tax sale - redemption - residential v. commercial purpose

Lamm v. Fisher - Superior Court - July 19, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s31032_06.pdf

The court rejected the petition for redemption, under the Municipal Claims and Tax Liens Law, 53 P.S. 7293, of a person whose property was sold at a sheriff's sale, because the property was used for a commercial rather than residential purpose. The act "is unambiguous and limits redeption to a non-vacant property occupied as a residence."

Pennsylvania Bulletin of July 22, 2006

The link http://www.pabulletin.com/secure/data/vol36/36-29/index.html

- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-29/1261.html

- Rules of Civil Procedure - Rule 204.1 - Pleadings and Other Papers - Format
http://www.pabulletin.com/secure/data/vol36/36-29/1264.html

- Minor Court Rules - PFAs - Older Adult Protective Services Act
http://www.pabulletin.com/secure/data/vol36/36-29/1266.html

- "manufactured homes" - installation pgm - training curric. - bldg. code officials
http://www.pabulletin.com/secure/data/vol36/36-29/1282.html

- sign language interpreters and transliterators - registration - Labor & Industry - Office of Deaf & Hard of Hearing
http://www.pabulletin.com/secure/data/vol36/36-29/1274.html

- DPW - department reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1274.html

- Labor and Industry - department reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1277.html

- Dept. of Health - reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1276.html

consumer protection - liability of corporate officer

Commonwealth v. Manson - Commonwealth Court - July 10, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1710CD05_7-10-06.pdf

The CEO/lead investor of a company was individually liable for consumer protection law (CPL) violations where the evidence with the he had participated, taken part, and cooperated in conduct which was fraudulent or deceptive and likely to create confusion or misunderstanding, under sec. 2(4)(xxi) of the CPL, 73 P.S. sec. 201-2(4)(xxi).

"Pennsylvania law recognizes the participation theory as a basis for liability" in such a situation. "Liability under this theory attaches only where the corporate officer is an actor who participates in the wrongful actions; thus, corporate officers may be held liable for misfeasance...[but not] for mere nonfeasance."

Concerning deceptive conduct, the court said that the question was not whether the wrongful conduct was intended to deceive the consumer but rather whether person "engaged in conduct that might be 'deceptive to the ordinary consumer'" -- a lesser wrong that fraudulent conduct.

The company in question was Unclaimed Freight Company, LLC. The wrongful conduct was in taking orders for merchandise and receiving payments from consumers, when the company and its CEO "knew or should have known that the merchandise would not be delivered to those consumers...Unclaimed Freight provide neither furniture nor refunds...."

Pennsylvania Bulletin of July 15, 2006

The link http://www.pabulletin.com/secure/data/vol36/36-28/index.html

- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-28/1307.html
http://www.pabulletin.com/secure/data/vol36/36-28/1308.html

- Commonwealth Court - internal operating procedures - citing unreported decisions
http://www.pabulletin.com/secure/data/vol36/36-28/1310.html

- welfare - "designated exceptional durable medical equipment"
http://www.pabulletin.com/secure/data/vol36/36-28/1352.html

- insurance - credit life and credit accident/health insurance - amended regs
http://www.pabulletin.com/secure/data/vol36/36-28/1321.html

criminal record history - accuracy - proper defendant

Dunbar v. Pennsylvania State Police

http://tinyurl.com/lvygk

The Pennsylvania State Police -- not the Department of Corrections -- are the proper party defendant in challenges the accuracy of criminal history record, pursuant to 18 Pa. CS 9151, part of the Criminal History Record Information Act, 18 Pa. CS 9101 - 9183.

UC - available for work - alien worker - expired work authorization

Jimoh v. UCBR - Commonwealth Court - July 6, 2006

http://tinyurl.com/opvpg

UC claimant's arguments in his brief were waived where they were not included in his Petition for Review.

