UC - late appeal - duty of prompt examination - delay - limited duty of claimant to update address

 

Byrd v. UCBR – Cmwlth. Court  - en banc - February 4, 2021 – unreported memorandum decision**

This case has unusual facts but contains some language that might be generally helpful to claimants.

It involves a 2012 UC claim on which DLI paid > $6k in benefits. However, the worker/appellant denies ever having applied for benefits, since she was working during the relevant time period. There may be an identity theft issue in the case.

In 2017 – five years after the claim was open and paid – the Department sent worker a series of notices that raised quesetions about her eligibility. Worker never respond to the notices, because she did not receive them, having moved a number of times since 2012. She eventually found out about the case when DLI entered a  lien against her. She then appealed that decision, which was rejected as being late.

The court reversed, granting her the right to appeal beyond the legal time limits, because 

1. the Department violated its duty to promptly examine claims, sec. 501 (c), 43 P.S. sec. 821 (c).
2. there was no presumption that the worker received the Department’s notice of determination, given that it was sent to an incorrect address

Duty of prompt examination of UC claims – delay in issuing determination

Section 501 of the UC Law provides that the Department shall promptly examine each application for benefits. . . 43 P.S. § 821(a) & (b) (italics added).
Here, the Department conducted no examination of the 2012 UC claim other than its 2012 verification of Claimant’s 2011 separation of employment from one employer and its 2017 questionnaire to Employer. . . . . [T]here is no indication that . . . Claimant’s last employer, was provided with notice of her alleged claim for UC benefits as required by Section 501(b) of the UC Law. Thus, there is no indication in the record that the Department attempted to verify Claimant’s alleged separation from Employer in 2012, or at any other time prior to mid-2017. Further, the record contains no explanation by the Department for its five-year delay in pursuing its examination of the claim. 

Nunc pro tunc appeals - Nunc pro tunc relief allowing a UC claimant’s untimely appeal may be permitted where the delay in filing the appeal is the result of extraordinary circumstances involving fraud, administrative breakdown, or non-negligent conduct of the claimant or a third party. Mountain Home Beagle Media v. Unemployment Comp. Bd. of Rev., 955 A.2d 484 (Pa. Cmwlth. 2008); see also Rude v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 184 C.D. 2010, filed Sept. 20, 2010), slip op. at 3-4, 2010 Pa. Commw. Unpub. LEXIS 640, at *5 (unreported) (citing Cook v. Unemployment Comp. Bd. of Rev., 671 A.2d 1130 (Pa. 1996) and Mountain Home Beagle Media). Negligence by an administrative official may be equivalent to fraud for purposes of justifying nunc pro tunc relief. Rude. . . . (citing Stana v. Unemployment Comp. Bd. of Rev., 791 A.2d 1269 (Pa. Cmwlth. 2002)).  Here, Claimant contends the Department was negligent by reason of its five-year delay in issuing the notices of determination. As a result, because Claimant had moved multiple times in the interim, the Department did not provide the requisite notices of its determinations, having mailed them to the wrong address. We agree. 

Leavitt, J. – concurring – no duty of claimant to update address after her claim period has ended

Section 501(e) of the UC Law requires a party to appeal after a notice “was mailed to his last known post office address.” 43 P.S. §821(e) (emphasis added). A fair reading of Section 501(e) suggests that a claimant who has an open claim for unemployment benefits may not raise non-receipt of a determination as an excuse for filing an untimely appeal if she failed to notify the Department of her new address. 

However, it is a bridge too far to read the term “last known post office address” to signify a mandate that any person who ever interacted with the unemployment compensation system must keep the Department informed of every address change after benefits have ceased, by virtue of the claimant’s return to the workplace, or have been exhausted. It is evident when looking at other statutes that the legislature knows how to impose a duty to report address changes when it wishes. . . . .T]he Unemployment Compensation Law imposes no such duty on an individual who once applied for unemployment benefits. When there is no duty, there can be no negligence. . . . For this reason alone, the Board erred in holding that Claimant was in any way negligent for not updating her address with the Department five years (or more) after she ceased to collect unemployment benefits. 

