Davila v. UCBR - Commonwealth Court - June 26, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/255CD07_6-26-07.pdf
A Claimant who quit her job pursuant to requirements of a voluntary retirement program did not have good cause to leave her job, where continuing work was available and she was not in danger of losing her job. The fact that the program required her to retire did not constitute good cause, since she entered the program voluntarily.
Tuesday, June 26, 2007
Monday, June 25, 2007
UC - voluntary quit - childcare
Shaffer v. UCBR - Commonwealth Court - June 25, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/119CD07_6-25-07.pdf
Claimant held not to have proved a necessitous and compelling reason to quit her job when her employer moved its operations, thus increasing her commuting time and causing the loss of her parents' help with childcare. The court said that the claimantdid not "establish that she exhausted all other alternative arrangements, such as making a concerted effort to find another baby-sitter or locate a suitable day care center." (emphasis added)
Her testimony showed that she "investigated only one daycare facility" and "did not offer evidence that she looked in any other childcare arrangements" or that she properly explored alternative arrangements for her old son's before and after school care. (emphasis in original). The claimant "did not establish that she made a concerted effort to find alternative childcare arrangements." (emphasis added)
http://www.courts.state.pa.us/OpPosting/CWealth/out/119CD07_6-25-07.pdf
Claimant held not to have proved a necessitous and compelling reason to quit her job when her employer moved its operations, thus increasing her commuting time and causing the loss of her parents' help with childcare. The court said that the claimantdid not "establish that she exhausted all other alternative arrangements, such as making a concerted effort to find another baby-sitter or locate a suitable day care center." (emphasis added)
Her testimony showed that she "investigated only one daycare facility" and "did not offer evidence that she looked in any other childcare arrangements" or that she properly explored alternative arrangements for her old son's before and after school care. (emphasis in original). The claimant "did not establish that she made a concerted effort to find alternative childcare arrangements." (emphasis added)
Friday, June 22, 2007
consumer - floating forum selection clause
Susquehanna Patriot Commcl. Leasing Co. v. Holper Industries, Inc. - Super. Ct. - June 12, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a24021_06.pdf
A "floating" forum selection clause (FFSC) in contracts concerning equipment leases was held to be enforceable under Pennsylvania law., under the general principles set out in Patriot Commcl. Leasing Co. v. Kremer Restaurant, 915 A2d 647 (Pa. Super. 2006) http://www.courts.state.pa.us/OpPosting/Superior/out/A24012_06.pdf posted and discussed in the PLAN Updates in January 2007.
The equipment was advertised by the lessor, NorVergence, as providing 30%-60% savings to the lessees, through the use of a specific device. In fact, the device was not capable of providing any reduced savings and was worth a fraction of its selling price. Immediately after the lease-contracts were consummated, NorVergence assigned them to 3rd party finance companies, including appellant. The original lease said that the money on the rental agreements was owed regardless of whether NorVergence provided the promised services. After collecting millions on the assignments, NorVergence declared bankruptcy. The lessees stopped making payments to the assignees, who then sued in Pennsylvania on leases executed by small business entities in New Jersey and Maryland.
After setting out the split of authority regarding the enforceability of the FFSC and the difficulty in disassociating the "obvious and egregious fraud" used to procure these leases from the analysis of whether to uphold the FFSC, the court upheld them in these cases, noting the "in the interest of judicial uniformity, all cases must be analyzed in accordance with overriding principles of law that cannot depend upon facts not implicated in the application on those principles. We must confine ourselves accordingly."
The court in Patriot Commercial Leasing held that where the parties have freely agreed to a forum selection clause, which was not unreasonable at the time, it will only be held unreasonable where its enforcement, under all of the circumstances, would seriously impair a party's ability to pursue its case. Here, the defendants are in states which border Pennsylvania; and many of them have the same attorney; many of their claims can be heard in the same proceeding.
There has been "nationwide litigation, including litigation by various state attorneys general and the FTC about this issue, concerning leases negotiated by NorVergence, which assigned various leases for telecommunications equipment to Appellant Susquehanna PCL. See, http://www.attorneygeneral.gov/consumers.aspx? and http://www.ftc.gov/opa/2005/07/norvergence.shtm
http://www.courts.state.pa.us/OpPosting/Superior/out/a24021_06.pdf
A "floating" forum selection clause (FFSC) in contracts concerning equipment leases was held to be enforceable under Pennsylvania law., under the general principles set out in Patriot Commcl. Leasing Co. v. Kremer Restaurant, 915 A2d 647 (Pa. Super. 2006) http://www.courts.state.pa.us/OpPosting/Superior/out/A24012_06.pdf posted and discussed in the PLAN Updates in January 2007.
The equipment was advertised by the lessor, NorVergence, as providing 30%-60% savings to the lessees, through the use of a specific device. In fact, the device was not capable of providing any reduced savings and was worth a fraction of its selling price. Immediately after the lease-contracts were consummated, NorVergence assigned them to 3rd party finance companies, including appellant. The original lease said that the money on the rental agreements was owed regardless of whether NorVergence provided the promised services. After collecting millions on the assignments, NorVergence declared bankruptcy. The lessees stopped making payments to the assignees, who then sued in Pennsylvania on leases executed by small business entities in New Jersey and Maryland.
