UC - willful misconduct v. incompetence - level of previous ability

Hoffman v. UCBR - Cmwlth. Court - August 8, 2012 - unpublished memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/232CD12_8-8-12.pdf

To establish willful misconduct, the employer must demonstrate that the employee’s conduct was of an intentional and deliberate nature. Myer v. Unemployment Comp. Bd. of Review, 533 Pa. 373, 625 A.2d 622 (1993). Therefore, "[m]ere incompetence, inexperience or inability of an employee can justify a discharge, but will not constitute willful misconduct so as to render an employee ineligible for benefits." Cullison v. Unemployment Comp. Bd. of Review, 444 A.2d 1330, 1332 (Pa. Cmwlth. 1982). However, a claimant’s work performance below the level of his ability over a period of time may be considered a conscious or careless disregard of the employer’s interests and may rise to the level of willful misconduct. Younes v. Unemployment Comp. Bd. of Review, 467 A.2d 1227 (Pa. Cmwlth. 1983).
________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

FMLA - employee notice - pretext analysis

Lichtenstein v. UPMC - 3d Cir. - August 3, 2012

http://www.ca3.uscourts.gov/opinarch/113419p.pdf

This case was largely decided on the basis that there were factual disputes that precluded summary relief for the employer.

It contains a lot of good discussion and analysis about FMLA in general and, in particular

- the specificity of the infomation that an employee has to give an employer to invoke FMLA, and

- the nature of pretext analysis when a legitimate justification for terminating an employee precedes the employee's exercise of FMLA rights.

consumer protection - "person" - community college

Meyer et al. v. Community College of Beaver County - Pa. Supreme Court - August 3, 1012

http://www.pacourts.us/OpPosting/Supreme/out/626wal2011Granted.pdf

The court granted the defendant's petition for allowance of appeal from a Commonwealth Court decision, 30 A.3d 587 (Pa. Cmlth. 2011) holding that a community college is a "person" under the state Consumer Protection Law.

The community college was sued by former students who were enrolled in a muncipal police officer training program, which was uncertified during the course of their studies.

police liability for warrantless entry into home

Ryburn v. Huff - US Supreme Court - January 23, 2012

http://www.supremecourt.gov/opinions/11pdf/11-208.pdf

Sec. 1983 liability for police entry into private home rejected.

In Brigham City v. Stuart, 547 U. S. 398, 400 (2006), we held that officers may enter a residence without a warrant when they have "an objectively reasonable basis for believing that an occupant is . . . imminently threatened with [serious injury]." We explained that "‘[t]he need to protect or preserve life or avoid serious injury is justificationfor what would be otherwise illegal absent an exigency or emergency.’" Id., at 403 (quoting Mincey v. Arizona, 437 U. S. 385, 392 (1978)). In addition, in Georgia v. Randolph, 547 U. S. 103, 118 (2006), the Court stated that "it would be silly to suggest that the police would commit a tort by entering [a residence] . . . to determine whetherviolence . . . is about to (or soon will) occur." There was such an objectively reasonable basis in this case, involving entry into the home of a student who was alleged to have threatened to "shoot up" his school.

UC - willful misconduct - progressive disciplinary system

Hughes v. UCBR - Cmwlth. Court - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1448CD11_7-31-12.pdf

Court reversed Board in this willful misconduct case.

An employee’s conduct cannot be considered willful misconduct for unemployment compensation purposes when the employer has not adhered to its own progressive disciplinary system in discharging the employee. Looney v. UCBR, 529 A.2d 612, 614 (Pa. Cmwlth. 1987).

Employer's administrator conceded that ER did not follow its own progressive discipline policy before it terminated Claimant. The administrator testified that the policy requires two corrective actions prior to termination: a verbal discussion with the employee and a written warning. It is undisputed that Claimant was never provided with a written warning about her handling of the financial records. Further, there was no evidence that the infraction at issue would warrant deviating from the progressive discipline policy. See, e.g., Frigm v. UCBR, 642 A.2d 629, 634 (Pa. Cmwlth. 1994) (employer’s personnel policy expressly provided that "a serious offense may warrant immediate discharge."). The ER witness did not assert that Claimant’s conduct was an "egregious circumstance" that provided an exception to the progressive discipline procedures. Indeed, the pages of the handbook that allow for immediate discharge for "egregious circumstances" were not offered into evidence by Employer.

In addition, there was "absolutely no evidence" to support the critical finding that Claimant had a conflict of interest.

_________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

Intentional infliction of emotional distress

Full discussion of Pennsylvania law on this issue in

Messer v. First Financial - ED Pa. - July 30, 2012

http://www.paed.uscourts.gov/documents/opinions/12D0742P.pdf

Borough residential landlord-tenant ordinance upheld

Berwick Area Landlord Association v. Borough of Berwick - Cmwlth. Court - June 27, 2012


http://www.pacourts.us/OpPosting/Cwealth/out/766CD11_6-27-12.pdf

Borough LT ordinance upheld against various challenges. Law regulates residential rentals and requires them to be licensed, maintained and registered and sets out various duties of owners and occupants.

The court relied on, inter alia, Berwick Area Landlord Association v. Borough of Berwick, No. 07-316, 2007 WL 2065247 (M.D. Pa. July 16, 2007) (rejecting federal substantive due process claim by same plaintiffs regarding same ordinance); Bloomsburg Landlords Association, Inc. v. Town of Bloomsburg, 912 F. Supp. 790, 804-05 (M.D. Pa. 1995), aff’d, 96 F.3d 1431 (3d Cir. 1996) (rejecting federal substantive due process claim regarding similar ordinance) and McSwain v. Commonwealth, 520 A.2d 527, 529 (Pa. Cmwlth. 1987) (en banc).

Discriminatory lending - Pa. Human Relations Act

Girard Finance v. Pennsylvania Human Relations Commission - Pa. Cmwlth. Court - July 27, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/2189CD11_7-27-12.pdf

The court upheld a PHRC order requiring respondents Girard Finance and Richter to

- cease and desist from unlawfully discriminating against individual and others because of their race and/or national origin

- pay substantial money damages

- pay a civil penalty

- provide employees with training regarding non-discriminatory practices

- develop and implement a recording system to track all of its transactions

- report to the PHRC the means by which it will comply with the order.

Respondents were found to have unlawfully discriminated against individual complainant an other similarly situated persons on account of their race in the terms and conditions of loans of money and in the terms and conditions of real estate-related transactions.

The state Human Relations Act expressly authorizes the PHRC "[t]o initiate, receive, investigate and pass upon complaints charging unlawful discriminatory practices." 43 P.S. § 957(f). Section 5(h)(8) of the PHRA makes it unlawful to "[d]iscriminate in real estate-related transactions." 43 P.S. § 955(h)(8). "[R]eal estate-related transactions" include "the making or purchasing of loans . . . for . . . commercial property." Section 4(y)(1) of the PHRA, 43 P.S. § 954(y)(1).

Marcellus Shale - Act 13 - Pa. Constitution

Robinson Township v. PUC - Cmwlth. Court - July 26, 2012 (66 pp.)

http://www.pacourts.us/OpPosting/Cwealth/out/284MD12_7-26-12.pdf

In a case involving a township's challenge to state statute concerning the Marcellus Shale, the commonwealth filed PO's and both parties moved for summary relief on some issues.

- standing - municipalties , landowners, associations, et al. -
- equal protections - Article I, sec. 1, and 14th Amendment - PO's rejected
- special laws - Article III, sec. 32
- natural resources - Article I, sec. 27
- separation of powers
- delegation of legislative power
- vagueness

On the Commonwealth's preliminary objections, the court sustained many, rejected a few, held that two sections of the law were unconstitutional.

The township's claims about violation of equal protection and impropert delegation of legislative power were upheld and enforcement of much of the law, Act 13, was enjoined.

UC - notice of hearing - presumption of receipt - opportunity to rebut

Volk v. UCBR - Cmwlth. Court - July 26, 2012 (4-3)

http://www.pacourts.us/OpPosting/Cwealth/out/576CD11_7-26-12.pdf

A claimant who alleges that he did not get notice of the referee hearing must be afforded a hearing at which he has an opportunity to rebut the presumption of receipt of the notice.

The UCBR "may not rely solely upon the sufficiency of statements made in a petitioner’s appeal document or request to reopen the hearing, but must provide the petitioner against whom the presumption of receipt is being asserted the opportunity to submit evidence to rebut that presumption and to support the asserted reasons believed to be proper cause for not appearing at the hearing before the Board determines whether the petitioner had proper cause for not attending the hearing. Our holding is consistent with the Department’s regulation at 34 Pa. Code § 101.104, this Court’s decision in Coin Automatic Laundry, 447 A.2d 690, 691 (Pa. Cmwlth. 1982), and the principles of due process. To hold otherwise would effectively transform the presumption of receipt of mail into an irrebutable presumption. Therefore, we vacate the Board’s Order and remand for further proceedings consistent with this opinion.

contracts - adhesion - exculpatory clause - recklessness - public policy

Tayar v. Camelback Ski Corp. - Pa. S.Ct. - July 18, 2012

Majority -  http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011mo.pdf  (21 pp.) (Todd + 4)

Concur/dissent - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011codo1.pdf  (2 pp.) (Eakin)

Concur/dissent - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011codo2.pdf  (8 pp.) (Baer)

This is a case personal injury involving a ski resort. The plaintiff signed a contract containing a release from liability for the defendant.

The court held that it was against public policy for a defendant to be relieved of reckless conduct.

