In re Mansaray-Ruffin - 3d Circuit - June 24, 2008
http://www.ca3.uscourts.gov/opinarch/054790p.pdf
"This appeal requires us to determine whether the debtor in a Chapter 13 bankruptcy case successfully invalidated a lien on her property by providing for it as an unsecured claim in her confirmed plan, without initiating an adversary proceeding as required by the Federal Rules of Bankruptcy Procedure. We agree with the lienholder, as well as with the Bankruptcy Court and the District Court, that the answer to this question is no. Accordingly, we will AFFIRM."
This was a 2-1 decision. David Scholl represented the debtor.
Tuesday, June 24, 2008
contracts - fraud - parol evidence - integration clause
Shutter v. Herskowitz and Banks - ED Pa. - June 23, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0696P.pdf
This commercial case involved the sale of a youth hostel. There was a dispute about alleged mispresentations concerning the number of beds permitted by city ordinances. The contract, which contained an integration clause, did not address this disputed issue.
Material misrepresentation
Where a sales contract contains an integration clause which expressly confirms that all agreed terms between the parties are set out in the contract and that any modifications or changes have to be contained in a writing signed by both parties, a plaintiff claiming fraudulent inducement is precluded from offering any extrinsic evidence as to any further representations. Youndt v. First Nat’l Bank, 868 A.2d 539, 548-9 (Pa. Super. 2005)
As the Youndt court stated [and as we are sick of hearing again and again]:
“Where the parties to an agreement adopt a writing as the final and complete expression of their agreement, alleged prior or contemporaneous oral representations or agreements concerning subjects that are specifically covered by the written contract are merged in or superseded by that contract.”....Where the parties,without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract…and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms and agreements cannot be added to nor subtracted from by parol evidence.
Once a writing is determined to be the parties’ entire contract, the parol evidence rule applies and evidence of any previous oral or written negotiations or agreements involving the same subject matter as the contract is almost always inadmissible to explain or vary the terms of the contract. Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004).
Material non-disclosure
"Fraud in the inducement” exists as a narrow exception to the rule barring parol evidence when an integration clause exists. This exception may be invoked where the party proffering the extrinsic evidence contends that he executed the agreement because he was led to believe that the document contained terms that actually were omitted.
To prevail on a claim for non-disclosure of fact, a plaintiff must satisfy the following elements:
(1) One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.
(2) One party to a business transaction [emphasis added] is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated,
(a) matters known to him that the other is entitled to know because of a fiduciary or other similar relation of trust and confidence between them; and
(b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and
(c) subsequently acquired information that he knows will make untrue or misleading a previous representation that when made was true or believed to be so; and
(d) the falsity of a representation not made with the expectation that it would be acted upon, if he subsequently learns that the other is about to act in reliance upon it in a transaction with him; and
(e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.
"Basic to the transaction"
A fact “basic to the transaction” under element (e) is a fact that is assumed by the parties as a basis for the transaction itself. It is a fact that goes to the basis, or essence, of the transaction, and is an important part of the substance of what is bargained for or dealt with. Other facts may serve as important and persuasive inducements to enter into the transaction, but [do] not go to its essence. These facts may be material, but they are not basic. If the parties expressly or impliedly place the risk as to the existence of a fact on one party or if the law places it there by customor otherwise the other party has no duty of disclosure.
http://www.paed.uscourts.gov/documents/opinions/08D0696P.pdf
This commercial case involved the sale of a youth hostel. There was a dispute about alleged mispresentations concerning the number of beds permitted by city ordinances. The contract, which contained an integration clause, did not address this disputed issue.
Material misrepresentation
Where a sales contract contains an integration clause which expressly confirms that all agreed terms between the parties are set out in the contract and that any modifications or changes have to be contained in a writing signed by both parties, a plaintiff claiming fraudulent inducement is precluded from offering any extrinsic evidence as to any further representations. Youndt v. First Nat’l Bank, 868 A.2d 539, 548-9 (Pa. Super. 2005)
As the Youndt court stated [and as we are sick of hearing again and again]:
“Where the parties to an agreement adopt a writing as the final and complete expression of their agreement, alleged prior or contemporaneous oral representations or agreements concerning subjects that are specifically covered by the written contract are merged in or superseded by that contract.”....Where the parties,without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract…and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms and agreements cannot be added to nor subtracted from by parol evidence.
Once a writing is determined to be the parties’ entire contract, the parol evidence rule applies and evidence of any previous oral or written negotiations or agreements involving the same subject matter as the contract is almost always inadmissible to explain or vary the terms of the contract. Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004).
Material non-disclosure
"Fraud in the inducement” exists as a narrow exception to the rule barring parol evidence when an integration clause exists. This exception may be invoked where the party proffering the extrinsic evidence contends that he executed the agreement because he was led to believe that the document contained terms that actually were omitted.
To prevail on a claim for non-disclosure of fact, a plaintiff must satisfy the following elements:
(1) One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.
(2) One party to a business transaction [emphasis added] is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated,
(a) matters known to him that the other is entitled to know because of a fiduciary or other similar relation of trust and confidence between them; and
(b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and
(c) subsequently acquired information that he knows will make untrue or misleading a previous representation that when made was true or believed to be so; and
(d) the falsity of a representation not made with the expectation that it would be acted upon, if he subsequently learns that the other is about to act in reliance upon it in a transaction with him; and
(e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.