In n. 7, the court said in dictum that the claimant would not have prevailed even if the court had considered the issues which he had waived. Claimant was an alien worker whose work authorization had expired. The court said that under such circumstances, he was not available for work under sec. 401(d) of the UC Law, 43 PS 801(d).

admin. law - appeal - petition for review - issues - waiver

Jimoh v. UCBR - Commonwealth Court - July 6, 2006

http://tinyurl.com/opvpg

UC claimant's arguments in his brief were waived where they were not included in his Petition for Review.

Pennsylvania Bulletin of July 8, 2006

The link:
www.pabulletin.com/secure/data/vol36/36-27/index.html

recent statutes
www.pabulletin.com/secure/data/vol36/36-27/1259.html

proposed rules - judgments - execution/attachment-exempt property
comments due Aug. 31, 2006 This proposed rule would prevent attachment of exempt monies - including social security, veterans benefits, various pensions, etc -- which have been electronically deposited into bank accounts
www.pabulletin.com/secure/data/vol36/36-27/1261.html

welfare - licensure/approval appeal procedure www.pabulletin.com/secure/data/vol36/36-27/1268.html

employment - Title VII - verification of charge

Buck v. Hampton Township School District - 3d Circuit - June 30, 2006

http://www.ca3.uscourts.gov/opinarch/052373p.pdf

Although Title VII, 42 USC 2000e-5, and supporting regulations, 42 CFR 1601.9, require a plaintiff to verify her charges before her employer gets notice of or must respond to the charge, the verification requirement is not jurisdictional.

In addition, where the employer responds to the merits of the charge before the EEOC -- including a detailed complaint signed by plaintiff's attorney -- without raising the failure of plaintiff herself to verify it and before the EEOC issues a right-to-sue letter, the employer has waived its right to assert that defense in a later federal court proceeding.

The verification requirement is mandatory, a required element of an EEOC charge, but it is not a jurisdictional prerequisite for suit in court, i.e., it does not divest a federal court of jurisdiction. The verification requirement is mean to protect employer's from having to respond to frivolous charges. When an employer files a response on the merits to an unverified charge, he forgoes the protection that the requirement affords.

Pennsylvania Bulletin of July 1, 2006

The link to the index is at http://www.pabulletin.com/secure/data/vol36/36-26/index.html

- DPW - child care - proposed rules - comments due w/in 30 days -- http://www.pabulletin.com/secure/data/vol36/36-26/1206.html
Written comments, suggestions or objections regarding the proposed rulemaking should be made to Robert Frein, Director, Bureau of Subsidized Child Care Services, Office of Child Development, Room 521, Health & Welfare Building, P. O. Box 521, Harrisburg, PA 17105 within 30 calendar days after the date of publication in the Pennsylvania Bulletin. Reference Regulation No. 14-505 when submitting comments.

- Independent Regulatory Review Commissions - actions taken
http://www.pabulletin.com/secure/data/vol36/36-26/1228.html

- agriculture - pesticide disposal program
http://www.pabulletin.com/secure/data/vol36/36-26/1198.html

attachment of exempt monies - proposed rules

The state Civil Procedural Rules Committee has proposed rules to prevent the improper attachment of various exempt monies -- including Social Security, veterans' benefits, etc. -- when the monies have been "deposited electronically on a recurring basis and are identified as being funds that are exempt from execution,levy or attachment under Pennsylvania or federal law."

http://tinyurl.com/qhsg2 - Proposed Recommendation No. 215

The recommended rules resulted from a proposal (attached) submitted in February by an ad hoc group of legal aid advocates throughout the state.

Comments on the proposed rules are due by August 31, 2006.

IFP - Rule 240(c) - use of gross income/legal aid guidelines - appealable order

Amrhein v. Amrhein - Superior Court - June 26, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a11022_06.pdf

Mother/appellant -- who was not reprepresented by a legal aid attorney, so Rule 240(d) did not apply -- failed to order a transcript of a custody hearing, after trial court denied her IFP application without a hearing, based solely on the court's application of the gross income to Neighborhood Legal Services Assn. guidelines.