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**An unreported, non-precedential Commonwealth Court case can be cited for its persuasive value but is not binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

 

drivers license - suspension - extraordinary delay between conviction and suspension

Commonwealth, Dept. of Transportation v. Middaugh – Pa. S.Ct. – January 20,2021

 

Majority         http://www.pacourts.us/assets/opinions/Supreme/out/J-7-2020mo%20-%20104664745125444695.pdf?cb=1

Concur           http://www.pacourts.us/assets/opinions/Supreme/out/J-7-2020cdo%20-%20104664745125444731.pdf?cb=1

Dissent   http://www.pacourts.us/assets/opinions/Supreme/out/J-7-2020do%20-%20104664745125444810.pdf?cb=1

 

 

Held: 

Trial court upholding driver appeal affirmed. In reaching its holding, the court relied on Gingrich v. PennDOT, 134 A.3d 528 (Pa. Cmwlth. 2016), which set forth the following rule for situations where the delay is attributable to a court clerk rather than PennDOT: 

[W]here . . . a licensee is able to demonstrate all of the following: [(1)] a conviction that is not reported for an extraordinarily extended period of time; [(2)] the licensee has [no further violations of the Vehicle Code] for an extended period; and [(3)] prejudice, it may be appropriate for common pleas to grant relief. 

Id. at 535. Applying the standard, the trial court found that the 28-month delay was extraordinary, Appellee did not have any further violations during that period, and Appellee had demonstrated he would be prejudiced by the lateness of the suspension, particularly in view of his medical condition and the impact a suspension would have on it. 

 

res judicata (claim preclusion) and collateral estoppel (issue preclusion)

In re Coatesville Area School District – Pa. S.Ct. – January 19,2021 

http://www.pacourts.us/assets/opinions/Supreme/out/J-72-2020mo%20-%20104664752125446022.pdf?cb=1

 

This is a tax assessment case, not really relevant to legal aid practice, but it contains a nice summary of the doctrine of res judicata (claim preclusion) and collateral estoppel (issue preclusion).

 

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Res judicata – literally, a thing adjudicated – is a judicially-created doctrine. See Estate of Bell, 463 Pa. 109, 113, 343 A.2d 679, 681 (1975). It bars actions on a claim, or any part of a claim, which was the subject of a prior action, or could have been raised in that action. See R/S Financial Corp. v. Kovalchick, 552 Pa. 584, 588, 716 A.2d 1228, 1230 (1998); Balent v. City of Wilkes-Barre, 542 Pa. 555, 563, 669 A.2d 309, 313 (1995). This Court has explained that 

[r]es judicata, or claim preclusion, prohibits parties involved in prior, concluded litigation from subsequently asserting claims in a later action that were raised, or could have been raised, in the previous adjudication. The doctrine of res judicata developed to shield parties from the burden of re-litigating a claim with the same parties, or a party in privity with an original litigant, and to protect the judiciary from the corresponding inefficiency and confusion that re-litigation of a claim would breed. 

Wilkes ex rel. Mason v. Phoenix Home Life Mut. Ins. Co., 587 Pa. 590, 607, 902 A.2d 366, 376 (2006) (citation omitted); see also R/S Financial, 552 Pa. at 588, 716 A.2d at 1230 (“The purposes of the rule are the protection of the litigant from the dual burden of relitigating an issue with the same party or his privy and the promotion of judicial economy through prevention of needless litigation.” (quoting Foster v. Mut. Fire, Marine & Inland Ins. Co., 544 Pa. 387, 404, 676 A.2d 652, 661 (1996))).

Four elements common to both actions, sometimes termed the “four identities,” see, e.g., Estate of Tower, 463 Pa. 93, 100, 343 A.2d 671, 674 (1975), must be present for res judicata to apply: “an identity of issues, an identity of causes of action, identity of persons and parties to the action, and identity of the quality or capacity of the parties suing or being sued.” In re Iulo, 564 Pa. 205, 210, 766 A.2d 335, 337 (2001) (citing Safeguard Mut. Ins. Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975)). 

Collateral estoppel is similar in that it bars re-litigation of an issue that was decided in a prior action, although it does not require that the claim as such be the same. For example, if, in a breach of contract action, the defendant asserts that the contract is invalid because of fraud, but the contract is ruled valid and the defendant is found liable, in a future lawsuit against the same party alleging a separate breach of the same contract the defendant is precluded from asserting the invalidity of the contract based on fraud. SeeRESTATEMENT (SECOND) OF JUDGMENTS §27, cmt. a, illus. 2 (1982). 