"Basic to the transaction"
A fact “basic to the transaction” under element (e) is a fact that is assumed by the parties as a basis for the transaction itself. It is a fact that goes to the basis, or essence, of the transaction, and is an important part of the substance of what is bargained for or dealt with. Other facts may serve as important and persuasive inducements to enter into the transaction, but [do] not go to its essence. These facts may be material, but they are not basic. If the parties expressly or impliedly place the risk as to the existence of a fact on one party or if the law places it there by customor otherwise the other party has no duty of disclosure.
appeal - final order - POs
Pennsylvania Bankers Assn. v. Department of Banking -Pa. Supreme Court - June 16, 2008
majority http://www.courts.state.pa.us/OpPosting/Supreme/out/J-31A&B-2008mo.pdf
concurring http://www.courts.state.pa.us/OpPosting/Supreme/out/J-31A&B-2008co.pdf
An order granting some and denying other of defendant's preliminary objections in plaintiff's declaratory judgment action held to be interlocutory and not a final order subject to appeal.
- As a general rule, where a plaintiff files a multi-count complaint setting forth alternative theories of recovery, an order dismissing less than all of the claim is considered to be interlocutory, because the plaintiff may still pursue the merits of the case based on another theory.
- A final order under PaRAP 341(b)(1) is one that disposes of all claims and all parties
- The plaintiff filed a multi-count complaint which raised alternative constitutional theories of relief
- The lower court's granting of POs resulted in dismissal of some but not all of plaintiff's claims
- The lower court's order did not result in the the dismissal of any parties
- The lower court order did not end the litigation against any party but merely narrowed the scope of the plaintiff's case
- Under its remaining claims, plaintiff might still obtain the relief it is seeking
majority http://www.courts.state.pa.us/OpPosting/Supreme/out/J-31A&B-2008mo.pdf
concurring http://www.courts.state.pa.us/OpPosting/Supreme/out/J-31A&B-2008co.pdf
An order granting some and denying other of defendant's preliminary objections in plaintiff's declaratory judgment action held to be interlocutory and not a final order subject to appeal.
- As a general rule, where a plaintiff files a multi-count complaint setting forth alternative theories of recovery, an order dismissing less than all of the claim is considered to be interlocutory, because the plaintiff may still pursue the merits of the case based on another theory.
- A final order under PaRAP 341(b)(1) is one that disposes of all claims and all parties
- The plaintiff filed a multi-count complaint which raised alternative constitutional theories of relief
- The lower court's granting of POs resulted in dismissal of some but not all of plaintiff's claims
- The lower court's order did not result in the the dismissal of any parties
- The lower court order did not end the litigation against any party but merely narrowed the scope of the plaintiff's case
- Under its remaining claims, plaintiff might still obtain the relief it is seeking
Friday, June 20, 2008
manuf. home installation program - final HUD rule
http://edocket.access.gpo.gov/2008/pdf/E8-13289.pdf
SUMMARY: This final rule establishes a federal manufactured home installation program, as required by section 605(c)(2)(A) of the National Manufactured Housing Construction and Safety Standards Act of 1974.
States that have their own installation programs that include the elements required by statute are permitted to administer, under their state installation programs, the new requirements established through this final rulemaking.
The new elements required by statute to be integrated into an acceptable state manufactured home installation program are: The establishment of qualified installation standards; the licensing and training of installers; and the inspection of the installation of manufactured homes.
DATES: Effective Date: October 20, 2008.
SUMMARY: This final rule establishes a federal manufactured home installation program, as required by section 605(c)(2)(A) of the National Manufactured Housing Construction and Safety Standards Act of 1974.
States that have their own installation programs that include the elements required by statute are permitted to administer, under their state installation programs, the new requirements established through this final rulemaking.
The new elements required by statute to be integrated into an acceptable state manufactured home installation program are: The establishment of qualified installation standards; the licensing and training of installers; and the inspection of the installation of manufactured homes.
DATES: Effective Date: October 20, 2008.
Thursday, June 19, 2008
federal courts - preclusion - doctrine of "virtual representation" disapproved
Taylor v. Sturgell - US Supreme Court - June 12, 2008
http://www.supremecourtus.gov/opinions/07pdf/07-371.pdf
Facts: Herrick, an antique plane enthusiast, brought an FOIA suit against the Federal Aviation Administration (FAA), seeking information about a classic plane in which he was interested; he lost the case. His friend Taylor later brought an FOIA suit seeking the same information.
The courts below held that Taylor's later suit was precluded under the doctrine of "virtual representation," based on their finding of a) an identity of interests, b) adequate representation, c) a close relationship between the parties, and d) other factors.
The U.S. Supreme Court reversed, stating that the theory of preclusion by "virtual representation" is disapproved and holding that the preclusive effects of a judgment in a federal-question case decided by a federal court should instead be determined according to the established grounds for nonparty preclusion.
The preclusive effect of a federal-court judgment is determined by federal common law, subject to due process limitations. Extending the preclusive effect of a judgment to a nonparty runs up against the "deep-rooted historic tradition that everyone should have his own day in court."
The Court has often repeated the general rule that "one is not bound by a judgment in personam in a litigation in which he is not designated a party or to which he has not beenmade a party by service of process."
The rule against nonparty preclusion is subject to exceptions, grouped for present purposes into six categories.
- a person who agrees to be bound by the determination of issues in anaction between others is bound in accordance with the agreement’s terms.
