UC - willful misconduct - theft of employer property - legal entitlement

Mancine v. UCBR - Commonwealth Court - April 15, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/2144CD07_4-15-08.pdf

The court reversed the UCBR and held that a claimant's use of free drink coupons, alleged to be only for the use of patients and their families, did not constitute willful misconduct. The employer did not satisfy its "burden of proving that Claimant had no legal entitlement to use the coupons."

The court distinguished other employer-property cases, notably

- Gibson v. UCBR, 760 A2d 492, where unlike here, the employer had a written policy prohibiting the removal of any employer property, including scrap and trash

- Temple Univ. v. UCBR, 772 A.2d 416, where the claimant could not overcome the lack of legal entitlement to pay for hours he did not work, in spite of the approval of his supervisor, who suggested that he list the hours on his pay records.

In order to satisfy its "burden to show that a claimant has engaged in willful misconduct by violating a rule against theft, an employer has the burden to establish that a claimant did not have legal entitlement to the subject property."

In this case, the coupons on their face contained no prohibition or limitation on the user or transferability of the coupons. The claimant apparently got the coupons from a patient, although the manner in which the claimant got them was not at issue.

In addition, the employer provided no proof that it had told employees that they could not use the coupons, or that the coupons were only for patients and their families. The testimony of an employer witness that such limitations existed was "insufficient to support a conclusion that Claimant had no legal entitlement to use the coupons."

consumer - state UTPCPL - deceptive conduct - pleading

Chiles v. Ameriquest Mortgage Co. - ED Pa. - March 17, 2008

http://www.paed.uscourts.gov/documents/opinions/08d0302p.pdf

" [T]he Court recognizes that the requirements for fraud under the catchall provision are in flux in Pennsylvania state and federal courts. Several courts require a plaintiff to prove all elements of common law fraud. when asserting a claim under the catch-all provision.... Cf. Christopher, 2006 U.S. Dist. LEXIS 2255, *9-10 (Plaintiff must plead all elements of common law fraud only if alleging fraud, not deceptive conduct under UTPCPL.) In Christopher, the court interpreted the inclusion of the term “deceptive” into the catch-all provision as relaxing the standard of proof such that actual fraud need not be proved. Id. The Pennsylvania Supreme Court has not yet addressed this issue.

The UTPCPL must be construed liberally. See Keller v. Volkswagen of Am., Inc., 733 A.2d 642, 646 (Pa. Super. 1999). This Court will therefore adopt the view that in order for the addition of the terms “or deceptive” to be given effect, all elements of common law fraud need not be proven if Plaintiff alleges deceptive conduct. "

consumer - TILA - yield spread premium

Abbott v. Washington Mutual Finance Co. - ED Pa. - March 20, 2008

http://www.paed.uscourts.gov/documents/opinions/08d0326p.pdf

Amount held to be a yield spread premium, not part of a finance charge, and thus not requiring TILA disclosure.

VA benefit claims - proposed rule

http://edocket.access.gpo.gov/2008/pdf/E8-7898.pdf

SUMMARY: The Department of Veterans Affairs (VA) proposes to reorganize and rewrite in plain language its regulations involving VA benefits claims. These revisions are proposed as part of VA’s rewrite and reorganization of all of its compensation and pension rules in a logical, claimant-focused, and userfriendly format. The intended effect of the proposed revisions is to assist claimants and VA personnel in locating and understanding these regulations involving VA benefits claims.

DATES: Comments must be received by VA on or before June 13, 2008.

license suspension - refusal to take breath test

Riley v. DOT - Commonwealth Court - April 14, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/145CD07_4-14-08.pdf

License suspended where officer "observed the odor of alcohol." DOT proved all elements under implied consent law, 75 Pa. C.S. 1547, under which DOT must establish that the licensee: (1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical control of the movement of the vehicle while under influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might result in a license suspension.

admin. law - appeal - waiver/preservation of issues

Ductmate Industries v. UCBR - UNREPORTED OPINION - March 12, 2008

http://www.courts.state.pa.us/opposting/cwealth/out/1912cd07_3-12-08.pdf

Claimant did not waive any issue when, in appealing from the referee decision, he said only that he "did not agree" with it, and UCBR reversed and granted benefits. The initial determination and referee decision both dealt with a single issue, whether claimant's acts constituted willful misconduct.