Collateral estoppel will only apply where: the issue is the same as in the prior litigation; the prior action resulted in a final judgment on the merits; the party against whom the doctrine is asserted was a party or in privity with a party to the prior action; and the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior action. See Rue v. K-Mart Corp., 552 Pa. 13, 17, 713 A.2d 82, 84 (1998). In some renditions, courts add a fifth element, namely, that resolution of the issue in the prior proceeding was essential to the judgment. See, e.g., Office of Disciplinary Counsel v. Kiesewetter, 585 Pa. 477, 484, 889 A.2d 47, 50-51 (2005). 

Collateral estoppel is premised on practical considerations that overlap substantially with those of res judicata. These include avoiding the “cost and vexation” of repetitive litigation, conserving judicial resources, “and, by preventing inconsistent decisions, encourage[ing] reliance on adjudication.” Id. at 484, 889 A.2d at 51. 

civil procedure - I.D. of parties - pseudonyms - federal court

Doe v. Moravian College – ED Pa. – January 8,2021

 

https://www.paed.uscourts.gov/documents/opinions/21D0044P.pdf

 

Plaintiff allowed to proceed with pseudonym is case involving sexual assault under F.R. Civ. P. 10 (a)

 

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n. 1-  Plaintiff Jane Doe, a college freshman, alleges that she was sexually assaulted on her college campus by fellow students and their guest. She brings this action against her alleged attackers, for the assault, and against the college, for not protecting her. See ECF No. 4 (Amended Complaint). The plaintiff is seeking the Court’s permission to continue litigating this matter under a pseudonym. ECF No. 17. Only one of the individual defendants opposes the motion but, in the alternative, requests that he be permitted to also use a pseudonym in this matter. ECF Nos. 24, 31. 

Federal Rule of Civil Procedure 10(a) requires parties to identify themselves in their pleadings. Doe v. Meglass, 654 F.3d 404, 408 (3d Cir. 2011) (citing to Fed. R. Civ. P. 10(a)). “Courts have explained that [Rule 10(a)] illustrates ‘the principle that judicial proceedings, civil as well as criminal, are to be conducted in public.’” Id. (quoting Doe v. Blue Cross & Blue Shield United, 112 F.3d 869, 872 (7th Cir. 1997)). Part of the public nature of judicial proceedings is the identification of the parties. See id. (“Identifying the parties to the proceeding is an important dimension of publicness.” (quoting Blue Cross, 112 F.3d at 872)). Therefore, a litigant’s “use of a pseudonym ‘runs afoul of the public's common law right of access to judicial proceedings.” Id. (quoting Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000)). 

Despite Rule 10(a)’s identification requirement, courts have the discretion to permit litigants to proceed anonymously “in exceptional cases.” See id. The litigant must demonstrate that they have “a reasonable fear of severe harm that outweighs the public’s interest in open judicial proceedings.” Id. The Third Circuit has endorsed a set of non-exhaustive factors when balancing these competing interests. Id. at 409. The factors that favor a litigant’s request to proceed anonymously are: 

(1) the extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases; (3) the magnitude of the public interest in maintaining the confidentiality of the litigant's identity; (4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant's identities; (5) the undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and (6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives. 

Id. (quoting Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. 464, 467 (E.D. Pa. 1997). The factors that weigh against a litigant’s request for anonymity include: 

(1) the universal level of public interest in access to the identities of litigants; (2) whether, because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant's identities, beyond the public's interest which is normally obtained; and (3) whether the opposition to pseudonym by counsel, the public, or the press is illegitimately motivated. 

Id. (quoting Provident Life, 176 F.R.D. at 467). Considering the public’s interest in open court proceedings, courts have found that there is “an independent duty to determine whether ‘exceptional circumstances’ warrant a departure from the normal method of proceeding’ in federal litigation.” Freedom from Religion Foundation, Inc. v. New Kensington-Arnold School Dist., 2012 WL 6629643, at *3 (W.D. Pa. Dec. 19, 2012) (quoting Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004)); see also Doe v. County of Lehigh, 2020 WL 7319544, at *3 (E.D. Pa. Dec. 11, 2020) (Leeson, J.). 

After careful review, the Court finds that the factors balance in favor of permitting plaintiff to continue litigating this case under a pseudonym. Weighing in favor of pseudonymity are the plaintiff’s attempts to keep her identity confidential; her fear of increased embarrassment, humiliation, and stigmatization as a rape victim that would compound the “severe emotional damage” caused by the alleged actions of the defendants if her identity was disclosed; the magnitude of the public interest in maintaining the confidentiality of the identities of sexual assault victims; her assertion that she will refuse to continue to pursue this litigation should she be precluded from using a pseudonym; the plaintiff’s lack of illegitimate motive; and the fact that no public figure is involved in this litigation. The remaining factors, such as the universal level of public interest in access to the identities of litigants, do not outweigh the interests in favor of pseudonymity. For these reasons, the plaintiff’s motion will be granted. 

n. 2 Similarly, the factors weigh in favor of allowing the defendant to also proceed using a pseudonym. 