- nonparty preclusion may be based on a pre-existing substantive legal relationship between the person to be bound and a party to the judgment, e.g., assignee and assignor.
- in certain limited circumstances, a nonparty may be bound by a judgment because she was " ‘adequately represented by someone with the same interests who was a party’ " to the suit.
- a nonparty is bound by a judgment if she "assumed control" over the litigation inwhich that judgment was rendered.
- a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in litigation later brings suit as the designated representative or agent of a person who was a party to the prior adjudication.
- a special statutory scheme otherwise consistent with due process—e.g., bankruptcy proceed-ings—may expressly foreclose successive litigation by nonlitigants.
Reaching beyond these six categories, the D. C. Circuit recognized a broad "virtual representation" exception to the rule against nonparty preclusion. None of the arguments advanced by that court or the FAA justify such an expansive doctrine. The D. C. Circuit’s definition of "adequate representation" strayed from the meaning the Court has attributed to that term.
The FAA wanted the Court "to abandon altogether the attempt to delineate discrete grounds and clear rules for nonparty preclusion, contending that only an equitable and heavily fact-driven inquiry can account for all of the situations in whichnonparty preclusion is appropriate. This argument is rejected. A balancing test is at odds with the constrained approach advanced by this Court’s decisions, which have endeavored to delineate discrete, limited exceptions to the fundamental rule that a litigant is not bound by a judgment to which she was not a party."
Second, a party’s representation of a nonparty is "adequate" for preclusion purposes only if, at a minimum: (1) the interests of the nonparty and her representative are aligned, and (2) either the party understood herself to be acting in a representative capacity or theoriginal court took care to protect the nonparty’s interests. Adequate representation may also require (3) notice of the original suit to the persons alleged to have beenrepresented. In the class-action context, these limitations are implemented by FRCivP 23’s procedural safeguards. But an expansive virtual representation doctrine would recognize a common-law kind of class action shorn of these protections.
Third, a diffuse balancing approach to nonparty preclusion would likely complicate the task of district courts faced in the first instance with preclusion questions.
The Court also rejected the FAA's argument that nonparty preclusion should apply more broadly in "public-law" litigation than in "private-law"controversies, citing Richards v. Jefferson County, 517 U. S. 793 (1996). Richards said only that, for the type of public-law claims envisioned there, states were free to adopt procedures limiting repetitive litigation. The Court said that while Congress can adopt such procedures, it doesn't follow that the Court should proscribe or confine successive FOIA suits by different requesters.
In addition, the potential risk that several persons would coordinate a series of vexatious repetitive lawsuits does not justify departing from the usual nonparty preclusion rules. Stare decisis allows courts to dispose of repetitive suits in the same circuit, and even when stare decisis is not dispositive, the human inclination not towaste money should discourage suits based on claims or issues already decided.
Concerning preclusion on the basis of agency, the Court said that a mere whiff of tactical maneuvering will not suffice. Instead, principles of agency law indicate that preclusion is appropriate only if the putative agent’s conduct of the suit is subject to the control of the party who is bound by the prior adjudication.
The Court also rejected the suggestion that Taylor must bear the burden of proving he was not acting as Herrick’s agent.
http://www.supremecourtus.gov/opinions/07pdf/07-371.pdf
Facts: Herrick, an antique plane enthusiast, brought an FOIA suit against the Federal Aviation Administration (FAA), seeking information about a classic plane in which he was interested; he lost the case. His friend Taylor later brought an FOIA suit seeking the same information.
The courts below held that Taylor's later suit was precluded under the doctrine of "virtual representation," based on their finding of a) an identity of interests, b) adequate representation, c) a close relationship between the parties, and d) other factors.
The U.S. Supreme Court reversed, stating that the theory of preclusion by "virtual representation" is disapproved and holding that the preclusive effects of a judgment in a federal-question case decided by a federal court should instead be determined according to the established grounds for nonparty preclusion.
The preclusive effect of a federal-court judgment is determined by federal common law, subject to due process limitations. Extending the preclusive effect of a judgment to a nonparty runs up against the "deep-rooted historic tradition that everyone should have his own day in court."
The Court has often repeated the general rule that "one is not bound by a judgment in personam in a litigation in which he is not designated a party or to which he has not beenmade a party by service of process."
The rule against nonparty preclusion is subject to exceptions, grouped for present purposes into six categories.
- a person who agrees to be bound by the determination of issues in anaction between others is bound in accordance with the agreement’s terms.
- nonparty preclusion may be based on a pre-existing substantive legal relationship between the person to be bound and a party to the judgment, e.g., assignee and assignor.
- in certain limited circumstances, a nonparty may be bound by a judgment because she was " ‘adequately represented by someone with the same interests who was a party’ " to the suit.
- a nonparty is bound by a judgment if she "assumed control" over the litigation inwhich that judgment was rendered.
- a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in litigation later brings suit as the designated representative or agent of a person who was a party to the prior adjudication.
- a special statutory scheme otherwise consistent with due process—e.g., bankruptcy proceed-ings—may expressly foreclose successive litigation by nonlitigants.
Reaching beyond these six categories, the D. C. Circuit recognized a broad "virtual representation" exception to the rule against nonparty preclusion. None of the arguments advanced by that court or the FAA justify such an expansive doctrine. The D. C. Circuit’s definition of "adequate representation" strayed from the meaning the Court has attributed to that term.