- Exculpatory clauses - contract of adhesion - Exculpatory provisions are generally disfavored. They are only enforceable where three conditions are met. First, the clause must not contravene public policy. Second, the contract must be between persons concerning their private affairs. Third, each party must be a free bargaining agent so the contract is not one of adhesion. Employers Liab. Assur. Corp. v. Greenville Business Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966).

- Public policy - Avoidance of contract terms on public policy grounds requires a showing of overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards. See Williams v. GEICO Gov’t Employees Ins. Co., __ Pa. __, 32 A.3d 1195 (2011). Public policy is more than a vague goal. It is be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term “public policy” is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy[.] . . . Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts . . . contrary to public policy. The courts must be content to await legislative action. Further, it is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring.

- A release for reckless conduct is against public policy - There is a spectrum of tortious conduct recklessness falls. At one end of that spectrum, exculpatory clauses that release a party from negligence generally are not against public policy, and are enforceable provided certain criteria are met. On the other end of the continuum are releases for intentional conduct. It is elementary and foundational to our system of criminal and tort law that parties are not permitted to intentionally harm one another. Accordingly, releases for intentional tortious conduct are likewise prohibited. Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence. This conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence, but aligns it more closely with intentional conduct. As a result, we are inclined to apply the same prohibition on releasing reckless conduct as we do for intentional conduct.

This view is supported by the conclusions of courts in other jurisdictions. The overwhelming majority of our sister states find releases for reckless conduct are against public policy, and federal courts purporting to apply Pennsylvania law have barred the enforcement of releases for reckless behavior.

Were we to sanction releases for reckless conduct, parties would escape liability for consciously disregarding substantial risks of harm to others; indeed, liability would be waivable for all conduct except where the actor specifically intended harm to occur. There is near unanimity across jurisdictions that such releases are unenforceable, as such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct. We therefore conclude that, even in this voluntarily recreational setting involving private parties, there is a dominant public policy against allowing exculpatory releases of reckless behavior, which encourages parties to adhere to minimal standards of care and safety.

Housing - Sec. 8 - conviction for possession of drug paraphernalia not disqualifying

Romagna v. Housing Authority of Indiana Co. - Cmwlth. Court -July 13, 2012 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1648CD11_7-13-12.pdf

Conviction for possession of "drug paraphernalia" did not disqualify applicant from sec. 8 housing assistance, since such activity is not the basis for disqualification under any statutes or regulations.

HUD regulations give a housing authority power to deny entry to an applicant who has engaged in "[d]rug-related criminal activity." 24 C.F.R. §982.553(a)(2)(ii)(A)(1). This regulation defines "drug-related criminal activity" as the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug. 24 C.F.R. §5.100. It defines "drug" as any "controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. §802)." 24 C.F.R. §5.100.

This regulation parrots Section 8(f)(5) of the Housing and Community Development Act of 1974, 42 U.S.C. §1437f(f)(5), which also defines "drug-related criminal activity" as "the illegal manufacture, sale, distribution, use, or possession with intent to manufacture, sell, distribute, or use, of a controlled substance (as defined in Section 802 of title 21)." Title 21 states that a controlled substance is a "drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter."

Title 21 incorporates the meaning of "drug" set forth in the Food, Drug, and Cosmetic Act, 21 U.S.C. §321(g)(1), which states as follows: The term "drug" means (A) articles recognized in the official United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (B) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (C) articles (other than food) intended to affect the structure or any function of the body of man or other animals; and (D) articles intended for use as a component of any article specified in clause (A), (B), or (C)…. 21 U.S.C. §321(g)(1).

Neither the definition of "drug" nor "controlled substance" includes drug paraphernalia. The Housing Authority does not offer any authority for its view that these terms do include drug paraphernalia. It merely argues that the trial court’s analysis ignores the reality that possession of drug paraphernalia is a crime because it goes hand-in-hand with drug usage.

Under the Housing Authority’s own regulation, a drug-related criminal activity requires the actual use or possession of a drug, and it does not include possession of paraphernalia. Applicant’s drug paraphernalia conviction was not relevant to her eligibility for housing.

________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

Child abuse - expungement - clear and convincing

TT v. DPW - July 13, 2012 - Commonwealth Court

http://www.pacourts.us/OpPosting/Cwealth/out/1890CD11_7-13-12.pdf

Following its recent opinion in G.V. v. DPW, the court said....

Historically, in expungement proceedings, the Department has had the burden to show that the indicated report was accurate by substantial evidence. Bucks County CYS v. DPW, 616 A.2d 170 (Pa. Cmwlth. 1992). However, in the recently argued G.V. v. Department of Public Welfare, we held that the use of this standard to maintain statutorily-designated information from an indicated report on the ChildLine Registry did not adequately protect the rights of the accused and adopted the clear and convincing evidence standard for those proceedings.

Clear and convincing evidence is the highest burden in our civil law and requires that the fact-finder be able to come to clear conviction, without hesitancy, of the truth of the precise fact in issue. Suber v. Pennsylvania Commission on Crime and Delinquency, 885 A.2d 678, 682 (Pa. Cmwlth. 2005). To meet that standard, it necessarily means that the witnesses must be found to be credible, that the facts to which they have testified are remembered distinctly, and that their testimony is so clear, direct, weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Id.

Here, an order maintaining the indicated child abuse report summary on the ChildLine Registry against T.T., a Pennsylvania public school teacher, results in a significant impact not only on his personal and professional reputation, but also on his ability to continue practicing his profession. Such an impact demonstrates the need to apply the stricter clear and convincing evidence standard in expungement proceedings.

EAJA - disability - closely approaching advanced age - HALLEX v. binding case law

Jones v. Astrue - ED Pa - July 10, 2012

http://www.paed.uscourts.gov/documents/opinions/12D0666P.pdf

It is undisputed that if the ALJ had placed claimant -- 2 weeks from his 55th birthday -- in the higher category of “person of advanced age,” the grids would have directed a finding of disabled. However, despite Jones’s proximity to age fifty-five, the ALJ’s decision neither referred to a “borderline situation” nor cited 20 CFR §§ 404.1563(b) or 416.963(b). The decision did not consider which age category best described Jones’s ability to adjust to new work, but stated only that he was “a person closely approaching advanced age” based on his chronological age, contrary to the Third Circuit’s holding in Kane v. Heckler, where the Third Circuit held that the regulations require the ALJ to explicitly acknowledge a borderline situation and to determine which age category best describes the claimant’s ability to adjust to new work. 776 F.2d at 1132-34.

Following Kane, Jones’s proximity to age fifty-five at the time of the ALJ’s decision presented a borderline situation. Sections §§ 404.1563(b) and 416.963(b) require the Commissioner to consider the use of the higher age category in such situations. The ALJ was at least required to address the application of §§ 404.1563(b) and 416.963(b) to Jones’s case and explain why he used the lower age category.

The court rejected the Commissioner’s argument that the ALJ adequately considered Jones’s ability to adapt to new work by soliciting testimony from the VE. It noted that the ALJ never addressed the existence of a borderline situation during his colloquy with the VE, but instead asked the VE to assume at all times that Jones was categorized as a person closely approaching advanced age. The court also also held that HALLEX did not relieve the ALJ from explicitly recognizing the borderline situation as required by Kane because HALLEX is not legally binding.

child abuse - expungement - standard of proof - clear and convincing

G.V. v. DPW - Cmwlth. Court - July 12, 2012 (5-2)

http://www.pacourts.us/OpPosting/Cwealth/out/125CD11_7-12-12.pdf

The "clear and convincing" standard must apply to child abuse registry cases, since basing an indicated report on substantial evidence, as was done by the ALJ and as set forth in the Law, "does not adequately protect the rights of the accused perpetrator given the nature of the proceedings and the adverse consequences which flow from a finding of abuse and registration in the statewide Child[Line] Registry." J.S. v. Department of Public Welfare, 528 Pa. 243, 596 A.2d 1114 (1991). The standard of proof in expungement proceedings must be one of clear and convincing evidence.

Article I, Section 1 of the Pennsylvania Constitution provides: "All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting . . . reputation . . . ." Pa. Const. art. I, § 1. Because reputation is a protected fundamental interest under Article I, Section 1 of the Pennsylvania Constitution, the loss of reputation, the stigma associated with being named a child abuser, and the effect of such a determination on one's ability to gain employment all demand a higher standard of proof in order to satisfy due process.

The court applied a balancing test under R. v. Department of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994) and Mathews v. Eldridge, 424 U.S. 319, 335 (1976), using the following factors to be considered: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‟s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements will entail.

After weighing these factors, the Court held that "substantial evidence must support a determination of whether child abuse has occurred, but there must be clear and convincing evidence of child abuse to maintain statutorily-designated information from an indicated report on the ChildLine Registry."

convictions - expungement - underage drinking, simple assault

Commonwealth v. Furrer - Superior Court - July 11, 2012

http://www.pacourts.us/OpPosting/Superior/out/s39012_12.pdf

Appellate court affirmed refusal to expunge simple assault conviction, but reversed and ordered expungment of conviction for underage drinking.

Expungement of criminal records is governed by statute. See Hunt v. Pennsylvania State Police, 603 Pa. 156, 166, 983 A.2d 627, 633 (2009) (citing 18 Pa.C.S.A. § 9122). “The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth.