After setting out the split of authority regarding the enforceability of the FFSC and the difficulty in disassociating the "obvious and egregious fraud" used to procure these leases from the analysis of whether to uphold the FFSC, the court upheld them in these cases, noting the "in the interest of judicial uniformity, all cases must be analyzed in accordance with overriding principles of law that cannot depend upon facts not implicated in the application on those principles. We must confine ourselves accordingly."
The court in Patriot Commercial Leasing held that where the parties have freely agreed to a forum selection clause, which was not unreasonable at the time, it will only be held unreasonable where its enforcement, under all of the circumstances, would seriously impair a party's ability to pursue its case. Here, the defendants are in states which border Pennsylvania; and many of them have the same attorney; many of their claims can be heard in the same proceeding.
There has been "nationwide litigation, including litigation by various state attorneys general and the FTC about this issue, concerning leases negotiated by NorVergence, which assigned various leases for telecommunications equipment to Appellant Susquehanna PCL. See, http://www.attorneygeneral.gov/consumers.aspx? and http://www.ftc.gov/opa/2005/07/norvergence.shtm
Tuesday, June 19, 2007
real property - tax sale - notice - new sale
Willard v. Delaward Co. Tax Claim Bureau - April 276, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/1319CD06_4-26-07.pdf
Record owners of property listed but then removed from one judicial tax sale, then relisted for another sale, must get new , separate notice of the second sale. The second sale is not merely a continuation of the original sale. There is no provision in the Real Estate Tax Sale Law for the concept of a "continued" judicial sale.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1319CD06_4-26-07.pdf
Record owners of property listed but then removed from one judicial tax sale, then relisted for another sale, must get new , separate notice of the second sale. The second sale is not merely a continuation of the original sale. There is no provision in the Real Estate Tax Sale Law for the concept of a "continued" judicial sale.
real estate - tax assessment - appeal - base year value v. current market value
Daugherty v. County of Allegheny - Commonwealth Court - March 27, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/1777CD06_3-27-07.pdf
County Board of Assessment lacked the statutory authority to limit assessment appeals to challenge to base year market value, rather than challenge that assessment exceeds current market value.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1777CD06_3-27-07.pdf
County Board of Assessment lacked the statutory authority to limit assessment appeals to challenge to base year market value, rather than challenge that assessment exceeds current market value.
mortgage foreclosure - predatory loan - arbitration - limitation of consumer judicial remedies
Salley v. Option One Mortgage Corp. - Pa. Supreme Court - May 31, 2007 majority
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-34-2006mo.pdf dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-34-2006do.pdf
In a case arising from a federal court's certification of the question to the state supreme court, the state court held that an arbitration agreement consummated in connection with a residential mortgage loan which limited a consumer's judicial remedies related to foreclosure is not presumptively unconscionable. The exceptions from arbitration involved creditor remedies exclusively, including: foreclosure; self-help remedies (such as repossession); and ancillary remedies such as sequestration, attachment, replevin, and garnishment.
The federal suit arose in the context of a consumer suit "asserting violation of various mortgage-regulation and consumer-protection laws by a sub-prime lender, i.e., a financial institution affording higher-interest loans to consumer with impaired credit histories."
The court apparently accepted the holding in Harris v. Green Tree Financial Corp., 183 F.3d 173 (3d Cir. 1999), interpreting Pa. law to be that the mere fact that the lender retains the option to litigate some issues in court, while the consumer must arbitrate all claims does not make the arbitration agreement unenforceable.
Although the court did not say that it was overruling the decision, only that it "swept too broadly," the court apparently rejected Lytle v. CitiFinancial Services, Inc. 810 A.2d 643 (Pa. Super. 2002), which had held that "under Pennsylvania law, the reservation by [a financial institution] of access to the courts for itself to the exclusion of the consumer creates a presumption of unconscionability."
The case also involved the Federal Arbitration Act, 9 USC 2, which expresses a liberal federal policy favoring arbitration agreements. The FAA was meant to "overcome state legislative and judicial efforts to undermine the enforceability of arbitration agreements, inter alia, by establishing a substantive rule of federal law placing such agreements upon the same footing as other contracts." In Prima Paint Corp v. Flood & Conklin Mfg. Co., 388 US 395, 404 (1967) and Buckeye Check Cashing, Inc. v. Cardegna, 546 US 440 (2006), the Supreme Court "has determined that a challenge to the validity of a contract as a whole, and not specificlaly to an arbitration clause, must be presented to the arbitrator and not the courts....The courts may consider, in the first instnace, only those challenges that are directed solely to the arbitration component itself."