The employer argued that claimant's reasons were not specific enough, citing Merida v. UCBR, 543 A.2d 593 (Pa. Cmwlth. 1988) and 34 Pa. Code 101.81(c)(4) http://www.pacode.com/secure/data/034/chapter101/s101.81.html both of which require an appellant to state the "reasons for appeal."

The court noted that in Merida there were two hearings. The employer did not attend the intial hearing, and the Board ordered a second one, during which the claimant raised a number of issues. The referee ruled against the claimant, but did not rule on the propriety of the second hearing. The claimant appealed to the Board, making only the general objection that he did not agree with the referee's decision.

The Board affirmed the referee, and the claimant appealed to the Commonwealth Court, arguing only that the Board erred in ordering the second hearing. The court determined that the claimant had waived the issue of the propriety of the second hearing, since he did not specifically bring it to the attention of the Board, which "could not be charged with scouring the record to determine every possible appeal."

In this case, however, there was only one issue - whether claimant's acts constituted willful misconduct. That was the issue decided in both the initial UCSC determination and the Board decision. Citing Black Lick Trucking Co. v. UCBR, 6677 A.2d 454 (Pa. Cmwlth. 1995), the court held that an "inartful appeal" claiming only general disagreement with the referee decision does not prevent the UCBR from addressing the issues ruled on by both the job center/UCSC and referee. The referee should review all issues in the initial determination, and the Board should review all issues the referee considered -- the precise case here.

drivers license - suspension - ARD approved then withdrawn when underlying charges withdrawn

Ryan v. Dept. of Transporation - Commowealth Court - April 9, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/1248CD07_4-9-08.pdf

Licese suspension improper where, although driver was initially admitted to the ARD program, that action was later withdrawn when the charges were withdrawn by DA due to questions about the propriety of the officer having administered a breath test.

MA - overpayments - transfer of assets - presumption - opportunity to rebut

Gilroy v. DPW - Commonwealth Court - April 8, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/1537CD07_4-9-08.pdf

Rcipient of MA benefits transferred assets of husband/decedent's estate to decedent's daughters, because she'd ony been married to decedent for very short period of time. OIG/DPW sought repayment of benefits already paid.

Recipient's attempt to rebut the ineligibility presumption through testimony that she transferred those assets to Decedent’s daughters, not to ensure her eligibility for MA benefits, but solely because she only had been married to Decedent for a short period of time and did not think it fair to take from Decedent's estate.

DPW regs permit an applicant to ebut the presumption that such a transfer was for the purpose of making herself eligible for MA benefits. An applicant can do this at various times during the application process, including at a prehearing conference, at a hearing or through a court order. 55 Pa. Code §178.106(1). However, in finding Gilroy ineligible for benefits, the ALJ refused to consider Gilroy’s attempt to rebut the presumption, holding that there never is an exception to the ineligibility provisions of 55 Pa. Code §178.104(d). The ALJ’s holding is contrary to well established case law and to DPW’s regulations, which clearly give the applicant an opportunity to rebut the presumption and, thus, constitutes an error of law.

Unfortunately, because the ALJ did not consider the possibility that Gilroy could overcome the ineligibility presumption, he made no findings of fact or credibility determinations pertaining to that issue. Accordingly, we vacate, and we remand the matter to DPW to remand to the ALJ to decide whether Gilroy rebutted the presumption of ineligibility and to make the necessary findings of fact and credibility determinations to support that


__._,_.___

contracts/torts - gist-of-the-action doctrine

Rahemtulla v. Hassam - MD Pa. - March 24, 2008

http://www.pamd.uscourts.gov/opinions/mannion/05v0198-02.pdf

Courts are extremely cautious about permitting tort recovery based on contractual breaches.

"'While it is true that the mere existence of a contract between parties does not foreclose the possibility of a tort action arising between them, it does not follow that a plaintiff should be allowed to sue in tort for damages arising out of a breach of contract. To hold otherwise would be to blur one reasonably bright line between contract and tort, and hence introduce needless confusion into the judicial process, a step that Pennsylvania’s state and federal courts alike have refused to take.

"[T]he 'gist of the action' doctrine precludes plaintiffs from recasting ordinary breach of contract claims into tort claims, where such tort claims '(1) aris[e] solely from a contract between the parties; (2) when the duties allegedly breached were created and grounded in the contract itself; (3) where the liability stems from a contract; or (4) when the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract.'"