There is a long-standing right in this Commonwealth to petition for expungement of a criminal arrest record, a right that is adjunct of due process. Carlacci v. Mazaleski, [798 A.2d 186,

Judicial analysis and evaluation of a petition to expunge depend upon the manner of disposition of the charges against the petitioner. When an individual has been convicted of the offenses charged, then expungement of criminal history records may be granted only under very limited circumstances that are set forth by statute. 18 Pa.C.S. § 9122; Hunt v. Pennsylvania State Police, 604 Pa. 156, 983 A.2d 627, 633 (2009). Commonwealth v. Wallace, ___ A.3d ___, 2012 WL 1893526 at *2 (Pa. Super. filed May 25, 2012) (citing Commonwealth v. Moto, ___ Pa. ___, ___, 23 A.3d 989, 993-994 (2011)).

Here, the record establishes the following undisputed facts: (1) Appellant was convicted of a violation of section 6308 in the Court of Common Pleas of Westmoreland County; (2) at age 22, he petitioned the Court of Common Pleas of Westmoreland County, seeking expungement of, inter alia, the section 6308 conviction; and (3) he satisfied all terms and conditions of the sentence imposed for the section 6308 violation. Therefore, pursuant to the plain, mandatory language of 18 Pa.C.S.A. § 9122(a)(3) the trial court was required to expunge all criminal history record information related to the section 6308 conviction. In not doing so, the trial court abused its discretion.
Expungment of a simple assault conviction is not mandatory under sec. 9122 and does not fit the discretionary criteria under sec. 9122(b), since the appellant here is not over age 70, is still alive, and simple assault is not a summary offense.

Proof of service - mailbox rule

Szymanski v. Dotey and Jenkins - Superior Court - July 11, 2012

http://www.pacourts.us/OpPosting/Superior/out/a08017_12.pdf

The mailbox rule provides that “depositing in the post office a properly addressed, prepaid letter raises a natural presumption, founded in common experience, that it reached its destination by due course of mail.” Jenson v. McCorkell, 154 Pa. 323, 325, 26 A. 366, 367 (Pa. 1893). As the Pennsylvania Supreme Court noted: “The overwhelming weight of statistics clearly indicates that letters properly mailed and deposited in the post office are received by the addressees.” Meierdierck v. Miller, 394 Pa. 484, 487, 147 A.2d 406, 408 (Pa. 1959). Thus, “[e]vidence that a letter has been mailed will ordinarily be sufficient to permit a jury to find that the letter was in fact received by the party to whom it was addressed.” Shafer v. A.I.T.S., Inc., 428 A.2d 152, 156 (Pa. Super. 1981).

However, “evidence of actual mailing is not required.” Commonwealth Dep’t of Transp. v. Brayman Constr. Corp., 513 A.2d 562, 566 (Pa. Commw. 1986). The Superior Court has held that “when a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Christie v. Open Pantry Food Marts Inc. of Delaware Valley, 352 A.2d 165, 166-67 (Pa. Super. 1975).

To trigger the presumption of receipt, “the party who is seeking the benefit of the presumption must adduce evidentiary proof that the letter was signed in the usual course of business and placed in the regular place of mailing.” Geise v. Nationwide Life & Annuity Co. of America, 939 A.2d 409, 423 (Pa. Super. 2007); Shafer, 428 A.2d at 156. “A presumption that a letter was received cannot be based on a presumption that the letter was mailed. A presumption cannot be based on a presumption.” Geise, 939 A.2d at 423. Documentary evidence of mailing or testimony from the author that a document was mailed may establish the presumption of receipt. See Grasse, 606 A.2d at 546 (holding appellees met burden of proof of mailing by producing certified driving record which included document showing notice was mailed); cf. Meierdierck, 394 Pa. at 487, 147 A.2d at 408 (holding that “[w]here the use of the mails as a means of acceptance is authorized or implied from the surrounding circumstances, the acceptance is complete by posting the letter in normal mail channels, without more.”).

In this case, the evidence did not establish that the relevant notice (setting a trial date) was mailed, or that it was prepared in the ordinary course of business and placed in the regular place of mailing. See Christie, 352 A.2d at 166- 67. The evidence was only that the court administrator was the author of the notice. But she did not testify that she placed the notice in her office’s usual place for outgoing mail, nor did she testify that she or any other employee mailed it via any method of mailing. Pursuant to Brayman and Christie, the testimony did not constitute competent evidence of mailing because she offered no testimony or evidence that she had placed the notice in the office’s regular place of mailing or on the custom as to the mailing of such notices. See Brayman, 513 A.2d at 566; Christie, 352 A.2d at 166-67.

The testimony also failed to conform to the rule set forth in Meierdierck, that introducing testimony that the notice was mailed suffices to establish the mailbox rule’s presumption of receipt. See Meierdierck, 394 Pa. at 487, 147 A.2d at 408. Although the witness testified that she was the author of the notice, she did not testify that the notice was mailed. Commonwealth v. Thomas, 814 A.2d 754 (Pa. Super. 2002).

UC - willful misconduct - rule violation - awareness/proof of rule

Doswell v. UCGBR - July 11, 2012 - unreported memorandum opinion
http://www.pacourts.us/OpPosting/Cwealth/out/1691CD11_7-11-12.pdf
Claimant found eligible for benefits in case where ER claimed a rule violation. The ER's only evidence of the rule was a written handbook, which was vague. There was no evidence that the Claimant was aware of the unwritten rule she was accused of having violated.

Where the employee is discharged for violation of a work rule, the employer must show not only that the employee violated the rule but also that the employee was aware of the rule and that her actions in violating the rule were intentional or deliberate. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965 (Pa. Cmwlth. 2010). An employee cannot be found to have intentionally or deliberately violated a work rule for purposes of establishing willful misconduct absent evidence that she was aware of the rule in question. Tongel v. Unemployment Compensation Board of Review, 501 A.2d 716 (Pa. Cmwlth. 1985).

UC - willful misconduct - poor attitude

Anderson v. UCBR - July 11, 2012 - unreported memorandum decision
http://www.pacourts.us/OpPosting/Cwealth/out/2379CD11_7-11-12.pdf

A vague finding that an employee was discharged for her poor attitude, without more, does not support a finding of willful misconduct. Unemployment Compensation Board of Review v. Dravage, 353 A.2d 88, 89 (Pa. Cmwlth. 1976). "An employee‟s poor attitude must be coupled with some specific conduct adverse to his employer‟s interest, or result in some identifiable detriment to the employer before a conclusion of willful misconduct is justified." Luketic v. UCBR, 386 A.2d 1045, 1047 (Pa. Cmwlth. 1978); see also UCBR v. Kullen, 346 A.2d 926, 927 (Pa. Cmwlth. 1975).

UC - vol. quit - sexual harassment

JJ Stanley Inc. v. UCBR - July 11, 2012 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/2166CD11_7-11-12.pdf

"[C]onduct such as unwanted sexual comments and requests for sexual favors … go beyond what must be tolerated in the workplace." Mutual Pharmaceutical Co. v. Unemployment Compensation Board of Review, 654 A.2d 37, 40 (Pa. Cmwlth. 1994). It is therefore well established that sexual harassment can constitute a necessitous and compelling reason to leave employment. Collier Stone Co., 876 A.2d at 484; Borough of Coaldale, 745 A.2d at 731; Comitalo, 737 A.2d at 344.

Claimant gave Employer sufficient notice of the sexual harassment. A claimant is not obligated to file a written or formal complaint of harassment or report every incident of harassment. Comitalo, 737 A.2d at 344; Mutual Pharmaceutical Co., 654 A.2d at 40; Homan v. UCBR, 527 A.2d 1109, 1111 (Pa. Cmwlth. 1987). "The law does not require a claimant to complain of each and every incident of sexual harassment nor does it require a formal complaint be filed." Homan, 527 A.2d at 1111. Moreover, Claimant fully complied with Employer’s sexual harassment policy. Employer’s sexual harassment policy required only that Claimant notify her supervisor of the harassment; it did not require her to submit a written report or statement. Claimant reported the harassment to her supervisor, who was the person at Employer who was responsible for addressing sexual harassment complaints.

Claimant also did not refuse any reasonable accommodation which could have permitted her to continue her employment. Claimant’s unwillingness to continue to work in contact with her harasser was reasonable and does not show any lack of good faith effort to preserve employment. Gavlick Personnel Services, Inc. v. UCBR, 706 A.2d 406, 408 (Pa. Cmwlth. 1998)

"[T]here is a certain level of conduct that an employee will not be required to tolerate and … the Court will not place all responsibility upon an employee to resolve his or her work dilemma. Ultimately the employer bears the responsibility for eliminating harassment against employees in the workplace." Comitalo, 737 A.2d at 345.





__._,_.___

FDCPA - damages - money paid as result of lawsuit barred by SOL

Hamid v. Stock & Grimes, LLP - ED Pa. July 9, 2012
http://www.paed.uscourts.gov/documents/opinions/12D0655P.pdf

Money paid by plaintiff/consumer after defendant/collector filed lawsuit barred by applicable statute of limitations is properly recoverable under the Fair Debt Collection Practices Act.

It is clear from its underlying purpose that debtors may recover for violations of the FDCPA even if they have defaulted on a debt. It follows that debtors may recover the amount paid to settle a debt, if the debt collector violated the FDCPA in making the collection, as occurred here. Hamid paid some or all of the money she owed to Discover Bank only as a result of the untimely lawsuit filed by S&G on behalf of the Bank. If her payment was not a proper element of actual damages under the FDCPA, a debt collector could harass a debtor in violation of the FDCPA, as a result of that harassment collect the debt, and thereafter retain what it collected. We do not believe that Congress intended this result.