The FAA wanted the Court "to abandon altogether the attempt to delineate discrete grounds and clear rules for nonparty preclusion, contending that only an equitable and heavily fact-driven inquiry can account for all of the situations in whichnonparty preclusion is appropriate. This argument is rejected. A balancing test is at odds with the constrained approach advanced by this Court’s decisions, which have endeavored to delineate discrete, limited exceptions to the fundamental rule that a litigant is not bound by a judgment to which she was not a party."
Second, a party’s representation of a nonparty is "adequate" for preclusion purposes only if, at a minimum: (1) the interests of the nonparty and her representative are aligned, and (2) either the party understood herself to be acting in a representative capacity or theoriginal court took care to protect the nonparty’s interests. Adequate representation may also require (3) notice of the original suit to the persons alleged to have beenrepresented. In the class-action context, these limitations are implemented by FRCivP 23’s procedural safeguards. But an expansive virtual representation doctrine would recognize a common-law kind of class action shorn of these protections.
Third, a diffuse balancing approach to nonparty preclusion would likely complicate the task of district courts faced in the first instance with preclusion questions.
The Court also rejected the FAA's argument that nonparty preclusion should apply more broadly in "public-law" litigation than in "private-law"controversies, citing Richards v. Jefferson County, 517 U. S. 793 (1996). Richards said only that, for the type of public-law claims envisioned there, states were free to adopt procedures limiting repetitive litigation. The Court said that while Congress can adopt such procedures, it doesn't follow that the Court should proscribe or confine successive FOIA suits by different requesters.
In addition, the potential risk that several persons would coordinate a series of vexatious repetitive lawsuits does not justify departing from the usual nonparty preclusion rules. Stare decisis allows courts to dispose of repetitive suits in the same circuit, and even when stare decisis is not dispositive, the human inclination not towaste money should discourage suits based on claims or issues already decided.
Concerning preclusion on the basis of agency, the Court said that a mere whiff of tactical maneuvering will not suffice. Instead, principles of agency law indicate that preclusion is appropriate only if the putative agent’s conduct of the suit is subject to the control of the party who is bound by the prior adjudication.
The Court also rejected the suggestion that Taylor must bear the burden of proving he was not acting as Herrick’s agent.
Monday, June 16, 2008
disability - onset date - medical advisor
Mamrol v. Astrue - ED Pa. - June 9, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0646P.pdf
Where there was little contemporaneous evidence about the date of onset of the claimant's disability - multiple sclerosis - the ALJ should have consulted a medical advisor, under the factors set out in SSR 83-20 and the decisions in Walton v. Halter, 243 F3d 703 (3d Cir. 2001) and Newell v. Commissioner, 347 F3d 541 (3d Cir. 2003).
Citing Newell, the court refused to draw negative inferences from claimant's infrequent or irregular doctor visits without first considering her explanations, which in this case satisfied the court.
http://www.paed.uscourts.gov/documents/opinions/08D0646P.pdf
Where there was little contemporaneous evidence about the date of onset of the claimant's disability - multiple sclerosis - the ALJ should have consulted a medical advisor, under the factors set out in SSR 83-20 and the decisions in Walton v. Halter, 243 F3d 703 (3d Cir. 2001) and Newell v. Commissioner, 347 F3d 541 (3d Cir. 2003).
Citing Newell, the court refused to draw negative inferences from claimant's infrequent or irregular doctor visits without first considering her explanations, which in this case satisfied the court.
child abuse - founded/indicated reports - right to expungement hearing
K.R. v. DPW - Commonwealth Court - June 4, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/2060CD07_6-4-08.pdf
It was proper for DPW to deny a hearing on a request for expungement of an "indicated report of abuse and enter an determination based on findings in a related dependency case, which was the basis for a "founded" report of abuse. DPW may rely on the factual findings of the trial court in a dependency adjudication to dismiss an appeal for a request for expungement.
An administrative hearing in a later expungement case would be an improper collateral attack on the factual findings in the dependency adjudication, in which proceeding the alleged abuser has a full and fair opportunity to present evidence and to cross-examine witnesses. "Due process does not require an administrative [expungement] hearing, as the material facts found in the dependency proceeding cannot be disputed."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2060CD07_6-4-08.pdf
It was proper for DPW to deny a hearing on a request for expungement of an "indicated report of abuse and enter an determination based on findings in a related dependency case, which was the basis for a "founded" report of abuse. DPW may rely on the factual findings of the trial court in a dependency adjudication to dismiss an appeal for a request for expungement.
An administrative hearing in a later expungement case would be an improper collateral attack on the factual findings in the dependency adjudication, in which proceeding the alleged abuser has a full and fair opportunity to present evidence and to cross-examine witnesses. "Due process does not require an administrative [expungement] hearing, as the material facts found in the dependency proceeding cannot be disputed."
Friday, June 13, 2008
disability - treating physician opinion - hypothetical to VE
Johnson v. Commissioner - 3rd Cir. - June 13, 2008
http://www.ca3.uscourts.gov/opinarch/072132p.pdf
The Third Circuit affirmed the denial of benefits, rejecting claimant's arguments that (a) the ALJ improperly overlooked treating physician’s opinions and (b) that the ALJ’s disability conclusion was based on the VE's response to "an incomplete hypothetical question."
The court held that the treating physician's opinion was not entitled to controlling weight because it was not well-supported by medically acceptable clinical and laboratory diagnostic techniques and was not consistent with the other substantial evidence in [the claimant's] case record. The court said that there was "overwhelming" evidence to support to ALJ's findings.