The court rejected the argument about the effect of a split-forum, that is, the consumer having "to litigate nearly identical statutory claims twice, one in state court against he foreclosing entity (to whom the loan has been sold/assigned in a secondary market), and a second time in an arbitral forum against....the lender."
Thus, it said that "although this Court is cognizant of the phenomenon of predatory lending and its deleterious effects, because those asserted aspects of this case go to not only the arbitration agreement but also to the underlying merits of the parties' larger dispute, we believe that any relevant contentions in this regard are for an arbitrator in the first instance, under the rationale set forth in the Prima Paint/Buckeye line of decisions."
However, the court did not entirely foreclose the consumer's arguments, noting that it had "taken care...not to exclude the possibility that the arbitration agreement might otherwise be deemed to be unconscionable under Pennsylvania law if [the plaintff's] predatory lending claims are proven, since we have little doubt concerning the unreasonableness of such an adhesion agreement when used as a tool of established predatory lending."
The court also noted "a substantial level of procedural unconscionability present in the sub-prime lending industry, as it employs adhesion contracts and, by design, targets those with few financial choices. Procedural unconscionability would be particularly high in the present case if various of the facts asserted by [the plaintiff], such as lender non-disclosure and dishonesty in the application and settlement process, are true. Furthermore, [the lender] does not deny that its agreement with [the consumer] was one of adhesion. Nevertheless, merely because a contract is one of adhesion does not render it unconscionable and unenforceable as a matter of law."
The court relied heavily on a New Jersey case, Delta Funding Corp. v. Harris, 912 A.2d 104 (NJ 2006)
The consumer-plaintiff waived several important arguments presented by his amici, including whether the costs of arbitration would be prohibitively expensive.
Justice Baldwin, dissenting, argued that a) the majority would have an arbitrator rather than the court decide the important question of unconscionability, and b) that the consumer's was attacking the arbitration clause, not the contract as a whole. She suggested that the court follow contrary decisions from Wisconsin, Tennessee, West Virginia and California in finding that "one-sided arbitration agreements are unconscionable and void."
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-34-2006mo.pdf dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-34-2006do.pdf
In a case arising from a federal court's certification of the question to the state supreme court, the state court held that an arbitration agreement consummated in connection with a residential mortgage loan which limited a consumer's judicial remedies related to foreclosure is not presumptively unconscionable. The exceptions from arbitration involved creditor remedies exclusively, including: foreclosure; self-help remedies (such as repossession); and ancillary remedies such as sequestration, attachment, replevin, and garnishment.
The federal suit arose in the context of a consumer suit "asserting violation of various mortgage-regulation and consumer-protection laws by a sub-prime lender, i.e., a financial institution affording higher-interest loans to consumer with impaired credit histories."
The court apparently accepted the holding in Harris v. Green Tree Financial Corp., 183 F.3d 173 (3d Cir. 1999), interpreting Pa. law to be that the mere fact that the lender retains the option to litigate some issues in court, while the consumer must arbitrate all claims does not make the arbitration agreement unenforceable.
Although the court did not say that it was overruling the decision, only that it "swept too broadly," the court apparently rejected Lytle v. CitiFinancial Services, Inc. 810 A.2d 643 (Pa. Super. 2002), which had held that "under Pennsylvania law, the reservation by [a financial institution] of access to the courts for itself to the exclusion of the consumer creates a presumption of unconscionability."
The case also involved the Federal Arbitration Act, 9 USC 2, which expresses a liberal federal policy favoring arbitration agreements. The FAA was meant to "overcome state legislative and judicial efforts to undermine the enforceability of arbitration agreements, inter alia, by establishing a substantive rule of federal law placing such agreements upon the same footing as other contracts." In Prima Paint Corp v. Flood & Conklin Mfg. Co., 388 US 395, 404 (1967) and Buckeye Check Cashing, Inc. v. Cardegna, 546 US 440 (2006), the Supreme Court "has determined that a challenge to the validity of a contract as a whole, and not specificlaly to an arbitration clause, must be presented to the arbitrator and not the courts....The courts may consider, in the first instnace, only those challenges that are directed solely to the arbitration component itself."
The court rejected the argument about the effect of a split-forum, that is, the consumer having "to litigate nearly identical statutory claims twice, one in state court against he foreclosing entity (to whom the loan has been sold/assigned in a secondary market), and a second time in an arbitral forum against....the lender."
Thus, it said that "although this Court is cognizant of the phenomenon of predatory lending and its deleterious effects, because those asserted aspects of this case go to not only the arbitration agreement but also to the underlying merits of the parties' larger dispute, we believe that any relevant contentions in this regard are for an arbitrator in the first instance, under the rationale set forth in the Prima Paint/Buckeye line of decisions."
However, the court did not entirely foreclose the consumer's arguments, noting that it had "taken care...not to exclude the possibility that the arbitration agreement might otherwise be deemed to be unconscionable under Pennsylvania law if [the plaintff's] predatory lending claims are proven, since we have little doubt concerning the unreasonableness of such an adhesion agreement when used as a tool of established predatory lending."