Other good language

[T]here is universal agreement among scholars, law enforcement officials, and even debt collectors that the number of persons who willfully refuse to pay debts is minuscule.'" Id. at 165-66 (quoting S. Rep. No. 93-382, at 2 (1977), reprinted in 1977 U.S.C.C.A.N. at 1696)). The court further stated that "Congress recognized that 'the vast majority of consumers who obtain credit fully intend to repay their debts. When default occurs, it is nearly always due to an unforeseen event such as unemployment, overextension, serious illness or marital difficulties or divorce.'" Id.

UDAP - common law fraud not necessary - WD Pa.

Proof Of Common Law Fraud Not Needed To Maintain Suit Under "Catch-All" Section Of PA State Consumer Protection Law In Loan Servicer Jerk-Around Case

In a purported class action lawsuit filed in a U.S. District Court in Pittsburgh, Pennsylvania filed by two homeowners against a pair of mortgage servicers and a law firm/debt collector alleging conduct that is apparently now the standard for the servicing industry (jerk-arounds, conflicting communications, allegedly erroneous charges, etc.), a district judge recently granted the defendants' motion to dismiss several counts made against them, but allowed other counts to survive, thereby allowing the lawsuit to proceed.

Among the counts allowed to survive (specifically, count VII in the lawsuit) was one involving claims for violations under Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL").

The following excerpt is District Judge Mark R. Hornak's analysis of the applicable law and his assessment of the allegations in determining the the lawsuit should continue with regard to this count:

• The Unfair Trade Practices and Consumer Protection Law ("UTPCPL") is Pennsylvania's consumer protection law. Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 151 (Pa. Super. Ct. 2012). Its purpose is to prevent "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce," as defined by the act. Id.; 73 Pa. Cons. Stat. Ann. § 201-3 (West 2008). The Pennsylvania Supreme Court has stated that the UTPCPL should be liberally construed in order to effect its legislative goal of consumer protection. Bennett, 40 A.3d at 151 (citing Pennsylvania ex rel. Creamer v. Monumental Properties, Inc., 329 A.2d 812, 814 (Pa. 1974),
  
  Homeowners rely upon two specific definitional provisions of the UTPCPL for their claims that PHS. Citi, and Seterus engaged in "unfair or deceptive acts or practices." § 201-2(4).
  
  The first, Section 201-2(4)(v), is inapplicable to the facts as alleged by Homeowners. This section labels as "unfair or deceptive" the act of "[representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have." In other words, section 201-2(4)(v) applies to cases where a defendant misrepresents the characteristics of a product, such as suits involving false advertising. See, e.g., Haggart v. Endogastric Solutions, Inc., No. 10-0346, 2011 WL 466684, at *6 (W.D. Pa. Feb. 4, 2011) (noting that Pennsylvania law requires a plaintiff to allege, among other things, that the challenged advertisement is false for liability under section 201-2(4)(v) to attach); Glover, 2010 WL 5829248, at *9 (W.D. Pa Oct. 21, 2010) (dismissing claim against a mortgage servicer, because the servicer did not make any deceptive representations regarding the "characteristics, uses, or benefits" of a loan modification agreement); Meyer v. Cmty. Coll. of Beaver Cnty., 2 A.3d 499, 549 (Pa. 2010) (noting that sections 201-2(4)(v) through (vii) relate to claims of nonconforming goods or services). Homeowners' allegations that they paid improper reinstatement fees when in default does not equate to an allegation that PHS, Citi, or Seterus misrepresented the actual characteristics or benefits of the note and mortgage themselves. Glover, 2010 WL 5829248, at *9. Accordingly, to the extent that Homeowners bring claims against Defendants under section 201-2(4)(v) of the UTPCPL, that claim is dismissed with prejudice.
  
  The second UTPCPL provision upon which Homeowners rely is the "catchall provision" of section 201-2(4)(xxi).
  
  This section is expansive in that it encompasses a wide range of circumstances because a defendant need only engage in "any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding" for liability to attach. Id.
  
  PHS argues that a heightened level of pleading akin to an allegation of common law fraud is required to bring an action pursuant to the "catch-all" provision, and Homeowners fail to meet this heightened threshold. See, e.g., Ross v. Foremost Ins. Co., 998 A.2d 648, 654 (Pa. Super. Ct. 2010) ("In order to establish a violation of the [UTPCPL's] catchall provision, a plaintiff must prove all of the elements of common-law fraud." (internal quotations omitted)). Similarly, Citi and Seterus argue, among other things, that Homeowners do not show that they relied upon any statements from either company. Justifiable reliance on a misrepresentation is an element of common law fraud, along with scienter, intention by the defendant to induce action, and damages to the plaintiff. Id.
  
  Recent developments in Pennsylvania law convince this Court that meeting a heightened "fraud pleading" standard is not required to maintain a cause of action under the "catch-all" section of the UTPCPL.
  
  In Bennett v. A. T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145 (Pa. Super. Ct. 2012), the Pennsylvania Superior Court analyzed two conflicting lines of cases on this issue of the appropriate pleading standard. One line of cases relied upon the pre-1996 language of section 201-2(4)(xxi) to conclude that litigants must allege enough facts to satisfy the elevated pleading standard necessary for common law fraud. Id. at 152.
  
  However, the Bennett court noted that these cases had not considered the change to the "catch-all" provision's language in 1996, when the Pennsylvania legislature amended section 201-2(4)(xxi) to include the term "deceptive" in addition to the term "fraudulent." Id.
  
  In order to give effect to all words in the statute as required by the Pennsylvania rules of statutory construction, the Bennett court adopted the reasoning of an opposing line of cases, which held that the inclusion of the word "deceptive" in section 201-2(4)(xxi) "lessened the degree of proof needed to maintain an action under the "catch-all" provision. Id. at 153-55.
  
  The Superior Court concluded its reasoning by stating "we hold deceptive conduct which creates a likelihood of confusion or misunderstanding can constitute a cognizable claim under Section 201-2(4)(xxi)." Id. at 154-55.
  
  Accordingly, conduct that is capable of being interpreted as "misleading" falls within the reach of the UTPCPL. See id. at 156 (holding that the lower court correctly instructed the jury when it stated that "misleading conduct" was actionable under the UTPCPL's catch-all provision). Having reviewed the Bennett court's analysis and the cases underpinning its decision, this Court is satisfied that section 201-2(4)(xxi) does not require a litigant to plead the elements of common law fraud.
  
  Regarding the alleged deceptive conduct here, Homeowners have asserted sufficient facts at this stage in the proceedings to show that confusion or misunderstanding could reasonably arise from PHS's, Citi's, and Seterus's actions and that Homeowners were indeed misled by those actions.
  
  Homeowners allege that Citi referred Homeowners' mortgage to foreclosure while, at the same time, the company was representing to Homeowners that there was the possibility of an alternate payment arrangement. The purpose of this arrangement was to allow Homeowners to avoid the very foreclosure proceedings Citi initiated. PHS and Seterus then sent Homeowners multiple conflicting reinstatement letters, which Homeowners allege contain misrepresentations as to the amount of their debt. Homeowners further claim that they were damaged when they remitted a payment that included intentionally mislabeled fees. These allegations allow Homeowners to maintain a cause of action against all three Defendants under the UTPCPL's "catch-all" section.
  
  Citi and Seterus also advance another argument in support of their Motions to Dismiss regarding the UTPCPL. They claim that Homeowners lack standing to sue them under the UTPCPL, because neither Citi nor Seterus were original signatories to the note and mortgage, meaning that Homeowners cannot allege that they purchased any goods or services from either Citi or Seterus.
  
  However, the UTPCPL's reach is expansive, and, to that end, the Third Circuit in In re Smith, 866 F.2d 576 (3d Cir. 1989) emphasized that a district court should not limit the UTPCPL's application to only those circumstances where the unfair or deceptive conduct induced the consumer to make the initial purchase. Id. at 583.
  
  Such a reading of the statute "would insulate all kinds of practices from the [UTPCPL], such as debt collection, which occur after entering an agreement and which were not a basis for the original agreement." Id. (emphasis added). Similarly, liability can be imposed upon a mortgage assignee under the UTPCPL providing the plaintiff advances specific allegations of wrongdoing against the assignee, not simply against the original lender. See Murphy v. F.D.I.C., 408 Fed. App'x. 609, 611 (3d Cir. 2010) (emphasizing the UTPCPL does not impose liability on a loan assignee absent claims of an assignee's wrongdoing). Homeowners assert such allegations directly against both Citi and Seterus here. Therefore, the fact that Citi and Seterus were not parties to the original mortgage is not dispositive.
  
  For the foregoing reasons, all Defendants' Motions to Dismiss as they apply to Homeowners' claims under the UTPCPL are denied.

For Judge Hornak's ruling, see Trunzo v. Citi Mortgage, No. 2:11-cv-01124 (W.D. Pa. June 25, 2012).

Editor's Note: Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL") is that state's consumer protection law that generally prohibits unfair and deceptive practices ("UDAP") in trade and commerce within the state. For similar UDAP statutes in other states, see Consumer Protection In The States: A 50-State Report on Unfair and Deceptive Acts and Practices Statutes.

FLSA - joint employer

In re Enterprise Rent-a-Car - 3d Cir. - June 29, 2012


http://www.ca3.uscourts.gov/opinarch/112883p.pdf

District Court decision upheld. In re Enterprise Rent-A-Car Wage & Hour Employment Practice Litigation, 735 F.Supp.2d 277 (W.D.Pa.2010).

We are of the view that the starting point for the joint employer test should be N.L.R.B. v. Browning-Ferris Indus. of PA., 691 F.2d 1117, 1123 (3d Cir. 1982). We conclude that "where two or more employers exert significant control over the same employees—[whether] from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment—they constitute ‘joint employers’” under the FLSA. Id. at 1124 see also Moldenhauer v. Tazewell-Pekin Consol. Communications Ctr., 536 F.3d 640 (7th Cir. 2008).