The court said that the ALJ was "entitled" to reject much of the treating physicians' evidence "without explanation" where it was "neither pertinent, relevant nor probative." In failing to cite the doctor's evidence, the court said that the ALJ implicitly rejected it. That rejection did not trigger the ALJ’s duty to give the doctor an opportunity to explain testimony that the record "overwhelming[ly] disputed."
Citing Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005), the court held that hypothetical posed to the vocational expert accurately protrayed the claimant’s impairments that were reflected in the record.
http://www.ca3.uscourts.gov/opinarch/072132p.pdf
The Third Circuit affirmed the denial of benefits, rejecting claimant's arguments that (a) the ALJ improperly overlooked treating physician’s opinions and (b) that the ALJ’s disability conclusion was based on the VE's response to "an incomplete hypothetical question."
The court held that the treating physician's opinion was not entitled to controlling weight because it was not well-supported by medically acceptable clinical and laboratory diagnostic techniques and was not consistent with the other substantial evidence in [the claimant's] case record. The court said that there was "overwhelming" evidence to support to ALJ's findings.
The court said that the ALJ was "entitled" to reject much of the treating physicians' evidence "without explanation" where it was "neither pertinent, relevant nor probative." In failing to cite the doctor's evidence, the court said that the ALJ implicitly rejected it. That rejection did not trigger the ALJ’s duty to give the doctor an opportunity to explain testimony that the record "overwhelming[ly] disputed."
Citing Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005), the court held that hypothetical posed to the vocational expert accurately protrayed the claimant’s impairments that were reflected in the record.
pro se litigants - liberal construction of pleadings
Hall-Ditchfield v. US - ED Pa. - June 10, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0643P.pdf
During the course of this pro se case concerning an allegation that the IRS wrongfully withheld plaintiff's tax refunds, the court discussed pro se litigants and said that "[b]ecause the plaintiff is pro se, the Court will construe her pleadings liberally. Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976))."
Wouldn't it be wonderful if the UCBR and Commonwealth Court had this same attitude?
http://www.paed.uscourts.gov/documents/opinions/08D0643P.pdf
During the course of this pro se case concerning an allegation that the IRS wrongfully withheld plaintiff's tax refunds, the court discussed pro se litigants and said that "[b]ecause the plaintiff is pro se, the Court will construe her pleadings liberally. Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976))."
Wouldn't it be wonderful if the UCBR and Commonwealth Court had this same attitude?
Wednesday, June 11, 2008
UC- appeal - preservation/waiver of issues
Pearson v. UCBR - ordered to be reported August 18, 2008 - Commonwealth Court -
http://www.courts.state.pa.us/OpPosting/CWealth/out/2238CD07_8-18-08.pdf
original unreported decision - June 11, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/2238CD07_6-11-08.pdf
The court rejected the Board's argument that the "Claimant failed to preserve any issues for review," in which it alleged that he "failed to specifically challenge any of the Board’s findings in his petition for review or in his statement of questions involved," and that he "waived any challenge to the evidentiary support for the Board’s findings by not addressing the issue in his appellate brief."
The court said the it "may decline to consider issues a claimant fails to raise with sufficient specificity in his petition for review. See Pa. R.A.P. 1513; Deal v. Unemployment Comp. Bd. of Review, 878 A.2d 131 (Pa. Cmwlth. 2005) " and that it "may decline to consider issues a claimant raises in the argument section of his appellate brief but fails to include in his statement of questions involved. See Pa. R.A.P. 2119(a); Leone v. Unemployment Comp. Bd. of Review, 885 A.2d 76 (Pa. Cmwlth. 2005)."
However, the court "decline[d] to apply waiver in this instance. In Claimant’s petition for review, we discern two issues preserved for argument. First, Claimant contends the Board failed to 'review all the facts. ' ....We interpret Claimant’s assertion as a challenge to the evidentiary support for the Board’s findings regarding the circumstances of Claimant’s discharge. Second, we interpret Claimant’s assertion that 'this case is not strong enough” to withhold unemployment compensation benefits as challenging whether Employer met its burden to prove it discharged Claimant for cause. Id.; see also Pa. R.A.P. 1513(d) (“The statement of objections will be deemed to include every subsidiary question fairly comprised therein.”). Because Claimant sufficiently addresses these arguments in his handwritten appellate brief, we will consider them on their merits."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2238CD07_8-18-08.pdf
original unreported decision - June 11, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/2238CD07_6-11-08.pdf
The court rejected the Board's argument that the "Claimant failed to preserve any issues for review," in which it alleged that he "failed to specifically challenge any of the Board’s findings in his petition for review or in his statement of questions involved," and that he "waived any challenge to the evidentiary support for the Board’s findings by not addressing the issue in his appellate brief."
The court said the it "may decline to consider issues a claimant fails to raise with sufficient specificity in his petition for review. See Pa. R.A.P. 1513; Deal v. Unemployment Comp. Bd. of Review, 878 A.2d 131 (Pa. Cmwlth. 2005) " and that it "may decline to consider issues a claimant raises in the argument section of his appellate brief but fails to include in his statement of questions involved. See Pa. R.A.P. 2119(a); Leone v. Unemployment Comp. Bd. of Review, 885 A.2d 76 (Pa. Cmwlth. 2005)."