The court also noted "a substantial level of procedural unconscionability present in the sub-prime lending industry, as it employs adhesion contracts and, by design, targets those with few financial choices. Procedural unconscionability would be particularly high in the present case if various of the facts asserted by [the plaintiff], such as lender non-disclosure and dishonesty in the application and settlement process, are true. Furthermore, [the lender] does not deny that its agreement with [the consumer] was one of adhesion. Nevertheless, merely because a contract is one of adhesion does not render it unconscionable and unenforceable as a matter of law."
The court relied heavily on a New Jersey case, Delta Funding Corp. v. Harris, 912 A.2d 104 (NJ 2006)
The consumer-plaintiff waived several important arguments presented by his amici, including whether the costs of arbitration would be prohibitively expensive.
Justice Baldwin, dissenting, argued that a) the majority would have an arbitrator rather than the court decide the important question of unconscionability, and b) that the consumer's was attacking the arbitration clause, not the contract as a whole. She suggested that the court follow contrary decisions from Wisconsin, Tennessee, West Virginia and California in finding that "one-sided arbitration agreements are unconscionable and void."
Wednesday, June 13, 2007
Truth-in-Lending - "tolerance for accuracy" not an affirmative defense
Sterten v. Option One Mortgage Corp. - ED Pa. - March 22, 2007
http://www.paed.uscourts.gov/documents/opinions/07d0409p.pdf
The "tolerance for accuracy" provision of the Truth in Lending Act, 15 USC 1605(f), is not an affirmative defense under Rule 8(c) of the Federal Rules of Civil Procedure.
Where the creditor made it clear in the pleadings that the discrepancy in the finance charge ($57) came within the $100 limit of sec. 1605(f) of the TILA, the notice policies of the federal rules was satisfied. Section 1605(f) "defines the parameters of an element of the TILA violation. It does not create a defense. Only if the total of the improper finance charges exceeds $100 is there a violation." Where as here the discrepancy was less thatn $100, there is no statutory violation.
The federal rules "reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits."
http://www.paed.uscourts.gov/documents/opinions/07d0409p.pdf
The "tolerance for accuracy" provision of the Truth in Lending Act, 15 USC 1605(f), is not an affirmative defense under Rule 8(c) of the Federal Rules of Civil Procedure.
Where the creditor made it clear in the pleadings that the discrepancy in the finance charge ($57) came within the $100 limit of sec. 1605(f) of the TILA, the notice policies of the federal rules was satisfied. Section 1605(f) "defines the parameters of an element of the TILA violation. It does not create a defense. Only if the total of the improper finance charges exceeds $100 is there a violation." Where as here the discrepancy was less thatn $100, there is no statutory violation.
The federal rules "reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits."
Tuesday, June 12, 2007
civil procedure - prothonotary - duty to accept pleadings
Sollenberger v. Lee, Prothonotary - Commonwealth Court - June 8, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/82CD07_6-8-07.pdf
"The prothonorary is not an administrative officer who has the discretion to interpret or implement rules or statutes....Therefore if documents tendered for filing are proper on their face and in conformity with rules of court, a prothonotary does not have the discretion to refuse to enter them...."
http://www.courts.state.pa.us/OpPosting/CWealth/out/82CD07_6-8-07.pdf
"The prothonorary is not an administrative officer who has the discretion to interpret or implement rules or statutes....Therefore if documents tendered for filing are proper on their face and in conformity with rules of court, a prothonotary does not have the discretion to refuse to enter them...."
Friday, May 25, 2007
Supreme Court Holds that Parents Can Pursue IDEA Claims in Federal Court
The United States Supreme Court has held that parents seeking to enforce rights granted to their children under the Individuals with Disabilities Education Act (IDEA) have independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free appropriate public education for their child and that these right may be enforced by the parents in the federal courts on their own behalf without the assistance of legal counsel.
In Winkelman v. Parma City School District, decided May 21, 2007, the Court reversed the order of the Sixth Circuit Court of Appeals dismissing the Winkelmans’ appeal unless they obtained counsel to represent their son, Jacob.
The Sixth Circuit relied on Cavanaugh v. Cardinal Local School Dist., 409 F. 3d 753 (2005), where the Court of Appeals had rejected the proposition that IDEA allows nonlawyer parents raising IDEA claims to proceed pro se in federal court. The court ruled that the right to a free appropriate public education “belongs to the child alone,” 409 F. 3d, at 757, not to both the parents and the child. It followed, the court held, that “any right on which the [parents] could proceed on their own behalf would be derivative” of the child’s right, ibid., so that parents bringing IDEA claims were not appearing on their own behalf.
The Supreme Court reversed, concluding that IDEA grants parents independent, enforceable rights. These rights, which are not limited to certain procedural and reimbursement-related matters, encompass the entitlement to a free appropriate public education for the parents’ child.
The Court stated that the Court of Appeals erred when it dismissed the Winkelmans’ appeal for lack of counsel. Parents enjoy rights under IDEA; and they are, as a result, entitled to prosecute IDEA claims on their own behalf.