This is consistent with the FLSA regulations regarding joint employment, which state that a joint employment relationship will generally be considered to exist “[w]here the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with another employer.” 29 C.F.R. § 791.2(b). Ultimate control is not necessarily required to find an employer-employee relationship under the FLSA, and even “indirect” control may be sufficient. In other words, the alleged employer must exercise “significant control” Browning-Ferris In , 691 F.2d at 1124.

A court should consider these factors in determining whether an entity is an employer: 1)does the alleged employer have: (1) authority to hire and fire employees; (2) authority to promulgate work rules and assignments, and set conditions of employment, including compensation, benefits, and hours; (3) day-to-day supervision, including employee discipline; and (4) control of employee records, including payroll, insurance, taxes, and the like.

These factors do not constitute an exhaustive list of all potentially relevant facts, and should not be "blindly applied." . . . A determination as to whether a defendant is a joint employer "must be based on a consideration of the total employment situation and the economic realities of the work relationship." . . . . Trial courts should not be confined to "narrow legalistic definitions" and must instead consider all the relevant evidence, including evidence that does not fall neatly within one of the above factors. . . .

UC - voluntary quit - 42% decrease in pay

New Castle Area Transit Authority v. UCBR - June 27, 2012 - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/2325CD11_6-27-12.pdf

Claimant had good cause to quit when his work assignment changed because of medical issues and his wages decreased from $18.75 per hour to $10.85 per hour.

"[A] substantial reduction in pay can constitute a ‘necessitous and compelling’ cause for voluntarily terminating one’s employment. It is true that there is no talismanic percentage figure that separates a substantial reduction from one that is not. Each case must be measured by its own circumstances." Ship Inn, Inc. v. UCBR, 412 A.2d 913, 915 (Pa. Cmwlth. 1980).

While this Court has found "a 3.1[%] pay cut is not a substantial figure sufficient to establish necessitous and compelling cause[,]" Pacini v. UCBR, 518 A.2d 606, 608 (Pa. Cmwlth. 1986), this Court in Ship Inn found that a 22% cut in salary was a necessitous and compelling cause for voluntary employment termination. Similarly, this Court in Morysville Body Works, Inc. v. UCBR, 430 A.2d 376 (Pa. Cmwlth. 1981) affirmed the UCBR’s award of benefits where the Claimant voluntarily terminated his employment due to a 25% wage reduction.

In the instant case, Claimant was offered a job at a wage rate of 42% less his final hourly wage. Clearly, this wage reduction is a substantial cut, thereby, establishing a necessitous and compelling cause for Claimant to voluntarily terminate his employment. Accordingly, the UCBR did not err in concluding the same.

_________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

Administrative law - burden of proof

Victory Support Services v. DPW - Cmwlth. Court - June 27, 2012 - unpublished memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/1849CD11_6-27-12.pdf

The burden of proof at an initial hearing on an agency’s order is on the agency to justify its action. See B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649 (Pa. Cmwlth. 2012); S. Hills Health Sys. v. Dep’t of Pub. Welfare, 510 A.2d 934 (Pa. Cmwlth. 1986) (the party asserting the existence of certain facts bears the burden of proving them).

________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

Welfare - adultBasic - Tobacco Settlement Agreement - Pa. Constitution, etc.

Sears. v. Corbett - Cmwlth. Court - June 27, 2012 (en banc 5-2)

http://www.pacourts.us/OpPosting/Cwealth/out/121MD11_6-27-12.pdf

Suit to compel state to allocate monies, as per Tobacco Settlement Agreement, that would maintain adultBasic program.

On defendants' preliminary objections, the court held that

* sovereign immunity - Suits which seek to restrain state officials from performing affirmative acts are not within the rule of immunity - POs overruled

* unlawful redirection of Master Settlement Agreement funds - "If these monies had not been redirected, it appears that there would have been sufficient funding for adultBasic in 2011. Thus, Respondents’ preliminary objection in this regard must be overruled.

* Pa. Constitution, Article I, sec. 3 - single subject rule - The statute deals with "multiple diverse subjects" - possible violation of single subject rule - POs overruled

* legislative power vested in General Assembly - petitioners' claim under this section held to be justiciable

* standing - Preliminary objection that, to the extent that their second amended petition for review challenges any provisions of the Fiscal Code amendments unrelated to adultBasic, Petitioners lack standing upheld by court

* class action - court cannot rule on propriety of a class action until the close of the pleadings

UC - drug testing

unreported drug testing case - Cmwlth Court June 20, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/2223CD11_6-20-12.pdf

Some language from the opinion

We rejected the argument that a medical review officer was necessary to admit drug testing results in Turner v. Unemployment Compensation Board of Review, 899 A.2d 381 (Pa. Cmwlth. 2006). In this case, this Court re-emphasized our earlier determinations that:

[I]t is not essential to produce either the person who made the entries or the custodian of the record at the time the entries were made or that the witness qualifying the business records even has personal knowledge of the facts reported in the business record. As long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness of the business records of a company, a sufficient basis is provided to offset the hearsay character of the evidence. Id., at 386 (quoting Business Records as Evidence Act, 42 Pa. C.S. §6108(b)).

Welfare - MA - assets - special needs trust

Lewis v. Alexander - 3d Cir. - June 20, 2012

http://www.ca3.uscourts.gov/opinarch/113439p.pdf

The court concluded that Plaintiffs‟ case is justiciable and that they have a private right of action under both Section 1983 and the Supremacy Clause of the Constitution.

On the merits of Plaintiff's challenge, it decided that the District Court was correct in its determination that the 50% repayment provision of 62 P.S. 1414, "special needs" provision, expenditure provision, and age restriction are all preempted by federal law.

However, it decided that the enforcement provision of Section 1414 – when used to enforce provisions not otherwise preempted by federal law – is a reasonable exercise of the Commonwealth's retained authority to regulate trusts.

Affirmed in part and reversed in part.

abuse - expungement - late appeal - notice of right to appeal

K.G. v. DPW - Cmwlth. Court - June 15, 2012 - unreported memorandum decision (2-1, Levitt dissenting)


http://www.pacourts.us/OpPosting/Cwealth/out/1001CD11_6-15-12.pdf

Appeal of alleged perpetrator of abuse -- a nursing student -- was not permitted to be filed nunc pro tunc.

CYF denied K.G.’s request for appeal of a report of abuse, announced in a letter dated September 18, 2009, which advised K.G. that she had the right to a hearing before the Secretary of DPW. K.G. did not request a hearing until March 5, 2010, when she submitted her request by fax.

The court (2-1) rejected K.G.'s claims that(1) the September 18, 2009 decision provided insufficient notice of her appeal rights; (2) the time it took K.G. to obtain counsel; and (3) the confusion she claimed the Department’s January 26, 2006 letter (concerning a report of abuse against her husband) created by indicating that the report of child abuse identified in the husband's case was unfounded, after the alleged victim -- K.G.'s stepdaughter -- had recanted the claim of abuse by K.G.'s husband - the alleged victim's father.

Dissent - The dissent argued that the notice to K.G. was confusing, and that and "indicated report of child abuse implicates due process because this report can destroy the alleged perpetrator's ability to make a living in some lines of work. When so much is at stake, the government‟s notice to a lay citizen about how to pursue an appeal of such a report must be clear and unequivocal." The dissent said that language in the DPW letter telling K.G.

If it is your desire to have a hearing, please submit your request in writing within 45 days of the date of this letter to Child Abuse Appeals at the above address. Please include a telephone number where you can be contacted. [emphasis added]

K.G. apparently understood this letter to mean that the Department of Public Welfare was requesting, not demanding, a written appeal in 45 days that included her phone number. She did not understand the 45 days to be mandatory. Stated otherwise, she believed she could appeal by some other means or timetable, to be determined by when she conceived a "desire to have a hearing." "Please" is not a synonym for "must," as argued by Wayne County Children and Youth Services.

The dissent rejected the argument that DPW's politeness in adding the word "please" to the imperative "submit" should be encouraged. It agree that politeness is desirable, but not at the expense of clarity. Had the Department's notice also warned K.G. of the consequence of not finding it pleasing to submit a written request for a hearing in 45 days, its notice would have been satisfactory.

The dissent contains an lengthly discussing of the word "please" and stresses that K.G., will be denied the right to be a nurse by the rejection of her appeal.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

open records - (im)proper addressee, (im)proper procedures not decisive

Pennsylvania Gaming Control Board v. Office of Open Records - Cmwlth. Court - June 11, 2012 (4-3)


http://www.pacourts.us/OpPosting/Cwealth/out/1134CD09_6-11-12.pdf

A written request for records sent to the wrong person in an agency must be forwarded to the agency's open-records officer.

If a written request does not comply with an agency’s policy for such requests, the open-records officer in the agency must so notify the requester of this fact so that the requester can resubmit the request.

debt collection - misleading - credit bureau v. debt collector

Durr v. Rochester Credit Center - ED Pa. - June 4, 2012

http://www.paed.uscourts.gov/documents/opinions/12D0564P.pdf

A collection letter that reads: "The CREDIT BUREAU Collection Division" and ends, at the bottom:: “**THIS IS AN ATTEMPT TO COLLECT A DEBT BY A DEBT COLLECTOR AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE” may violate the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Defendant's motion for summary judgment denied.

With respect to the general claim that the letter was deceptive because it suggested a credit reporting agency was involved in the collection effort, whether or not a collection letter creates a misleading impression is judged from the perspective of the “least sophisticated consumer.” Brown v. Card Services Ctr., 464 F.3d 450, 453 (3d Cir. 2006).