The conceptual distinction between a breach of contract claim and a tort claim is that the former arises out of “breaches of duties imposed by mutual consensus agreements between particular individuals,” while the latter aries out of “breaches of duties imposed by law as a matter of social policy.”....“In other words...,a claim should be limited to a contract claim when the parties’ obligations are defined by the terms of the contracts, and not by the larger social policies embodied by the law of torts.”

contracts - parol evidence - Toy v. Metropolitan Life, etc.

Rahemtulla v. Hassam - MD Pa. - March 24, 2008

http://www.pamd.uscourts.gov/opinions/mannion/05v0198-02.pdf

"It has long been held that the parol evidence rule bars evidence of prior representations in a fully integrated written agreement.....Where a written contract contains an integration clause, “the law declares the writing to not only be the best, but the only evidence of [the parties’] agreement....”

The purpose of an integration clause is to give effect to the parol evidence rule: “Thus, the written contract, if unambiguous, must be held to express all of the negotiations, conversations, and agreements made prior to its execution, and neither oral testimony, nor prior written agreements, or other writings, are admissible to explain or vary the terms of the contract.”....
Therefore, where a party claims fraud in the inducement and the written contract is fully integrated, the parol evidence rule works to bar evidence of any representations made about any matter covered by the agreement prior to the contract’s execution. Id. However, in a situation commonly referred to as fraud in the execution, where the party proffering the evidence contends that certain terms were supposed to be included in the contract, but were omitted because of fraud, accident, or mistake, then parol evidence is admissible. Id. The Supreme Court of Pennsylvania has concisely stated this rule of law:

[W]hile parol evidence may be introduced based on a party’s claim that there was fraud in the execution of a contract, i.e., that a term was fraudulently omitted from the contract, parol evidence may not be admitted based on a claim that there was fraud in the inducement of the contract, i.e., that an opposing party made false representations that induced the complaining party to agree to the contract. Toy v. Metro. Life Ins. Co., 928 A.2d 186, 205 (Pa. 2007) (internal citations omitted); see also Dayhoff, Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1300 (3d Cir. 1996).

The rationale behind this rule is “that a party cannot justifiably rely upon prior oral representations and then sign a contract containing terms that refute the alleged prior oral representations.” ....Otherwise, “the parol evidence rule would become a mockery, because all a party to the written contract would have to do to avoid, modify, or nullify it would be to aver (and prove) that the false representations were fraudulently made."

In this case...plaintiffs are not alleging fraud in the execution, which only applies to situations where the parties agree to include certain terms in an agreement, but such terms were omitted because of fraud, accident, or mistake.....Moreover, the plaintiffs failed to aver that [defendant's] alleged prior oral representations were fraudulently omitted from the integrated written contract; they should have insisted that the alleged representations made by Mr. Hassam be set forth in their integrated written agreements. [emphasis added]

[W]here a party asserts he relied on any understanding, promises, representations, or agreements made prior to the execution of the written contract or lease, that party should have protected himself by incorporating into the written agreement those promises or representations upon which he now relies)....[A plaintiff should protect] himself by incorporating the representations upon which he now purports to rely” into the agreement, because in light of the integration clause, he “cannot be bound by any representations other than those expressly contained within the Agreement”)....

insurance - denial - bad faith

Brown v. Liberty Mutual Fire Insurance Co. - ED Pa. - March 26, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0350P.pdf

Defendant-insurer's motion for summary judgment on plaintiff's claim of bad faith under
Pennsylvania’s Bad Faith Statute, 42 Pa. C.S.A. § 8371, denied because of genuine issues of material fact.

The Bad Faith Statute, 42 Pa. C.S.A. § 8371, provides that in an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may

1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.
2) Award punitive damages against the insurer
3) Assess court costs and attorney fees against the insurer.

Bad faith on the part of an insurer is any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such a refusal be fraudulent. Leo v. State Farm Mutual Automobile Insurance Co., 1996 WL 37827 (E.D. Pa. Jan. 25, 1996).

Bad faith imports a dishonest purpose through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith. Id. Bad faith must be proven by clear and convincing evidence. Smolinsky v. State Farm Insurance Co., 2000 WL 1201384 (E.D. Pa. Aug. 8, 2000).