View the Decision (Legal Information Institute - Cornell Law School)
In Winkelman v. Parma City School District, decided May 21, 2007, the Court reversed the order of the Sixth Circuit Court of Appeals dismissing the Winkelmans’ appeal unless they obtained counsel to represent their son, Jacob.
The Sixth Circuit relied on Cavanaugh v. Cardinal Local School Dist., 409 F. 3d 753 (2005), where the Court of Appeals had rejected the proposition that IDEA allows nonlawyer parents raising IDEA claims to proceed pro se in federal court. The court ruled that the right to a free appropriate public education “belongs to the child alone,” 409 F. 3d, at 757, not to both the parents and the child. It followed, the court held, that “any right on which the [parents] could proceed on their own behalf would be derivative” of the child’s right, ibid., so that parents bringing IDEA claims were not appearing on their own behalf.
The Supreme Court reversed, concluding that IDEA grants parents independent, enforceable rights. These rights, which are not limited to certain procedural and reimbursement-related matters, encompass the entitlement to a free appropriate public education for the parents’ child.
The Court stated that the Court of Appeals erred when it dismissed the Winkelmans’ appeal for lack of counsel. Parents enjoy rights under IDEA; and they are, as a result, entitled to prosecute IDEA claims on their own behalf.
View the Decision (Legal Information Institute - Cornell Law School)
Monday, May 21, 2007
custody - standing - step-grandparents - parents not separated
Helsel v. Puricelli - Superior Court - May 21, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a07037_07.pdf
A step-grandfather is not a "grandparent" under the the Custody and Grandparents Visitation Act (GVA), 23 Pa. C.S. 5301 et seq.
Even if he were, he would not have standing under the facts of this case, in which the parents, who had been separated for more than 6 months at one time, were back together as an intact family at the time the step-grandfather filed his action. Sec. 5312 allows a grandparents to seek "reasonable partial custody or visitation" where the parents "have been separated for six months or more..." The court held that the "GVA only applies where parents separated at least six months before the filing of the custody petition and remain separated at the time the petition is filed."
http://www.courts.state.pa.us/OpPosting/Superior/out/a07037_07.pdf
A step-grandfather is not a "grandparent" under the the Custody and Grandparents Visitation Act (GVA), 23 Pa. C.S. 5301 et seq.
Even if he were, he would not have standing under the facts of this case, in which the parents, who had been separated for more than 6 months at one time, were back together as an intact family at the time the step-grandfather filed his action. Sec. 5312 allows a grandparents to seek "reasonable partial custody or visitation" where the parents "have been separated for six months or more..." The court held that the "GVA only applies where parents separated at least six months before the filing of the custody petition and remain separated at the time the petition is filed."
custody - standing
Morgan v. Weiser - Superior Court - May 7, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a41021_06.pdf
Biological father whose parental rights were terminated does not stand in loco parentis to the child, given that, after the termination, he had minimal partial custody of child, paid minimal child support, and did not live with the child in a familial setting at any time. His contact with the child was "akin to babysitting and caretaking."
http://www.courts.state.pa.us/OpPosting/Superior/out/a41021_06.pdf
Biological father whose parental rights were terminated does not stand in loco parentis to the child, given that, after the termination, he had minimal partial custody of child, paid minimal child support, and did not live with the child in a familial setting at any time. His contact with the child was "akin to babysitting and caretaking."
attorneys fees - reasonableness
McMullen v. Kurtz - Superior Court - May 17, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/A37007_06.pdf
Legal fees in a contract must be reasonable even if the contract providing for the award of such fees does not specify that they must be reasonable. A reasonableness requirement is "implicit in the agreement."
In determining reasonableness, the court must consider, inter alia, how complicated the issues the issues in the underlying case were.
http://www.courts.state.pa.us/OpPosting/Superior/out/A37007_06.pdf
Legal fees in a contract must be reasonable even if the contract providing for the award of such fees does not specify that they must be reasonable. A reasonableness requirement is "implicit in the agreement."
In determining reasonableness, the court must consider, inter alia, how complicated the issues the issues in the underlying case were.
Thursday, May 17, 2007
consumer protection - drug/medical/dental ads
Commonwealth v. Peoples Benefit Services - Commonwealth Court - May 14, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/557MD05_5-14-07.pdf
The Attorney General sued PBS for consumer protection violations, alleging that PBS ads could confuse or mislead consumers into believing that PBS and its goods/services are government related, in violation of the CPL, 73 P.S. sec. 201-1 et seq.
The Commonwealth's request for a preliminary injunction was denied, even though the judge who heard the case found that PBS designed its campaign with the intent to take advantage of confusing changes to Medicare Part D and the PBS deliberately attempted to "push the envelope" with its marketing materials. The Court in this opinion denied both parties' request for summary judgment, finding that there were still unresolved issues of material fact.