The court held that the trial court's denial of IFP status was a final appealable order, because it terminated the litigation.

The court rejected the trial court's use of NLSA guidelines, which are based on gross income. "This procedure is in direct conflict with the dictates of Rule 240(c), which requires listing and consideration of "not only gross income but also debts and obligations...." The "rote use of the NLSA guidelines was improper because it failed to consider...[the party's] obligations and monthly espenditures...." The procedure "conflicts with the requirements of the state rule." The court said that the trial court should have focused on whether a person can afford to pay and could not reject allegations in an IFP application without conducting an evidentiary hearing. IFP applications must be considered on case by case basis, as required by the rule.

The court reversed the denial of the IFP and remanded, with directions that the trial court hold an IFP hearing w/in 10 days, consider all of the mother's averments, including "the realities of life expenditures...the unassailable expenses of life...."

admin. law - decision based solely on record evidence

William Penn School District v. Dept. of Education - Commonwealth Court - June 27, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1977CD05_6-27-06.pdf

This case, which involves the alleged overpayment of school lunch funds, includes a statement that "'due process requires that administrative decisions of an adjudicatory nature must be based exclusively on evidence contained in the formal record which has been made known to the parties and which they have had an opportunity to refute," quoting from Mercy Regional Health System v. Dept. of Health, 645 A.2d 924, 928 (Pa. Cmwlth. 1994).

Pennsylvania Bulletin of June 24, 2006

The link http://www.pabulletin.com/secure/data/vol36/36-25/index.html

- Civil Rules - amendment- Rule 236(d) - Notice of Judgment by Prothonotary
http://www.pabulletin.com/secure/data/vol36/36-25/1155.html

- DPW - county nursing facility services
http://www.pabulletin.com/secure/data/vol36/36-25/1194.html

- Community Affairs and Development - Manufactured Housing Improvement Program
standards for installation of new manufactured homes
http://www.pabulletin.com/secure/data/vol36/36-25/1158.html

- county prisons - proposed regs - comments due within 30 days
http://www.pabulletin.com/secure/data/vol36/36-25/1160.html

disability - treating physician - pain - credibility - depression

Franklin v. Barnhart - ED Pa. - June 13, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0730P.pdf

Summary judgment granted to Claimant for closed period of disability of 4+ years to Plaintiff.
inability to do light work -- The ALJ's finding that the claimant (CL) could lift 10 lbs. on sustained basis was not supported by substantial evidence. CL had numerous surgeries to right shoulder but still had significant weakness. Her treating physician of long duration "nowhere" found that she could lift 10 lbs. The ALJ relied on the contrary opinion of a one-time examining physician, whose conclusions were set out only in a check-off box. The court said that the ALJ erred by not giving controlling weight to the treating physician's opinion which reflected expert judgment based on continuing observation over an extended time.

subjective complaints of pain - The ALJ improperly discounted CL's complaint of pain without offering any reasoned basis. The ALJ also erred by not giving "great weight" to the CL's complaints of pain, since they were supported by objective medical evidence. The ALJ decision on pain was not supported by substantial evidence. The record showed "severe pain requiring aggressive pain management."

depression -- ALJ failed to follow Appeals Council prior remand instructions and to give fair consideration to the entire record concerning CL's depression. The ALJ did not consider existing evidence or seek the help of other medical professionals. The ALJ also improperly penalized CL for noting having MH treatment and preferring to stay with her family physician. There was no medical evidence that an MH specialist would have proceeded differently from her family doctor. Moreover, regulations require consideration of a claimant's refusal to see an MH professional, which may have been a result of her depression. And the ALJ again failed to properly credit the opinions of CL's treating physician, improperly preferring, without explanation, the findings in a check-off report of a non-examining state agency psychologist. The 3d Circuit has held such reports to be "weak evidence at best."

special laws - Article III, sec. 32 - class of one

Pa. Turpike Commission v. Attorney General - Supreme Court - June 19, 2006

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-13-2006mo.pdf

A law that was applicable to only a single public employer was held to be a "special law" which violated Article III, sec. 32, of the state constitution

Article III, sec. 32 states that " The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law and specifically the General assembly shall not pass any local or special law" about a list of 8 specific areas, including ones "regulating labor, trade, mining or manufacturing." It also says: "Nor shall the General Assembly indirectly enact any special or local law by the partial repeal of a general law; but laws repealing local or special acts may be passed."