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This case is also reported in the PLAN Legal Update  http://planupdate.blogspot.com/ , which is searchable and can be accessed without a password.

 

 

 

 

 

 

 

UC - employee v. independent contractor - "actually engaged" in own business

Subcontracting Concepts, Inc. v. UCBR – Cmwlth. Court – 12-16-20 – unreported, non-precedential decision**

 

Held: UCBR decision affirmed, that claimant was not an independent contractor, despite an written agreement stating that he was.  The employer did not offer proof that the claimant was actually engaged in his own business.

 

This case is reported here, because it contains a helpful, extended discussion of the issue, citing important recent precedent, including 

-A Special Touch v. Department of Labor & Industry, 228 A.3d 489 (Pa. 2020)

-Danielle Viktor, Ltd. v. Department of Labor & Industry, Bureau of Employer Tax Operations, 892 A.2d 781 (Pa. 2006).

- Lowman v. UCBR, 235 A.3d 278 (Pa. 2020

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*An unreported, non-precedential Commonwealth Court case can be cited for its persuasive value but is not binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

 

 

PFA - reasonable fear does not require proof of past physical abuse

C.J.L. v. W.S.M. , SR. – Pa. Superior – December 16, 2020 – non-precedential decision**

 

Held: Course of conduct which creates reasonable fear of bodily injury can be based solely on non-physical factors, such as threats and following victim to work.  It does not require proof of past physical violence. D.H. v. B.O., 734 A.2d 409 (Pa. Super. 1999) and Burke v. Bauman, 814 A.2d 206 (Pa. Super. 2002) distinguished.

Burke and D.H. hold that reasonable fear can be based on persistent communications particularly where there is a history of abuse. Neither case required evidence of past abuse or held that communications alone can never form the basis for a PFA. Moreover, the record reflects more than mere communication. The victim testified that on one occasion defendant, from his car, noticed her travelling in the opposite direction and turned around and followed her to work. 

Evidence issue – The fact that the physical text message and letters were not in evidence was not relevant, where they were read into evidence in open court, and the parties testified as to their perceived meaning 

 

 

*An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.  See 210 Pa. Code 65.37(B).

UC - willful misconduct - ER failure to give reason for firing at time of termination does not preclude later proof of reason

The Community Youth and Women’s Alliance v. UCBR – Cmwlth. Court – 12-12-20 – unreported memorandum decision, no precential**

 

Held:  The failure of an employer to give claimant a reason for her firing at the time of termination does not preclude the employer from later establishing one in response to initial determination or at hearing, so long as the latter two are consistent.

 

From the opinion:

In determining whether an employer has discharged an employee for willful misconduct, we have held that an employer is prohibited from offering one reason for discharge at the time of separation and then later relying on a completely different reason. See Saleem v. UCBR., 35 A.3d 1283, 1290-93 (Pa. Cmwlth. 2012); Browning-Ferris Indus. of Pa., Inc. v. UCBR., 561 A.2d 856, 857 (Pa. Cmwlth. 1989). 

However, that is not the same as not giving a reason at the time of discharge, but later offering one in response to the initial determination and later at an appeal hearing.  Precedent does not constrain an employer that fails to provide a reason at discharge from later establishing one. In the matter before us, Employer has alleged the same reasons for Claimant’s discharge at all times since it completed the employer questionnaire: general financial mismanagement, lapse of insurance, excessive trash fees, and lack of financial disclosure to the board of directors. Employer’s failure to provide these reasons to Claimant at the time of discharge does not prevent Employer from later establishing them in order to meet its burden of proof under Section 402(e) of the Law. 

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This case is also reported in the PLAN Legal Update  http://planupdate.blogspot.com/ , which is searchable and can be accessed without a password.