However, the court set out some important CPL principles, including that an act/practice is deceptive or unfair it is has the capacity or tendency to deceive. Neither the intention to deceive nor an actual deception must be proved. Rather it need only be show that the acts/practices are capable of being interpreted in a misleading way. The test for the court is to determine the overall impression arising from the totality of what is said, as well as what is reasonably implied in the ad or solicitation. The CPL is to be construed liberally to effectuate its objective of protecting consumers from fraud and unfair or deceptive business practices.
http://www.courts.state.pa.us/OpPosting/CWealth/out/557MD05_5-14-07.pdf
The Attorney General sued PBS for consumer protection violations, alleging that PBS ads could confuse or mislead consumers into believing that PBS and its goods/services are government related, in violation of the CPL, 73 P.S. sec. 201-1 et seq.
The Commonwealth's request for a preliminary injunction was denied, even though the judge who heard the case found that PBS designed its campaign with the intent to take advantage of confusing changes to Medicare Part D and the PBS deliberately attempted to "push the envelope" with its marketing materials. The Court in this opinion denied both parties' request for summary judgment, finding that there were still unresolved issues of material fact.
However, the court set out some important CPL principles, including that an act/practice is deceptive or unfair it is has the capacity or tendency to deceive. Neither the intention to deceive nor an actual deception must be proved. Rather it need only be show that the acts/practices are capable of being interpreted in a misleading way. The test for the court is to determine the overall impression arising from the totality of what is said, as well as what is reasonably implied in the ad or solicitation. The CPL is to be construed liberally to effectuate its objective of protecting consumers from fraud and unfair or deceptive business practices.
Friday, May 04, 2007
Pennsylvania Bulletin of May 5, 2007
http://www.pabulletin.com/secure/data/vol37/37-18/index.html
MDJs - Rule 112- availability and temporary assignment - civil and possessory actions
http://www.pabulletin.com/secure/data/vol37/37-18/774.html
welfare - MA - Healthy Beginnings - Health Horizons - federal poverty guidelines 2007
http://www.pabulletin.com/secure/data/vol37/37-18/806.html
MDJs - Rule 112- availability and temporary assignment - civil and possessory actions
http://www.pabulletin.com/secure/data/vol37/37-18/774.html
welfare - MA - Healthy Beginnings - Health Horizons - federal poverty guidelines 2007
http://www.pabulletin.com/secure/data/vol37/37-18/806.html
Tuesday, May 01, 2007
custody - support - lesbian couple, sperm donor
Jacob v. Jacob - Superior Court - April 30, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/s15032_07.pdf
Sperm donor-father of children held liable for support -- along with lesbian couple -- on grounds of equitable estoppel and by statute, 23 Pa. C.S. 4321(2). Father -- played active part in children's lives -- ordered joined as indispensable party.
Custody award of lower court confirmed, giving
- shared legal custody to biological mother and her former partner (Appellant)
- primary physical custody to biological mother
- partial physical custody to mother's former partner and biological father (separately)
http://www.courts.state.pa.us/OpPosting/Superior/out/s15032_07.pdf
Sperm donor-father of children held liable for support -- along with lesbian couple -- on grounds of equitable estoppel and by statute, 23 Pa. C.S. 4321(2). Father -- played active part in children's lives -- ordered joined as indispensable party.
Custody award of lower court confirmed, giving
- shared legal custody to biological mother and her former partner (Appellant)
- primary physical custody to biological mother
- partial physical custody to mother's former partner and biological father (separately)
Monday, April 23, 2007
custody - setting trial date w/in 180 days of filing
Dietrich v. Dietrich - Superior Court - April 20, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/S15041_07.pdf
The court held that, since a trial was not scheduled in this case within 180 days of the date the complaint was filed, as required by Pa. R.C.P 1915.4(b) http://www.pacode.com/secure/data/231/chapter1915/s1915.4.html, the order that resulted from a trial that took place more than 180 days after filing had to be vacated and the case remanded "to restore the immediately-preceding custody order....Either party may then file a petition to modify custody pursuant to Chapter 53" of the state domestic relations act, 23 Pa. CS, and Pa RCP 1915.4. Go figure.
http://www.courts.state.pa.us/OpPosting/Superior/out/S15041_07.pdf
The court held that, since a trial was not scheduled in this case within 180 days of the date the complaint was filed, as required by Pa. R.C.P 1915.4(b) http://www.pacode.com/secure/data/231/chapter1915/s1915.4.html, the order that resulted from a trial that took place more than 180 days after filing had to be vacated and the case remanded "to restore the immediately-preceding custody order....Either party may then file a petition to modify custody pursuant to Chapter 53" of the state domestic relations act, 23 Pa. CS, and Pa RCP 1915.4. Go figure.
UC - quit v. fire - "park your truck"
Bell v. UCBR - Commonwealth Court - filed 2-20-07, ordered reported 4-20-07
http://www.courts.state.pa.us/OpPosting/CWealth/out/1806CD06_4-20-07.pdf
Journeyman plumber's argument that his supervisor's use of the phrase "park your truck" meant that he had been fired was rejected. Claimant was held to have voluntarily quit when he left the job after a confrontation, during which the supervisor used the phrase.