However, the court "decline[d] to apply waiver in this instance. In Claimant’s petition for review, we discern two issues preserved for argument. First, Claimant contends the Board failed to 'review all the facts. ' ....We interpret Claimant’s assertion as a challenge to the evidentiary support for the Board’s findings regarding the circumstances of Claimant’s discharge. Second, we interpret Claimant’s assertion that 'this case is not strong enough” to withhold unemployment compensation benefits as challenging whether Employer met its burden to prove it discharged Claimant for cause. Id.; see also Pa. R.A.P. 1513(d) (“The statement of objections will be deemed to include every subsidiary question fairly comprised therein.”). Because Claimant sufficiently addresses these arguments in his handwritten appellate brief, we will consider them on their merits."
Saturday, June 07, 2008
tax sale - notice - posting
McCartan v. Montgomery Co. Tax Claim Bureau - Commonwealth Court - June 2, 2008 - UNPUBLISHED OPINION
http://www.courts.state.pa.us/OpPosting/CWealth/out/1162CD07_6-2-08.pdf
Held: Unverified written document about of posting was not sufficient proof of posting, in the face of uncontradicted testimony of the property owner that the property was not posted. The trial court abused its discretion by finding that the property was properly posted based solely on the unnotarized “Affidavit for Posting of Notice of Public Tax Sale” where unrebutted evidence to the contrary was submitted into the record.
Compliance with the other notice requirements of the Law does not necessarily cure a defect in posting because the posting requirement serves three purposes: to inform the taxpayer of the impending sale; to notify others whose interests in the land may be affected by the sale; and, to notify the public at large of the impending sale.
The law is well-settled in Pennsylvania that a valid tax sale requires the tax claim bureau to strictly comply with all three of the notice provisions of sec. 602 of the law, 72 P.S. §5860.602, or the sale is void. The tax claim bureau must notify the owner of the property in the following three ways: (1) publication of the tax sale at least 30 days prior to the sale; (2) notification of the sale to each owner by certified mail at least 30 days in advance of the sale; and (3) posting notice of the sale on the property at least 10 days prior to the sale. 72 P.S. §§5860.602(a), (e). Strict compliance is necessary to guard against any deprivation of property without due process of law.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1162CD07_6-2-08.pdf
Held: Unverified written document about of posting was not sufficient proof of posting, in the face of uncontradicted testimony of the property owner that the property was not posted. The trial court abused its discretion by finding that the property was properly posted based solely on the unnotarized “Affidavit for Posting of Notice of Public Tax Sale” where unrebutted evidence to the contrary was submitted into the record.
Compliance with the other notice requirements of the Law does not necessarily cure a defect in posting because the posting requirement serves three purposes: to inform the taxpayer of the impending sale; to notify others whose interests in the land may be affected by the sale; and, to notify the public at large of the impending sale.
The law is well-settled in Pennsylvania that a valid tax sale requires the tax claim bureau to strictly comply with all three of the notice provisions of sec. 602 of the law, 72 P.S. §5860.602, or the sale is void. The tax claim bureau must notify the owner of the property in the following three ways: (1) publication of the tax sale at least 30 days prior to the sale; (2) notification of the sale to each owner by certified mail at least 30 days in advance of the sale; and (3) posting notice of the sale on the property at least 10 days prior to the sale. 72 P.S. §§5860.602(a), (e). Strict compliance is necessary to guard against any deprivation of property without due process of law.
Thursday, June 05, 2008
UC - willful misconduct - physician's failure to provide medical information
Zurn Industries v. UCBR - Commonwealth Court - June 5, 2008 - UNPUBLISHED OPINION
http://www.courts.state.pa.us/OpPosting/CWealth/out/2093CD07_6-5-08.pdf
The claimant was not insubordinate and did not commit willful misconduct when his doctors failed to provide the employer with information about the claimant's functional capacity. he claimant contacted his doctors and asked them to provide the information.
As in as in Bogan v. UCBR, 447 A.2d 708 (Pa. Cmwlth. 1982) and Houff v. UCBR, 397 A.2d 42 (Pa. Cmwlth. 1979), "Claimant attempted to get the information Employer requested, but neither of his physicians provided acceptable information, at least not within the time demanded by Employer. Also, similar to Bogan, Employer was also unsuccessful in its attempt to have Claimant’s physicians specify any work restrictions. Claimant attempted to fulfill the directives of Employer but had no control over his physicians."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2093CD07_6-5-08.pdf
The claimant was not insubordinate and did not commit willful misconduct when his doctors failed to provide the employer with information about the claimant's functional capacity. he claimant contacted his doctors and asked them to provide the information.
As in as in Bogan v. UCBR, 447 A.2d 708 (Pa. Cmwlth. 1982) and Houff v. UCBR, 397 A.2d 42 (Pa. Cmwlth. 1979), "Claimant attempted to get the information Employer requested, but neither of his physicians provided acceptable information, at least not within the time demanded by Employer. Also, similar to Bogan, Employer was also unsuccessful in its attempt to have Claimant’s physicians specify any work restrictions. Claimant attempted to fulfill the directives of Employer but had no control over his physicians."
discovery - appeal - collateral order doctrine - privilege
T.M. v. Elwyn, Inc. - Superior Court - June 5, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/s66027_07.pdf
In general, discovery orders are not final, and are therefore unappealable. However, discovery orders involving privileged material are nevertheless appealable as collateral to the principal action pursuant to Pa.R.A.P. 313 (“Collateral Orders”).
A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. Pa.R.A.P. 313(b). “A discovery order is collateral only when it is separate and distinct from the underlying cause of action.”