The court held that there was "no rational reason" for the differential treatment established by the statute" and that there was "nothing distinctive" about the two differently-treated entitited that required different treatment. The acts classifications "does not rest upon some ground of difference or any real distinction....." The "narrow classification in the Act....does not bear a reasonable relationship" to the allged statutory purpose. In addition, the act created a class of one, with no reasonable prospect of another members being able to join the class in the future.

debt collection - FDCPA - false threats - attorney letterhead - class certification

McCall v. Drive Financial Services - ED Pa. - June 19,2006

http://www.paed.uscourts.gov/documents/opinions/06D0740P.pdf

The court granted a motion for class certification in a Fair Debt Collection Practices Act, 15 USC 1692 et seq., case in which defendant collection agency was alleged to have sent letters purporting to be from an attorney, on the attorney's ostensible letterhead. The letter threatened suit by the attorney, who is not admitted to practice in Pennsylvania.

Defendant's allegation that there was a conflict between the class and the named plaintiff was dismissed. Named plaintiff had a 15 year-old robbery conviction, which the court said was factually unrelated to his case and to Defendant's alleged violation of the FDCPA.

bankruptcy - "debt relief agency" provisions - standing to challenge

Geisenberger v. Gonzales - ED Pa. - June 19, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0744P.pdf

The court dismissed the constitutional challenge of "practicing bankruptcy attorney" to the "debt relief agency" provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), 11 USC sec. 526-528.

The court held that there was no justiciable case or controversy under Article III, sec. 2, of the US Constitution, since the attorney had not suffered and was not about to suffer an "injury in fact." The court said that the attorney was "requesting an advisory opinion" from the court, which held that without any injury in fact, plaintiff did not have standing to bring the case.

custody - relocation

Ketterer v. Seifert - Superior Court - June 20, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a18024_06.pdf

The court affirmed the trial court's denial of mother's petition to relocated to California with parties' 14 y/o son, despite child's expressed preference for the proposed move. An existing order -- which the court said "has been working well for several years" -- gave mother majority physical custody during the school year and shared custody over the summer. Father's family was mostly in Pennsylvania, and Mother's in California.

The Court focused on the fact that mother failed to prove the first prong of the Gruber test, 583 A2d 434 (Pa. Super. 1990) -- that the moved would "substantially improve the quality of life" for the mother or child. The court specifically rejected mother's primary claim of economic need and the alleged economic benefit that the move would bring.

Noting that the child had a closer relationship with mother than father, the court rejected the child's preference because it was not "based upon good and substantial reasons." The court also mentioned that mother "has had approximately nine different address changes" since her marriage to her current husband 9 years ago.

delay damages - contract action - Pa. R.C.P. 238

Touloumes v. E.S.C., Inc. - Pennsylvania Supreme Court - June 19, 2006

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-183-2004mo.pdf

The court held (5-1) that Pa. R.C.P. 238 does not apply to a contract action seeking to recover damages for injury to property.

The dissent (Newman, J.) http://www.courts.state.pa.us/OpPosting/Supreme/out/J-183-2004do.pdf said that all of the elements of the rule are present, that the rule is "clear and free from all ambiguity" and should apply. The "Majority's exploration of the intent of the Rule was not required because the Rule itself explicity provides that Appellants are entitled to delay damages.

The text of the rule is at http://www.pacode.com/secure/data/231/chapter200/s238.html