The UCBR resolved all critical factual issues in favor of the employer, including that the supervisor's statement that "if Claimant did not like working with [the supervisor] or Employer, provided Claimant with the option to continue his employment and did not possess the immediacy and finality of a firing."
There were also findings that the claimant had made numerous prior requests to be laid off, had not questioned the supervisor about the meaning of his statement, and that continuing work was available. Claimant's testimony and argument that "park your truck" had a special meaning in the profession--you're fired--was rejected under the totality of circumstances in the case.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1806CD06_4-20-07.pdf
Journeyman plumber's argument that his supervisor's use of the phrase "park your truck" meant that he had been fired was rejected. Claimant was held to have voluntarily quit when he left the job after a confrontation, during which the supervisor used the phrase.
The UCBR resolved all critical factual issues in favor of the employer, including that the supervisor's statement that "if Claimant did not like working with [the supervisor] or Employer, provided Claimant with the option to continue his employment and did not possess the immediacy and finality of a firing."
There were also findings that the claimant had made numerous prior requests to be laid off, had not questioned the supervisor about the meaning of his statement, and that continuing work was available. Claimant's testimony and argument that "park your truck" had a special meaning in the profession--you're fired--was rejected under the totality of circumstances in the case.
Monday, April 16, 2007
PFA - withdrawal - expungement
Commonwealth v. Charnik - Superior Court - April 3, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/s69024_06.pdf
This case involves a PFA defendant's request for expungement of a) two indirect criminal contempt convictions and b) the underlying PFA order itself. The trial court and Superior Court denied both requests.
Plaintiff got a final PFA order following a contested hearing. Later, Defendant was charged with and found guilty of two (2) instances of indirect criminal contempt, for violating the final PFA order. Plaintiff later filed a petition to withdraw the PFA order, seven months after it had been entered. The trial court granted the petition. Defendant then moved to expunge both the PFA record and the record of his contempt convictions. The trial court denied both requests and the Superior Court affirmed.
conviction records - The Superior Court rejected the request to expunge the contempt convictions, stating that the "Pennsylvania legislature has strictly regulated expungement of records of convicted persons. Conviction records may be expunged only where: 1) the subject of the information reaches the age of seventy and has been free from arrest or prosecution for ten years; or 2) where the individual has been dead for three years. Criminal History Record Information Act, 18 Pa. C.S. sec. 9122(b)." (emphasis in original)
non-conviction records -
The Superior Court termed the issue of the expungement of the underlying PFA "more complicated."
It held (in n. 3) that the trial did not have jurisdiction to set aside the final PFA order seven months after it had entered it, since there had been no appeal or reconsideration of that order. Query: does this mean that a PFA plaintiff does not have the right to withdraw her/his case? See, e.g., 23 Pa. C.S. 6105(e)(2) ("Vacated or expired orders shall be purged from the registry.")
In any event , the court went on to discuss the expungement issue in detail, distinguishing between a case where a final PFA order is entered after a hearing and a case which is discontinued before the entry of a final order, e.g., where it is withdrawn after the entry of a temporary order, without any hearing and before a plaintiff has met her/his burden of proof. "Thus, when a PFA petition...has been dismissed by court order [when neither party appears at the final hearing] or the PFA proceedings never evolve beyond the temporary order stage..., expungement is proper as a matter of law" since the PFA process was "not completed" and therefore lacked the "safeguards of due process."
The court said that expungement was not proper in other circumstances and held that the decision in Carlacci v. Mazaleski, 798 A.2d 186 (Pa. 2002), should be read as "expressly limiting the remedy of expungement of PFA records to those cases where...no facts were brought forth to substantiate a finding of abuse and no final order was entered...."
In the case at bar, the request for expungement was rejected, because the final order was entered after a contested hearing at which "facts were brought forth proving the allegations of abuse by a fair preponderance of the evidence, and [the defendant] has not appealed that determination...."
Query: would the have reached the same result where the final order was entered by agreement, without any admission?
http://www.courts.state.pa.us/OpPosting/Superior/out/s69024_06.pdf
This case involves a PFA defendant's request for expungement of a) two indirect criminal contempt convictions and b) the underlying PFA order itself. The trial court and Superior Court denied both requests.
Plaintiff got a final PFA order following a contested hearing. Later, Defendant was charged with and found guilty of two (2) instances of indirect criminal contempt, for violating the final PFA order. Plaintiff later filed a petition to withdraw the PFA order, seven months after it had been entered. The trial court granted the petition. Defendant then moved to expunge both the PFA record and the record of his contempt convictions. The trial court denied both requests and the Superior Court affirmed.
conviction records - The Superior Court rejected the request to expunge the contempt convictions, stating that the "Pennsylvania legislature has strictly regulated expungement of records of convicted persons. Conviction records may be expunged only where: 1) the subject of the information reaches the age of seventy and has been free from arrest or prosecution for ten years; or 2) where the individual has been dead for three years. Criminal History Record Information Act, 18 Pa. C.S. sec. 9122(b)." (emphasis in original)
non-conviction records -
The Superior Court termed the issue of the expungement of the underlying PFA "more complicated."