If a letter “can be reasonably read to have two or more meanings, one of which is inaccurate,” and misleading it is deceptive. Rosenau v. Unifund, 539 F.3d 218, 222 (3d Cir. 2008).

Here, the evidence viewed in the light most favorable to the non-moving party, is that the letter in question is equally susceptible to different interpretations, one of which is at odds with the other.

With respect to the more specific claim that the letter suggests that a consumer reporting agency is involved with the collection of the debt, a genuine issue of material fact exists.

MA - undocumented aliens - emergency medical condition - acute symptoms

Spring Creek Management v. DPW - Cmwlth. Court - June 8, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/2162CD11_6-8-12.pdf

This case presents an issue of first impression for this Court: under what circumstances does an emergency medical condition continue, and when does the emergency end, such that an undocumented alien‟s treatment is no longer eligible for MA pursuant to federal and state law, 55 Pa. Code § 150.11 and Section 1396b(v) of title XIX of the Social Security Act (SSA), 42 U.S.C. § 1396b(v).

The patient in this case suffered a stroke in June 2010, for which she was hospitalized until September 2010. On September 16, 2010, she entered Spring Creek and, on September 29, 2010, Spring Creek submitted, on her behalf, an application for MA/LTC benefits to the CAO. The CAO requested proof of her ‟emergency medical condition" and Spring Creek sent the CAO additional documentation. By notice mailed April 13, 2011, the CAO denied the requested MA/LTC benefits because it determined that no emergency medical condition existed and, therefore, the patient was ineligible for assistance. Spring Creek timely appealed to the Bureau of Hearings and Appeals (BHA), and the ALJ held a hearing, after which he upheld the CAO decision.

After considering the arguments, the plain language of Section 150.11 of the Department‟s regulations and Section 1396b(v) of the SSA, and the existing case law interpreting Section 1396b(v), we, like the other courts that have addressed this issue, believe we must focus on the term "acute." The plain language of Section 1396b(v), which Section 150.11 mirrors, requires an emergency medical condition to manifest itself through acute symptoms, which is defined as "characterized by sharpness or severity . . . having a sudden onset, sharp rise, and short course . . . [as] opposed to chronic.‟

To meet the standard the emergency medical condition must manifest itself through acute symptoms, and the treatment for the emergency medical condition must be immediately necessary to prevent the three statutory outcomes. Here, the Clinical Director testified that the patient suffers from an "aggregate of very severe chronic conditions" and acknowledged that "treatment and care would be for an indefinite period of time. A review of the record reveals that there is no evidence to support the conclusion that the patient is manifesting acute symptoms thereby rendering her condition an emergency medical condition for which she would be eligible for MA/LTC benefits. The fact that, without the treatment she receives , the patient "might [suffer] one of the three adverse consequences listed [in] the statute," Scottsdale, 75 P.3d at 97, does not alter the fact that W.T. currently is not suffering from an emergency medical condition that, without immediate attention, would lead to one of the adverse consequences set forth in Section 150.11 and Section 1396b(v). The "focus must be on the patient‟s current condition and whether that condition satisfies the criteria" of emergency medical condition.



In addition, the court held that, the provisions for ongoing care set forth in the Operations Memo do not mandate that the patient be found eligible for MA/LTC benefits for ongoing treatment for the results of her stroke. The Operations Memo refers to eligibility requirements "if there is a need for emergency medical services involving ongoing treatment."



Before making this case-by-case determination, the following information must be advanced to a CAO: "the nature of the emergency medical condition"; "[t]hat the medical treatment was necessary because of the emergency condition"; and "[t]he approximate duration of the emergency (this includes a treatment plan)." All of these requirements are predicated on the existence of an emergency medical condition for which ongoing treatment is necessary. Here, as stated above, the provider failed to establish that the patient currently is suffering from an emergency medical condition and, therefore, the ongoing treatment provisions explained in the Operations Memo are not applicable.

Equal Protection - U.S. Supreme Court decision - rational basis

Armour v. City of Indianapolis - US Supreme Court - June 4, 2012

http://wwwsupremecourt.gov/opinions/11pdf/11-161.pdf  (24 pp.)

SUPREME COURT OF THE UNITED STATES

ARMOUR ET AL. v. CITY OF INDIANAPOLIS, INDIANA, ET AL.
CERTIORARI TO THE SUPREME COURT OF INDIANA
No. 11–161. Argued February 29, 2012—Decided June 4, 2012

For decades, Indianapolis (City) funded sewer projects using Indiana’s Barrett Law, which permitted cities to apportion a public improvement project’s costs equally among all abutting lots. Under that system, a city would create an initial assessment, dividing the total estimated cost by the number of lots and making any necessary adjustments. Upon a project’s completion, the city would issue a final lot-by-lot assessment. Lot owners could elect to pay the assessment in a lump sum or over time in installments. After the City completed the Brisbane/Manning Sanitary Sewers Project, it sent affected homeowners formal notice of their payment obligations. Of the 180 affected homeowners, 38 elected to pay the lump sum. The following year, the City abandoned Barrett Law financing and adopted the Septic Tank Elimination Program (STEP),which financed projects in part through bonds, thereby lowering individual owner’s sewer-connection costs. In implementing STEP, the City’s Board of Public Works enacted a resolution forgiving all assessment amounts still owed pursuant to Barrett Law financing. Homeowners who had paid the Brisbane/Manning Project lump sum received no refund, while homeowners who had elected to pay in installments were under no obligation to make further payments. The 38 homeowners who paid the lump sum asked the City for a refund, but the City denied the request. Thirty-one of these homeowners brought suit in Indiana state court claiming, in relevant part, that the City’s refusal violated the Federal Equal Protection Clause.The trial court granted summary judgment to the homeowners, and the State Court of Appeals affirmed. The Indiana Supreme Court reversed, holding that the City’s distinction between those who had already paid and those who had not was rationally related to its legitimate interests in reducing administrative costs, providing financial hardship relief to homeowners, transitioning from the Barrett Law system to STEP, and preserving its limited resources.

Held: The City had a rational basis for its distinction and thus did not violate the Equal Protection Clause. Pp. 6–14.

(a) The City’s classification does not involve a fundamental right or suspect classification. See Heller v. Doe, 509 U. S. 312, 319–320. Its subject matter is local, economic, social, and commercial. See United States v. Carolene Products Co., 304 U. S. 144, 152. It is a tax classification. See Regan v. Taxation With Representation of Wash., 461



U. S. 540, 547. And no one claims that the City has discriminated against out-of-state commerce or new residents. Cf. Hooper v. Bernalillo County Assessor, 472 U. S. 612. Hence, the City’s distinction does not violate the Equal Protection Clause as long as "there is any reasonably conceivable state of facts that could provide a rational basis for the classification," FCC v. Beach Communications, Inc., 508 U. S. 307, 313, and the " ‘burden is on the one attacking the [classification] to negative every conceivable basis which might support it,’ " Heller, supra, at 320. Pp. 6–7.

(b) Administrative concerns can ordinarily justify a tax-related distinction, see, e.g., Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 511–512, and the City’s decision to stop collecting outstanding Barrett Law debts finds rational support in the City’s administrative concerns. After the City switched to the STEP system, any decision to continue Barrett Law debt collection could have proved complex and expensive. It would have meant maintaining an administrative system for years to come to collect debts arising out of 20-plus different construction projects built over the course of a decade, involving monthly payments as low as $25 per household, with the possible need to maintain credibility by tracking down defaulting debtors and bringing legal action. The rationality of the City’s distinction draws further support from the nature of the line-drawing choices that confronted it. To have added refunds to forgiveness would have meant adding further administrative costs, namely the cost of processing refunds. And limiting refunds only to Brisbane/Manning homeowners would have led to complaints of unfairness, while expanding refunds to the apparently thousands of other Barrett Law project homeowners would have involved an even greater administrative burden. Finally, the rationality of the distinction draws support from the fact that the line that the City drew—distinguishing past payments from future obligations—is well known to the law. See, e.g., 26 U. S. C. §108(a)(1)(E). Pp. 7–10.

(c) Petitioners’ contrary arguments are unpersuasive. Whether financial hardship is a factor supporting rationality need not be considered here, since the City’s administrative concerns are sufficient to show a rational basis for its distinction. Petitioners propose other forgiveness systems that they argue are superior to the City’s system,but the Constitution only requires that the line actually drawn by the City be rational. Petitioners further argue that administrative considerations alone should not justify a tax distinction lest a city justify an unfair system through insubstantial administrative considerations. Here it was rational for the City to draw a line that avoided the administrative burden of both collecting and paying out small sums for years to come. Petitioners have not shown that the administrative concerns are too insubstantial to justify the classification. Finally, petitioners argue that precedent makes it more difficult for the City to show a rational basis, but the cases to which they refer involve discrimination based on residence or length of residence. The one exception, Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336, is distinguishable. Pp. 10–14.

946 N. E. 2d 553, affirmed.

BREYER, J., delivered the opinion of the Court, in which KENNEDY,

THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA and ALITO, JJ., joined.

UC - late appeal - two contrary determinations in the same envelope

Martilla v. UCBR - Cmwlth. Court - May 31, 2012 - unpublished memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/2185CD11_5-31-12.pdf

Claimant's late appeal could not be considered nunc pro tunc, since there was no breakdown in the administrative system under the fact of the case.

