); Belfer v. Merling, 730 A.2d 434, 443 (N.J. Super. Ct. App. Div. 1999) (“[A]ny fee arrangement is subject to judicial review as to its reasonableness.”); Robison v. Katz, 610 P.2d 201, 209 (N.M. Ct. App. 1980) (“It is clearly within the equitable power of the court to consider and reduce excessive fees.”); SO/Bluestar, LLC v. Canarsie Hotel Corp., 825 N.Y.S.2d 80, 81 - 82 (N.Y. App. Div. 2006) (“While the plaintiff was entitled to attorneys' fees pursuant to the Note, [a]n award of attorneys' fees pursuant to such a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered.”) (internal quotations omitted); Northwoods Condominium Owners' Ass’n v. Arnold, 770 N.E.2d 627, 630 - 631 (Ohio Ct. App. 2002) (“Under Ohio law, contractual provisions awarding attorney fees are enforceable and not void as against public policy so long as the fees awarded are fair, just, and reasonable as determined by the trial court upon full consideration of all the circumstances of the case.”); Benchmark Northwest, Inc. v. Sambhi, 83 P.3d 348, 349 (Or. Ct. App. 2004) (“The award is mandatory; the trial court has no discretion to deny it, although it does have discretion as to what amount is ‘reasonable.’”); South Carolina Elec. & Gas Co. v. Hartough, 654 S.E.2d 87, 91 (S.C. Ct. App. 2007) ( “When an award of attorney's fees is based upon a contract between the parties, the determination of the fees is left to the discretion of the trial court and will not be disturbed absent an abuse of discretion.”); Trayner v. Cushing, 688 P.2d 856, 858 (Utah 1984) (“Where the parties have agreed by contract to the payment of attorney fees, the court may award reasonable fees in accordance with the terms of the parties' agreement.”); Dewey v. Wentland, 38 P.3d 402, 420 (Wyo. 2002) (“Even in the face of a valid contractual provision for attorney's fees, we have clearly stated that a trial court has the discretion to exercise its equitable control to allow only such sum as is reasonable or the court may properly disallow attorney's fees altogether on the basis that such recovery would be inequitable.”