It held (in n. 3) that the trial did not have jurisdiction to set aside the final PFA order seven months after it had entered it, since there had been no appeal or reconsideration of that order. Query: does this mean that a PFA plaintiff does not have the right to withdraw her/his case? See, e.g., 23 Pa. C.S. 6105(e)(2) ("Vacated or expired orders shall be purged from the registry.")
In any event , the court went on to discuss the expungement issue in detail, distinguishing between a case where a final PFA order is entered after a hearing and a case which is discontinued before the entry of a final order, e.g., where it is withdrawn after the entry of a temporary order, without any hearing and before a plaintiff has met her/his burden of proof. "Thus, when a PFA petition...has been dismissed by court order [when neither party appears at the final hearing] or the PFA proceedings never evolve beyond the temporary order stage..., expungement is proper as a matter of law" since the PFA process was "not completed" and therefore lacked the "safeguards of due process."
The court said that expungement was not proper in other circumstances and held that the decision in Carlacci v. Mazaleski, 798 A.2d 186 (Pa. 2002), should be read as "expressly limiting the remedy of expungement of PFA records to those cases where...no facts were brought forth to substantiate a finding of abuse and no final order was entered...."
In the case at bar, the request for expungement was rejected, because the final order was entered after a contested hearing at which "facts were brought forth proving the allegations of abuse by a fair preponderance of the evidence, and [the defendant] has not appealed that determination...."
Query: would the have reached the same result where the final order was entered by agreement, without any admission?
Monday, April 09, 2007
UC - hearing - continuance
Skowronek v. UCBR - Commonwealth Court - April 9, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/2150CD06_4-9-07.pdf
The referee's denial of counsel's request for a continuance of the UC hearing was affirmed and no abuse of discretion was found, under the following circumstances:
last-minute request - The request was made just one day prior to the hearing on July 20th. The hearing notice had been sent out on July 7th. The court noted that the request was less the 24 hours prior to the hearing and was faxed when the referee office was closed, at 6:30 p.m. on the last business day before the hearing. It also cited case law saying that "last-minute requests for continuances will not be viewed favorably....."
no contact information supplied - The request did not contain contact information for claimant's counsel. The contact information was at the bottom of the attorney's stationery and did not appear on the fax, having apparently been cut off.
no good cause established - The request was vague and did not establish "good cause" on it face. The attorney said only that "I will be unavailable due to a previously scheduled appointment." The court said that this request was "vague" and similar to another case, where a continuance was requested for "unspecified personal reasons." In this case, the court said that the request did "not provide sufficient information from which the referee could determine proper cause existed to continue the hearing. Given the timing of the requests and its vague nature, no abuse of discretion is apparent."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2150CD06_4-9-07.pdf
The referee's denial of counsel's request for a continuance of the UC hearing was affirmed and no abuse of discretion was found, under the following circumstances:
last-minute request - The request was made just one day prior to the hearing on July 20th. The hearing notice had been sent out on July 7th. The court noted that the request was less the 24 hours prior to the hearing and was faxed when the referee office was closed, at 6:30 p.m. on the last business day before the hearing. It also cited case law saying that "last-minute requests for continuances will not be viewed favorably....."
no contact information supplied - The request did not contain contact information for claimant's counsel. The contact information was at the bottom of the attorney's stationery and did not appear on the fax, having apparently been cut off.
no good cause established - The request was vague and did not establish "good cause" on it face. The attorney said only that "I will be unavailable due to a previously scheduled appointment." The court said that this request was "vague" and similar to another case, where a continuance was requested for "unspecified personal reasons." In this case, the court said that the request did "not provide sufficient information from which the referee could determine proper cause existed to continue the hearing. Given the timing of the requests and its vague nature, no abuse of discretion is apparent."
wages - WPCL - attorney fees
Zdrok v. Main Line Mortgage Co. - Superior Court - April 5, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a32002_06.pdf
This case was remanded for a calculation and award of attorney fees to the prevailing party below. A fee award is mandatory in an action brought under the Wage Payment and Collection Law, 43 P.S. sec. 260.9a(f), citing Oberneder v. Link Computer Corp, 696 A.2d 148, 151 (Pa. 1997). "This conclusion promotes the statute's purpose to protect employees when employers breach a contractual obligation to pay wages."
http://www.courts.state.pa.us/OpPosting/Superior/out/a32002_06.pdf
This case was remanded for a calculation and award of attorney fees to the prevailing party below. A fee award is mandatory in an action brought under the Wage Payment and Collection Law, 43 P.S. sec. 260.9a(f), citing Oberneder v. Link Computer Corp, 696 A.2d 148, 151 (Pa. 1997). "This conclusion promotes the statute's purpose to protect employees when employers breach a contractual obligation to pay wages."
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