An appeal from a discovery order raising a question of the application of a privilege is separable from the underlying issue, so long as the issue of privilege may be addressed by an appellate court without analysis of the underlying issue.
http://www.courts.state.pa.us/OpPosting/Superior/out/s66027_07.pdf
In general, discovery orders are not final, and are therefore unappealable. However, discovery orders involving privileged material are nevertheless appealable as collateral to the principal action pursuant to Pa.R.A.P. 313 (“Collateral Orders”).
A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. Pa.R.A.P. 313(b). “A discovery order is collateral only when it is separate and distinct from the underlying cause of action.”
An appeal from a discovery order raising a question of the application of a privilege is separable from the underlying issue, so long as the issue of privilege may be addressed by an appellate court without analysis of the underlying issue.
admin. law - appeal - waiver/preservation of issues - Merida v. UCBR distinguished
By an order dated June 5, 2008, this case has now been designated as an opinion, which will be reported and published.
See http://www.courts.state.pa.us/OpPosting/CWealth/out/1912CD07_6-5-08.pdf
Thanks to David Hill of Philadelphia Legal Assistance for preparing and filing the motion which got this case reported
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Ductmate Industries v. UCBR - Commonwealth Court - March 12, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1912CD07_6-5-08.pdf
previously reported at 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.
See http://www.courts.state.pa.us/OpPosting/CWealth/out/1912CD07_6-5-08.pdf
Thanks to David Hill of Philadelphia Legal Assistance for preparing and filing the motion which got this case reported
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Ductmate Industries v. UCBR - Commonwealth Court - March 12, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1912CD07_6-5-08.pdf
previously reported at 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.
consumer - payday lending - Consumer Discount Company Law - Loan Interest and Protection Law
Dept. of Banking v. NCAS of Delaware - Pa. Supreme Court - May 29, 2008
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-97-2008mopdf
Stating that it is "well established that Commonwealth public policy prohibits usurious lending, a prohibition that has been recognized for well over 100 years, " the state supreme court affirmed the decision of the Commonwealth Court, 931 A.2d 771 (2007) http://www.aopc.org/OpPosting/CWealth/out/519MD06_7-31-07.pdf in an action brought by the state Department of Banking to prevent the unlicensed defendant lenders from charging consumers fees that exceeded applicable state limits under the Consumer Discount Company Act, 7 P.S. §§6201-6219 (the “CDCA”), and the Loan Interest and Protection Law, 41 P.S. §§101-605 (the “LIPL”).
The court determined that Advance America, a payday lender, was subject to the licensing requirements of the CDCA, since the effective interest rate in its transactions -- more than 300% -- was much higher than the statutory limit of 6%.
Although the stated contract interest rate was 5.98% - just below the 6% limit prescribed by the CDCA - AA also charged consumers $149.95 per month as a "participation fee", which the court said was a charge under the statute that had to be include in the aggregate charges and thus was part of the interest rate determination, because the participation fee was a "necessary condition" of any credit advance by AA and was a "charge inextricably related to the amount actually loaned or advanced."
The court rejected the lender's argument that Delaware law should apply to the case by virtue of a choice-of-law provision in the contract with borrowers, stating that:
a) the case was brought by the state Dept. of Banking, not any individual borrower. The Department was not a party to or bound by the terms of any such contract. The "Department instituted this action pursuant to its police power, not only to protect consumers who had already entered into contracts with Appellant, but more broadly on behalf of the general public to enforce the policy protecting them from usurious lending....When viewed in this light,...the choice-of-law provision in Appellant’s contracts cannot bind the Department in this action to enforce Pennsylvania public policy."
b) even if the contractual provision applied, the Court "has recognized that choice-of-law agreements can be avoided when the terms offend Commonwealth public policy even in disputes between contracting parties....Pennsylvania courts have consistently held that the prohibition of exploitative lending is a fundamental public policy that cannot be circumvented."
c) Although some Pennsylvania statutes permit certain lenders to charge more than the statutory 6% rate under the Loan Interest and Protection Law, 41 P.S. sec. 101 et seq., "violation of any of these statutory provisions will itself offend the public policy of the Commonwealth, as established by the General Assembly."
The court held that its "interpretation harmonizes the remedial purposes of the statute by preventing lenders from charging 'extortionate' fees, while at the same time charging a legal interest rate, thus closing a wide loophole for usurious practices" and agreed with the argument of CLS, an amicus in the case, that this lending vehicle was "an example of the industry’s latest scheme to avoid usury laws....This Court has acknowledged that 'usury is generally accompanied by subterfuge and circumvention of one kind or another to present the color of legality.' ... We agree with the Department, and the amici that Appellant’s interpretation of the statute would undermine the usury laws’ purpose: 'to protect the citizenry of this Commonwealth from being exploited at the hands of unscrupulous individuals seeking to circumvent the law at the expense of unsuspecting borrowers who may have no other avenue to secure financial backing.'"
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-97-2008mopdf
Stating that it is "well established that Commonwealth public policy prohibits usurious lending, a prohibition that has been recognized for well over 100 years, " the state supreme court affirmed the decision of the Commonwealth Court, 931 A.2d 771 (2007) http://www.aopc.org/OpPosting/CWealth/out/519MD06_7-31-07.pdf in an action brought by the state Department of Banking to prevent the unlicensed defendant lenders from charging consumers fees that exceeded applicable state limits under the Consumer Discount Company Act, 7 P.S. §§6201-6219 (the “CDCA”), and the Loan Interest and Protection Law, 41 P.S. §§101-605 (the “LIPL”).