**An unreported, non-precedential Commonwealth Court case can be cited for its persuasive value but is not binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

 

LT - request for order of possession - time limit extended to 180 days from entry of judgment

Order -           http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%20104625461121365958.pdf?cb=1\

Rule                http://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20-%20104625461121365893.pdf?cb=1

Final Report  http://www.pacourts.us/assets/opinions/Supreme/out/Report%20-%20104625461121365777.pdf?cb=1

 

 

Recommendation 4-2020, Minor Court Rules Committee

Amendment of Pa.R.C.P.M.D.J. Nos. 515 and 516

EXTENSION OF TIME FOR A LANDLORD TO REQUEST AN ORDER FOR POSSESSION IN A RESIDENTIAL LEASE CASE

Introduction

FINAL REPORT1

The Minor Court Rules Committee (“Committee”) recommended amendments to Rules 515 and 516 of the Pennsylvania Rules of Civil Procedure Governing Actions and Proceedings Before Magisterial District Judges (“Rules”). The amendments will permit a landlord in a case involving a residential lease to request an order for possession within 180 days from the date of entry of judgment rather than the current 120 days. The recommendation is necessitated by exigent circumstances requiring the immediate adoption of the proposal and is adopted in accordance with Pa.R.J.A. No. 103(a)(3), without prior publication for public comment.

I. Background and Discussion

Following the issuance of a judgment in a landlord-tenant case and the requisite waiting period, a landlord seeking to regain property must file a request for an order for possession with the magisterial district court. See Rule 515. In residential landlord-tenant cases, the landlord must file the request for an order for possession no later than 120 days from the date of entry of the judgment. See Rule 515B(1). Certain actions will stay the period within which a request for order for possession must be filed, such as an appeal or writ of certiorari operating as a supersedeas, or a bankruptcy or other stay required by state or federal law. See Rule 515B(2).

Since the onset of the COVID-19 pandemic, the Court, the federal government, the Governor, and the Centers for Disease Control and Prevention (“CDC”), inter alia, have promulgated laws and orders suspending certain residential evictions.

One of the most recent orders staying some residential evictions, issued by the CDC, will expire on December 31, 2020.

The Committee received correspondence recommending an extension of the 120- day period within which a landlord must file a request for an order for possession in a residential landlord-tenant case. An extension would provide the parties with greater flexibility to negotiate and enter into private forbearance agreements. Such private agreements could allow the tenants additional time in which to satisfy back rent obligations while maintaining current rental payments and housing status. Therefore, the Committee recommended increasing the time period within which a landlord must file a request for an order for possession in a residential lease case from 120 days to 180 days. 

III. Rule Changes

Rules 515 and 516 are amended to provide for 180 days within which a landlord in a residential lease case must request an order for possession. Rule 516C is further amended to provide that upon written request of the landlord in a case arising out of a residential lease, the magisterial district judge shall reissue an order for possession for no more than two additional 60-day periods.

Docket, In re: General Statewide Judicial Emergency, p. 12. See also Coronavirus Aid, Relief, and Economic Security Act, P.L. 116-136 (“CARES Act”); Commonwealth of Pennsylvania, Executive Order May 7, 2020, § 2, as amended, May 21, 2020; Commonwealth of Pennsylvania, Executive Order July 9, 2020, § 2; Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55292 (Sept. 4, 2020) (“CDC Order”).

 

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1 The Committee’s Final Report should not be confused with the Official Notes to the Rules. Also, the Supreme Court of Pennsylvania does not adopt the Committee’s Official Notes or the contents of the explanatory Final Reports.

2 See Order of March 18, 2020, Nos. 531 and 532 Judicial Administration Docket, In re: General Statewide Judicial Emergency, pp. 8-9 (suspending eviction, ejectment, or other displacement from a residence based upon the failure to make a rent, loan, or other similar payment). See also Order of April 1, 2020, Nos. 531 and 532 Judicial Administration Docket, In re: General Statewide Judicial Emergency, p. 6, Second Supplemental Order; Order of April 28, 2020, Nos. 531 and 532 Judicial Administration

 

 

 

 

UC - medical marijuana - sec. 402 (e.1)

Pittsburgh Water and Sewer v. UCBR – Cmwlth. Court – en banc – reported, precedential – November 18, 2020

 

Held: Claimant not disqualified under sec. 402 (.1), 43 P.S. sec. 802 (e.1), relating to discharge for failure to submit to or pass a drug test conduct pursuant t9 an employer’s established substance abuse policy, under the following circumstances.