Claimant filed an application for benefits. The UC Service Center issued two Notices of Determination, both of which were in the same envelope: the first indicated that Claimant was eligible for benefits under Section 402(e) because he was not discharged for willful misconduct, but the second indicated that he was ineligible under Section 402(h) due to engaging in self-employment.

Claimant, however, only saw the determination finding him eligible under 402(e) and did not take out the other documents in the envelope until several weeks later, when he noticed that he was not getting UC benefits, at which time he filed an appeal.

The court said

Claimant does not demonstrate how receiving two notices in the same envelope – one which found him eligible for benefits and one which found him ineligible – amounts to an administrative breakdown. Because he admits that he received the determination finding him ineligible for benefits under Section 402(h) of the Law, Claimant was not misled by the Service Center, but only by his own failure to read all documents sent to him. Additionally, as the Referee pointed out, while Claimant received confirmation notices after he submitted his bi-weekly claims, these notices were nothing more than a confirmation that the claim had been received, not a notification that Claimant would be paid. Claimant’s subjective belief, coupled with his failure to monitor whether he was actually receiving the money, does not amount to an administrative breakdown.

Claimant also argues that he should be allowed to file his claim late because he did not act negligently in failing to timely file his appeal. However, the Board properly determined that Claimant was negligent in failing to read all documents in the envelope from the Service Center and in failing to monitor his bank account for several months. Claimant’s appeal was, therefore, properly dismissed as untimely.

_______________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

non-conviction arrest record - expungement - detailed disposition record - right to hearing

Commonwealth v. Wallace - Superior Court - May 25, 2012


http://www.pacourts.us/OpPosting/Superior/out/s39010_11.pdf

There is a long-standing right in this Commonwealth to petition for expungement of a criminal arrest record, a right that is adjunct of due process. Carlacci v. Mazaleski, [798 A.2d 186, 188 (Pa. 2002). . . . Judicial analysis and evaluation of a petition to expunge depend upon the manner of disposition of the charges against the petitioner.

When an individual has been convicted of the offenses charged, then expungement of criminal history records may be granted only under very limited circumstances that are set forth by statute. 18 Pa.C.S. § 9122; Hunt v. Pennsylvania State Police, 604 Pa. 156, 983 A.2d 627, 633 (2009).

When a petitioner has been tried and acquitted of the offenses charged, we have held that the petitioner is “automatically entitled to the expungement of his arrest record.” Commonwealth v. D.M., 548 Pa. 131, 695 A.2d 770, 772-73 (1997).

When a prosecution has been terminated without conviction or acquittal, for reasons such as nolle prosse of the charges or the defendant’s successful completion of an accelerated rehabilitative disposition program (“ARD”), then the trial court must “balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records.” Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa.1981)

To aid courts in applying the balancing test for expungement, the Wexler Court adopted the following nonexhaustive list of factors that the court should consider: These factors include [1] the strength of the Commonwealth’s case against the petitioner, [2] the reasons the Commonwealth gives for wishing to retain the records, [3] the petitioner’s age, criminal record, and employment history, [4] the length of time that has elapsed between the arrest and the petition to expunge, and [5] the specific adverse consequences the petitioner may endure should expunction be denied. Wexler, supra at 879 (citation omitted).

In applying the balancing test and considering the above factors, the court must analyze the particular, specific facts of the case before it. Id. at 880-81. The mere assertion by the Commonwealth of a general interest in maintaining accurate records of those accused of a crime does not outweigh an individual’s specific, substantial interest in clearing his or her record. Id. at 881-82. Commonwealth v. Moto, ___ Pa. ___, ___, 23 A.3d 989, 993-994 (2011).

Here, the official record in this matter consists of six incomplete, disorganized parts and appears to cover 19 arrests, 37 criminal action numbers, and approximately 228 charges as of May 10, 2010. As of that date, we estimate that the charges had terminated in four guilty pleas, four convictions, sixteen acquittals, five sustained demurrers, fourteen withdrawals, fifty-three dismissals, forty-four nolle prosequi, three transfers to family court, thirty transfers to juvenile division, and fifty-five held for court. The record does not indicate whether the nolle prossed and

withdrawn charges were based upon a lack of evidentiary support or whether the charges were dropped in exchange for a plea. Moreover, the record does not indicate why some charges were dismissed. Yet, the Commonwealth argues generally - and the trial court agrees - that none of the records should be expunged in light of Appellant’s extensive criminal record and the possibility that he might reoffend.

Substantively, and depending on the circumstances surrounding their termination, some of Appellant’s non-conviction arrest records may be eligible for expungement under the laws of Pennsylvania. However, we cannot make that determination based on the record at hand. Therefore, we remand to the trial court for “a clarification of the record as much as a clarification of the reasons for the trial court decision.” Roland, 871 A.2d at 222. Toward that purpose, “we cannot suggest strongly enough that all parties provide a comprehensive list of each criminal action number in question with the disposition of each charge contained therein.” Id. The trial court should then apply the Wexler factors, balancing Appellant’s right to be free from the harm attendant to maintenance of the arrest records against the Commonwealth’s interest in preserving such records, to determine in each particular case whether justice requires expungement. Waughtel, 999 A.2d at 625; A.M.R., 887 A.2d at 1268.

Individuals have the right, as an adjunct to due process, to seek expungement of their criminal records which can be effectuated through a hearing.[…] Punishment of the innocent is the clearest denial of life, liberty and property without due process of law. To remedy such a situation, an individual must be afforded a hearing to present his claim that he is entitled to an expungement - that is, because an innocent individual has a right to be free from unwarranted punishment, a court has the authority to remedy the denial of that right by ordering expungement of the arrest record. Maxwell, 737 A.2d at 1245 (citation omitted); accord Roland, 871 A.2d at 221

Having determined that the record at hand requires supplementation and clarification with regard to the circumstances surrounding Appellant’s non-conviction arrest records, we conclude that a hearing for this purpose is necessary. Accordingly, while making no determination as to whether expungement is warranted, we vacate the orders denying the motions for expungement and remand for a hearing on which non-conviction arrests records, if any, are eligible for application of the Wexler factors, and, based on application of the Wexler factors, which non-conviction arrests records, if any, should be expunged.

UC - voluntary quit - follow-the-spouse - newly-married couple

Pa. Gaming Control Board v. UCBR - Cmwlth. Court - May 23, 2012 (2-1 decision)


http://www.pacourts.us/OpPosting/Cwealth/out/927CD11_5-23-12.pdf

Facts - Claimant was last employed in August 2010, as a full-time administrative assistant for the Pennsylvania Gaming Control Board. She began dating her future spouse in May of 2008. In August of 2008, her future spouse enlisted in the United States Coast Guard, which sent him to Louisiana, where he was stationed and purchased a residence. In May, 2010, the claimant was married to her spouse. In August 2010, the claimant voluntarily resigned her employment to relocate to Louisiana to be with her spouse. The claimant and her spouse had an insurmountable commuting distance. The claimant and her spouse could not afford to maintain two residences.

The court rejected the Employer's argument that the follow-the-spouse rule does not apply at all, because Claimant’s husband relocated to Louisiana before the couple married. Employer’s argument ignored the fact that under Schechter v. UCBR, 491 A.2d 938 (Pa. Cmwlth. 1985), the "follow-the-spouse" doctrine is applicable to a situation where a claimant begins a marriage living apart from a spouse and later moves to be with the spouse, provided that necessitous and compelling reasons otherwise exist for the move. In such an instance, whether a spouse relocated prior to the marriage is irrelevant to the analysis. Here, it is similarly irrelevant that Claimant’s spouse relocated at a time prior to the couple’s marriage.

The Court also held that claimant showed a nececessitous and compelling reason to locate, under the Schlecter analysis. She showed an economic hardship, an insurmountable commuting distance, and that the move was for reasons beyond mere personal choice. Thus, although Claimant was not required to establish that her spouse’s relocation was beyond her control, she, nevertheless, still was required to and did establish that her own relocation to Louisiana following her marriage was for necessitous and compelling reasons and not merely due to personal preference.

The Board specifically found that an "insurmountable commuting distance" existed, the couple "could not afford to maintain two residences" (as Claimant was not maintaining a residence while she lived in Pennsylvania with her parents), and that Claimant’s spouse "was relocated by the United States Coast Guard to Louisiana where he was currently stationed and purchased a residence." Although Claimant’s testimony reveals that her decision to relocate to where her husband was currently stationed involved some personal preference, Claimant’s testimony revealed that the other factors identified above (i.e., economic hardship and insurmountable commuting distance) also played a role in her decision. Based upon those factors, it is apparent that Claimant acted reasonably and with good faith in making her decision to relocate. The Board, therefore, did not err in concluding that cause of a necessitous and compelling nature existed for Claimant to voluntarily terminate her employment.

consumer - UDAP - deceptive or misleading conduct v. fraud - pleading

Bennett v. A.P. Masterpiece Homes - Superior Court - March 6, 2012


http://www.pacourts.us/OpPosting/Superior/out/a03006_12.pdf

Held: Plaintiff in a consumer protection case alleging misleading or deceptive conduct need not plead or prove elements of common law fraud, reversing a line of contrary Superior Court decisions.

The UTPCPL provides a private right of action for anyone who “suffers any ascertainable loss of money or property” as a result of an unlawful method, act or practice. 73 P.S. § 201-9.2(a).

Section 201-2(4) lists twenty enumerated practices which constitute actionable “unfair methods of competition” or “unfair or deceptive acts or practices.” 73 P.S. § 201-2(4)(i)-(xx). The UTPCPL also contains a catchall provision at 73 P.S. § 201-2(4)(xxi).