To recover a plaintiff must show that the defendant did not have a reasonable basis for denying benefits under the policy and that the defendant knew or recklessly disregarded its lack of a reasonable basis for denying the claim. Leo, 1996 WL 37827 at 2.

bankruptcy - students loan

Sperazza v. Univ. of Maryland - ED Pa. - March 24, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0345P.pdf

The district court affirmed the bankruptcy court's denial of appellant's request to discharge his student loans. The facts are not sympatheric, but the case has a short, clear discussion of the issues, as follows:

The Bankruptcy Code does not allow a Chapter 7 debtor to discharge educational loans “unless excepting such debt from discharge . . . will impose an undue hardship on the debtor and the debtor’s dependents.” 11 U.S.C. § 523(a).

In order to establish undue hardship, a debtor must demonstrate that: (1) based on his current income and expenses, he cannot maintain a minimal standard of living for himself and his dependents if forced to repay the loans; (2) additional circumstances indicate that the debtor’s status is likely to persist for a significant portion of the loan repayment period; and (3) the debtor has made good faith efforts to repay the loans. Pa. Higher Educ. Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 304-05 (3d Cir. 1995) (adopting standard set forth in Brunner v. N.Y. State Higher Educ. Servs. Corp. (In re Brunner), 831 F.2d 395, 396 (2d Cir. 1987)).

It is the debtor’s burden to establish each prong of the Faish test by a preponderance of the evidence, all prongs must be satisfied, and if “one of the elements of the test is not proven, the inquiry must end there, and the student loans cannot be discharged.” Brightful v. Pa. Higher Educ. Assistance Agency (In re Brightful), 267 F.3d 324, 327-28 (3d Cir. 2001).

This “test must be strictly construed,” and “equitable concerns or other extraneous factors not contemplated by the test may not be imported into the analysis.” Id. at 328. Strict application of the Faish factors “safeguards the financial integrity of the student loan program by not permitting debtors who have obtained the substantial benefits of an education funded by taxpayer dollars to dismiss their obligations merely because repayment of the borrowed funds would require some major personal and financial sacrifices.” Id.

state appellate procedure - interlocutory appeal - PRAP 341

Druot et al. v. Coulter et al. - Superior Court - March 26, 2008

http://www.courts.state.pa.us/OpPosting/Superior/out/m02001_08.pdf

Plaintiffs' appeal of order granting summary to defendants on all counts of plaintiffs' complaint was not a final, appealable order under P.R.A.P. 341 http://www.pacode.com/secure/data/210/chapter3/s341.html where the trial court order did not dispose of any of the defendants' counterclaims.

Where an order determines "fewer than all of the claims" in the case, PRAP Rule 341(c) allows an interlocutory appeal "only upon an express determination that an immediate appeal would facilitate resolution of the entire case."

SSA - immune system disorders - revised medical criteria for evaluation

Revised Medical Criteria for Evaluating Immune System Disorders - effective June 16, 2008

http://a257.g.akamaitech.net/7/257/2422/01jan20081800/edocket.access.gpo.gov/2008/pdf/E8-5023.pdf

SSA - HIV - proposed regs for evaluating

http://a257.g.akamaitech.net/7/257/2422/01jan20081800/edocket.access.gpo.gov/2008/pdf/E8-5022.pdf

UC - voluntary quit - same-sex couple

Procito v. UCBR - Commonwealth Court - March 17, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/2402CD06_3-17-08.pdf

The majority held that the claimant, a partner in a same-sex relationship, "failed to meet her burden to prove that she terminated her job for a necessitous and compelling cause....As a consequence,....the Court need not address any constitutional issues that [claimant] raised inasmuch as this case certainly can be decided on non-constitutional grounds." The majority clearly wanted to side-step the issue of whether the follow-the-spouse doctrine could be applied to a same-sex couple.

One concurring judge (Pelligrini) agreed that "there is no evidence that Claimant's domestic situation caused her to leave her employment and relocate....All evidence indicates that her domestic partner moved....to be with her son in college because she wanted to, not because they heed to. This is clearly a personal choice and not a domestic reason that constitutes a necessitous and compelling reason to justify the award of benefits.

Another concurring judge (Leavitt) felt that under Wallace v. UCBR, 393 A.2d 43 (Pa. Cmwlth. 1978), the Court was "free to change [the follow-the-spouse] doctrine to include couples that are unmarried, whether by choice or compulsion" but that the General Assembly and not judges should make "the hard policy decisions on eligibility." She believes that Wallace was wrongly decided.