 

• Claimant had valid prescription for medical marijuana, permitted under state law
• Claimant told ER that she had such a prescription and submitted a copy to the ER
• ER policy allowed a CL to rebut positive test w/in 3 days w/proof of valid prescription
• ER policy prohibited release of positive test to medical review officer  (MRO) if CL produced prescription w/in 3 days
• ER policy excused use of marijuana if medically prescribed
• ER policy allowed use of prescription drugs at work
• Marijuana was a “legal drug” when valid prescription, under ER policy
• ER released test result nonetheless – failed to follow its own policy
• ER discharged CL because marijuana illegal under federal law

 

UCBR and Court found that ER policy was ambiguous and should be construed against ER, which drafted it. 

 

ER failed to follow its own policy, as it is required to do under UC Law.

“[T]he statutory language clearly provides that to be ineligible for UC benefits under Section 402(e.1) of the Law, the drug test must be in accordance with employer’s substance abuse policy.” Katera’s Kove, Inc. v. Unemployment Comp. Bd. of Review, 130 A.3d 800, 804 (Pa. Cmwlth. 2015) (emphasis added). Here, Employer’s Drug Policy expressly permits “individuals [to] use . . . prescription drugs while at work strictly in accordance with . . . a physician’s prescription[.]” R.R. at 170a. Further, the Drug Policy defines “legal drug” as “prescription medications . . . that have been legally obtained[,]” R.R. at 173a, and explicitly states that “[t]he possession or use of legal drugs while on [Employer’s] premises, during work hours and/or when performing any [Employer] business . . . is permitted[.]”  [emphasis in original]

 

Court recognized that UC law is remedial

“[I]t is to be remembered that the . . . Law is a remedial statute, and, excepting the sections imposing taxes, its provisions must be liberally and broadly construed so that its objectives (insuring that employees who become unemployed through no fault of their own are provided with some semblance of economic security) may be completely achieved.  A Special Touch v. Dep’t of Labor & Indus., 228 A.3d 489, 503 (Pa. 2020) (quoting Wedner v. UCBR, 296 A.2d 792, 796 (Pa. 1972)). 

 

 

 

 

 

 

 

 

contracts - instruments under seal - statute of limitations - waiver of rights

National Loan Investors v. Gold – Pa. Superior Court – 11-13-20

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A17011-20m%20-%20104603903119751379.pdf?cb=1

 

This decision is not precedential but it is worth reading and considering.  It upholds the argument that the contract/instrument was under seal – and thus extended the statute of limitations in the matter to 20 years.  

 

This writer would like to see a challenge to this and similar cases. It seems to me that no one realize the effect of a contract being under seal ,and that a waiver of the normal rules for statutes of limitations should only be enforced when it is knowing, intelligent, and voluntary. 

 

See, e.g., Cole v. Philadelphia Co., 26 A.2d 920, 924 (Pa. 1942), “To make proof of waiver of a legal right there must be clear, unequivocal and decisive action of the party with knowledge of such right showing a purpose to surrender such right on his part.” Accord, Brown v. City of Pittsburgh, 186 A. 2d. 399, 401 (Pa. 1962); Johnson v. Concord Mutual Insurance Co., 300 A. 2d 61, 64-5 (Pa. 1973); Transnational Consumer Discount Co. v. Kefauver, 307 A.2d 303, 305 (Pa. Super. 1973).

 

“An agreement or instrument which reduces legal rights which would otherwise exist is strictly construed against the party asserting it and must spell out with the utmost particularity the intention of the parties,” e.g. an exculpatory clause relieving a landlord of liability for negligence with respect to the conditions of stairs, etc. Galligan . Arovitch, 219 A. 2d 463, 464-5 (Pa. 1966).

 

There are also cases involving a confession of judgment with similar language, e.g., Cutler v. Latshaw, 97 A.2d 234 (Pa,. 1953), and its progeny,.

 

 

 

LT - L's failure to get required use/occupancy permit did not give former tenant right to counterclaim for past rent paid

Aspen Enterprises v. Thomas – Pa. Superior Court – 11-5-20 – unreported** memorandum opinion

 

Held: Former landlord sued for past rent due and damages to the premises by former tenant.  Court dismissed tenant’s counterclaim for rent already paid dismissed, in spite of landlord’s failure to get a use/occupancy permit from City of Chester under ordinance which “denied the right to recover possession. . .or to collect rent during any period of noncompliance” with ordinance.  Frempong v. Richardson, 209 A3d 1001 (Pa. Super. 2019), concerning similar Philadelphia ordinance, distinguished.

 

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This case is also reported in the PLAN Legal Update  http://planupdate.blogspot.com/ , which is searchable and can be accessed without a password.

 

*An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.  See 210 Pa. Code 65.37(B).