The pre-1996 catchall provision prohibited “fraudulent conduct” that created a likelihood of confusion or misunderstanding. 73 P.S. § 201-2(4)(xvii). In 1996, the General Assembly amended the UTPCPL and revised Section 201-2(4)(xxi) to add “deceptive conduct” as a prohibited practice. Act of Dec. 4, 1996, P.L. 906, No. 146, § 1 (effective Feb. 2, 1997). The current catchall provision proscribes “fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi) (emphasis added).

Under this "catchall" provision, a plaintiff does not need to allege or prove common law fraud. The court rejected its own decisions which continued to apply pre-amendment law that required pleading and proving the element of fraud, such as. Ross v. Foremost Ins. Co., 998 A.2d 648 (Pa.Super. 2010) (stating catchall section requires proof of common law fraud); Colaizzi v. Beck, 895 A.2d 36 (Pa.Super. 2006) (stating same); Booze v. Allstate Ins. Co., 750 A.2d 877 (Pa.Super. 2000), appeal denied, 564 Pa. 722, 766 A.2d 1242 (2000) (stating same); Skurnowicz v. Lucci, 798 A.2d 788 (Pa.Super. 2002) . Despite the addition of language regarding deceptive conduct, these post-amendment cases do not discuss the 1996 amendment in any detail, or consider what effect it might have on the catchall provision.

Commonwealth Court decisions - The Superior Court adopted the holding in the contrary line of case from Commonwealth Court. See, e.g., Commonwealth v. Percudani, 825 A.2d 743, 746-47 (Pa.Cmwlth. 2003) (holding 1996 Amendment to Section 201-2(4)(xxi) provides liability for deceptive conduct). These cases view the 1996 addition of “deceptive conduct” as substantively altering the catchall provision and allowing for liability based on the less restrictive standard of “deceptive conduct.” Com. ex rel. Corbett v. Manson, 903 A.2d 69, 74 (Pa.Cmwlth. 2006) (permitting catchall liability for deceptive conduct and rejecting Superior Court’s continued interpretation of Section 201-2(4)(xxi) as requiring proof of common law fraud). See also Com. v. TAP Pharmaceutical Products, Inc., ___ A.3d ___, 2011 WL 4056170 (Pa.Cmwlth. 2011) (stating Commonwealth Court has adopted “deceptive” standard under post-amendment catchall section of UTPCPL because language of 1996 amendment signaled approval of less restrictive pleading requirements); Pennsylvania Dept. of Banking v. NCAS of Delaware, LLC, 995 A.2d 422, 433 n.28 (Pa.Cmwlth. 2010) (applying “deceptive” standard for catchall provision and outlining split in interpretations of statute by Commonwealth and Superior Courts). In rejecting this Court’s postamendment interpretation of the catchall provision, the Commonwealth Court found Skurnowicz inapplicable to post-amendment cases because Skurnowicz did not acknowledge the 1996 amendment and relied on preamendment case law to hold the catchall section required proof of common law fraud.

Federal court decisions - Most Pennsylvania federal courts similarly concluded the 1996 amendment lessened the degree of proof required under the UTPCPL catchall provision. See Schnell v. Bank of New York Mellon, ___ F.Supp.2d ___, 2011 WL 5865966 (E.D.Pa. Nov. 22, 2011) (stating deceptive conduct is sufficient to satisfy catchall provision); Vassalotti v. Wells Fargo Bank, N.A., 732 F.Supp.2d 503, 510 n.7 (E.D.Pa. 2010) ; Wilson v. Parisi, 549 F.Supp.2d 637 (M.D.Pa. 2008); Chiles v. Ameriquest Mortg. Co., 551 F.Supp.2d 393, 398-99 (E.D.Pa. 2008). Like the Commonwealth Court, the federal courts examining this issue were persuaded by the revised statutory language of the catchall provision and our Supreme Court’s directive to read the UTPCPL broadly. Seldon v. Home Loan Services, Inc., 647 F.Supp.2d 451, 469 (E.D.Pa. 2009). Accord Genter v. Allstate Property and Cas. Ins. Co., 2011 WL 2533075 (W.D.Pa. June 24, 2011); Haines v. State Auto Property and Cas. Ins. Co., 2009 WL 1767534 (E.D.Pa. June 22, 2009); Flores v. Shapiro & Kreisman, 246 F.Supp.2d 427 (E.D.Pa. 2002); In re Patterson, 263 B.R. 82 (Bankr.E.D.Pa. 2001). Federal court generally declined to follow the Superior Court’s post-Amendment precedent because the Superior Court cases relied on pre-amendment interpretations of the catchall section without acknowledging the 1996 amendment. Seldon, supra at 469; Cohen v. Chicago Title Ins. Co., 242 F.R.D. 295 (E.D.Pa. 2007) (rejecting post-amendment cases from Superior Court because they rely on authority that interpreted preamendment catchall provision).

tax sale - "proof of mailing"

Horton v. Washington Co. Tax Claim Bureau - Cmwlth. Court - May 21, 2012


http://www.pacourts.us/OpPosting/Cwealth/out/75CD11_5-21-12.pdf

Section 602 of the Real Estate Tax Sale Law, 72 P.S. §5860.602(e)(2), requires that notice of a scheduled tax sale be provided by three separate methods: publication at least thirty days prior to sale; notification by certified mail at least thirty days prior to sale; and posting on the property at least ten days prior to sale. 72 P.S. §5860.602(a), (e).

With respect to the notice by certified mail, the statute also states that if a return receipt is not received from the property owner, "then, at least ten (10) days before the date of the sale, similar notice of the sale shall be given to each owner who failed to acknowledge the first notice by United States first class mail, proof of mailing, at his last known post office address…." Section 602(e)(2) of the Law, 72 P.S. §5850.602(e)(2) (emphasis added).

Consistent with the decision in In Re: York County Tax Claim Bureau Donalynn Properties, Inc. v. York County Tax Claim Bureau, 3 A.3d 765 (Pa. Cmwlth. 2010), the court held that the "proof of mailing" requirement in section 602(e)(2) of the Law can only be satisfied by the use of a USPS certificate of mailing, also known as USPS Form 3817.

The holding in York County is based on

- the statutory language in the context of the Law’s other notice provisions. The Court observed that all other types of mailing specified in the statute are USPS services and that the phrase "proof of mailing" immediately follows "United States first class mail," which is exclusively USPS terminology. Based on the plain language alone, the Court concluded that the legislature intended "proof of mailing" to mean a USPS form and determined that the only official record providing that proof was a USPS certificate of mailing.

- a need for statewide uniformity with respect to the ten-day notice, which is the final notice sent to a property owner before a tax upset sale.

- the minimal burden that requiring a USPS certificate of mailing imposes on county tax bureaus.

Right to Counsel - Statute of 11 Henry VII - article

A new article explores the possibility of civil right to counsel arguments based on the incorporation of English common law that provided for a right to counsel. It's Taking the English Right to Counsel Seriously in American 'Civil Gideon' Litigation, 45 U. Mich. J.L. Reform 635 (2012), available at http://ssrn.com/abstract=1753407

There is a lot in the article about the Statute of 11 Henry VII, c. 12, which also includes a right to proceed in forma pauperis. The Statute says

[E]very poor person or persons which have & hereafter shall have cause of action or actions against any person or persons within the realm shall have, by the discretion of the Chancellor of this realm, for the time being writ or writs original and writs of subpoena according to the nature of their causes, therefore nothing paying to your Highness for the seals of the same, . . . [a]nd that the said Chancellor for the same time being shall assign . . . Counsel learned by their discretions which shall give their Counsels nothing taking for the same, and in like wise the same Justices shall appoint attorney and attorneys for the same poor person or persons and all other officers requisite and necessary to be had for the speed of the said suits to be had and made which shall do their duties without any rewards for their Counsels, help, and business in the same . . .

The Statute of 11 Henry VII is incorporated into the law of Pennsylvania by virtue of Pa. C.S. § 1503(a). The Statute is cited in a number of Pennsylvania cases, including Thompson v. Garden Court, Inc., 419 A.2d 1238 (Pa. Super. 1980), where the court said

“Indulgence toward poor persons in bringing their actions has existed from an early period . . . .” 15 Stand.Pa.Prac.-Costs s 125 at 681 (1965). Under the Statute of 11 Henry VII, c. 12 (1494),

(E)very poor person or persons, which have, or hereafter shall have cause of action or actions against any person or persons within this realm, have, by the discretion of the Chancellor of this realm for the time being, writ or writs original, and writs of subpoena, according to the nature of their causes, therefore nothing paying to your Highness for the seals of the same, nor to any person for the writing of the same writ or writs to be hereafter sued; . . .“

This statute is part of the common law of Pennsylvania, Report of the Judges, 3 Binn. 593, 617 (1808); 1 Pa.C.S.A. s 1503 (1964-78 Pamphlet), and provides relief from filing fees and court costs to in-digent persons in the commencement and prosecution of civil actions. Mitek v. Ste-Mel Signs, Inc., 222 Pa.Super. 395, 294 A.2d 813 (1973); 3 Goodrich-Amram 2d s 1137:1 at 427 n. 8.

See also, Madden v. City of York, 59 Pa. D. & C. 2d 367, 369-70 (Ct. Com. Pl. 1972) and Mitek v. Ste-Mel Signs, 294 A.2d 813 (Pa. Super. 1972) (cited in Davila v. Soto, 378 A.2d 443 (Pa. Super 1977); Zerr v. Scott, 39 Pa. C & C 3d 459 (CP Berks 1985); In re Community Legal Services, 43 Pa. D & C 2d 51 (CP Phila. 1967).