Judge Friedman dissented, noting first that while saying that the follow-the-spouse doctrine did not apply to unmarried couples, the majority actually applied it in this case in finding that the claimant failed to proved good cause in moving to another state to be with her partner. In addition, she would hold there was a "clear violation of Claimant's due process rights" by the referee's refusal to hear evidence about claimant's good cause to leave her job, thus denying her a "full and fair opportunity to be heard on the matter." (emphasis in original). She felt that the "UCBR's failure to apply the 'following spouse doctrine' because Claimant is not married to her domestic partner violates Claimant's equal protection rights," citing Wallace.

contracts- duty of good faith & fair dealing - no separate cause of action

Morgan Truck Body v. Integrated Logistics Solutions - ED Pa. - March 20, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0320P.pdf

Although the UCC, 13 Pa. C.S. 1203, and common law, as reflected in the Restatement of Contracts, sec. 205, impose a duty of good faith and fair dealing in the performance of a contract, Creeger Brick & Building Supply Inc. v. Mid-State Bank & Trust Co., 560 A.2d 151, 153 (Pa. Super. 1989), "Pennsylvania does not recognize this theory as an independent cause of action."

federal courts - interlocutory appeals

Photomedex, Inc. v. St. Paul Fire & Marine Ins. Co. - ED Pa. - March, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0321P.pdf

Federal courts have discretion to certify an issue for immediate appeal under 28 U.S.C. § 1292(b), when the court issues a non-final order and certifies that
a) the order involves a controlling question of law
b) as to which there is substantial ground for difference of opinion,
c) and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.

The court must certify that all three factors are met. Even then, the district court should exercise its discretion to certify only in exceptional cases. The Third Circuit has held that the certification procedure is not mandatory; permission to appeal is wholly within the discretion of the courts, even if the § 1292(b)] criteria are present.

In this case, the defendant failed to show a “substantial ground for difference of opinion” under the second element. A substantial ground for difference of opinion “refers to the legal standard applied in the decision for which certification is sought and whether other courts have substantially differed in applying that standard.”

contracts - implied-in fact

Morgan Truck Body v. Integrated Logistics Solutions - ED Pa. - March 20, 2008

http://www.paed.uscourts.gov/documents/opinions/08D0320P.pdf

Under Pennsylvania law, “an implied-in-fact contract is a true contract arising from mutual agreement and intent to promise, but where the agreement and promise have not been verbally expressed. The agreement is inferred from the conduct of the parties."

"Contracts are often spoken of as express or implied. The distinction involves, however, no difference in legal effect, but lies merely in the mode of manifesting assent. Just as assent may be manifested by words or other conduct, sometimes including silence, so intention to make a promise may be manifested in language or by implication from other circumstances, including course of dealing or usage of trade or course of performance. Restatement (Second) of Contracts § 4 cmt. a; see also Rissi v. Cappella, 918 A.2d 131, 140 (Pa. Super. 2007)

"When parties continue to conduct business following the expiration of their written agreement, the law may recognize their relationship as an 'implied-in-fact' contract."

attorney fees - civil rights - sec. 1988 - "prevailing party"

People Against Police Violence v. City of Pittsburgh - 3d Cir. - March 17, 2008

http://www.ca3.uscourts.gov/opinarch/064457p.pdf

Plaintiffs were the "prevailing party" under 42 USC sec. 1988 where they achieved relief on the merits of their claims in the form of a preliminary injunction, which was dissolved only after the defendant city passed a new ordinance, even though the case was dismissed by agreement of all parties without a final judgment in favor of plaintiffs. The City never pressed the court to reach a judgment on the merits and eventually acceded to all of plaintiffs' claims.

This decision is in line with that of "nearly every Court of Appeals to have the addressed the issue." The great majority of the courts have held that "relief obtained via a preliminary injunction can, under appropriate circumstances, render a party 'prevailing.'" Such circumstances existed here, where "(1) the trial court, based upon a finding of a likelihood of plaintiffs’ success on the merits, entered a judicially enforceable order granting plaintiffs virtually all the relief they sought, thereby materially altering the legal relationship between the parties; (2) the defendant, after opposing interim relief, chose not to appeal from that order and remained subject to its restrictions for a period of over two years; and (3) the defendant ultimately avoided final resolution of the merits of plaintiffs’ case by enacting new legislation giving plaintiffs virtually all of the relief sought in the complaint." The final resolution of the case involved the required "judicial imprimatur" required by Supreme Court precedent.

"At the end of the proceedings, plaintiffs had achieved precisely what they sought on an enduring basis, and that success was a result of plaintiffs’ efforts and court-enforced victories rather than defendant’s voluntary actions."