The court determined that Advance America, a payday lender, was subject to the licensing requirements of the CDCA, since the effective interest rate in its transactions -- more than 300% -- was much higher than the statutory limit of 6%.
Although the stated contract interest rate was 5.98% - just below the 6% limit prescribed by the CDCA - AA also charged consumers $149.95 per month as a "participation fee", which the court said was a charge under the statute that had to be include in the aggregate charges and thus was part of the interest rate determination, because the participation fee was a "necessary condition" of any credit advance by AA and was a "charge inextricably related to the amount actually loaned or advanced."
The court rejected the lender's argument that Delaware law should apply to the case by virtue of a choice-of-law provision in the contract with borrowers, stating that:
a) the case was brought by the state Dept. of Banking, not any individual borrower. The Department was not a party to or bound by the terms of any such contract. The "Department instituted this action pursuant to its police power, not only to protect consumers who had already entered into contracts with Appellant, but more broadly on behalf of the general public to enforce the policy protecting them from usurious lending....When viewed in this light,...the choice-of-law provision in Appellant’s contracts cannot bind the Department in this action to enforce Pennsylvania public policy."
b) even if the contractual provision applied, the Court "has recognized that choice-of-law agreements can be avoided when the terms offend Commonwealth public policy even in disputes between contracting parties....Pennsylvania courts have consistently held that the prohibition of exploitative lending is a fundamental public policy that cannot be circumvented."
c) Although some Pennsylvania statutes permit certain lenders to charge more than the statutory 6% rate under the Loan Interest and Protection Law, 41 P.S. sec. 101 et seq., "violation of any of these statutory provisions will itself offend the public policy of the Commonwealth, as established by the General Assembly."
The court held that its "interpretation harmonizes the remedial purposes of the statute by preventing lenders from charging 'extortionate' fees, while at the same time charging a legal interest rate, thus closing a wide loophole for usurious practices" and agreed with the argument of CLS, an amicus in the case, that this lending vehicle was "an example of the industry’s latest scheme to avoid usury laws....This Court has acknowledged that 'usury is generally accompanied by subterfuge and circumvention of one kind or another to present the color of legality.' ... We agree with the Department, and the amici that Appellant’s interpretation of the statute would undermine the usury laws’ purpose: 'to protect the citizenry of this Commonwealth from being exploited at the hands of unscrupulous individuals seeking to circumvent the law at the expense of unsuspecting borrowers who may have no other avenue to secure financial backing.'"
Wednesday, June 04, 2008
custody - jurisdiction - continuing jurisdiction
Billhime v. Billhime - Superior Court - June 4, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/A06024_08.pdf
This case involves Mother's petition for Pennsylvania courts to relinquish jurisdiction to Florida courts. The initial custody order was entered in Pennsylvania. In a later order, the court granted custody to the mother, who lives in Florida, where the children had been living for several years.
The UCCJEA, 23 Pa.C.S.A. § 5422(a)(1), provides that the courts of this Commonwealth will exercise exclusive continuing jurisdiction to modify child custody orders originally entered here unless the child, or a child and at least one parent (or a person acting as a parent), no longer have a “significant connection” with Pennsylvania. For the child, the lack of a continuing “significant connection” with the Commonwealth is established if the court finds that substantial evidence concerning the child’s care, protection, training and personal relationships is no longer available here.
The trial court refused Mother's petition, relying almost exclusively on Father’s continuing “significant connection” with Pennsylvania. However, the court did not focus in any detail on whether the children continue to maintain a “significant connection” to Pennsylvania, noting only that they visit Pennsylvania three times per year and spend time with their father, friends and paternal grandfather. There was little evidence regarding the continuing availability in Pennsylvania of “substantial evidence concerning the child’s “care, protection, training and personal relationships,” as is expressly required by sec . 5422(a)(1) of the UCCJEA. In fact, essentially all of the evidence presented at the evidentiary hearing demonstrates that information relating to the children’s welfare is now located in the state of Florida.
In the absence of exclusive continuing jurisdiction, a Pennsylvania court may nevertheless modify a child custody order it previously issued if it has jurisdiction to make an initial determination under section 5421 of the UCCJEA. 23 Pa.C.S.A. § 5422(b). Because the trial court did not address the applicability of section 5421 in connection with its initial consideration of Mother’s motion to relinquish jurisdiction, we remand for consideration and decision on this issue.
In the event the trial court determines that it lacks jurisdiction to make an initial custody determination pursuant to section 5421, it should grant Mother’s motion and relinquish jurisdiction of custody matters relating to these two children to the courts of the state of Florida. Order reversed. Case remanded.
http://www.courts.state.pa.us/OpPosting/Superior/out/A06024_08.pdf
This case involves Mother's petition for Pennsylvania courts to relinquish jurisdiction to Florida courts. The initial custody order was entered in Pennsylvania. In a later order, the court granted custody to the mother, who lives in Florida, where the children had been living for several years.
The UCCJEA, 23 Pa.C.S.A. § 5422(a)(1), provides that the courts of this Commonwealth will exercise exclusive continuing jurisdiction to modify child custody orders originally entered here unless the child, or a child and at least one parent (or a person acting as a parent), no longer have a “significant connection” with Pennsylvania. For the child, the lack of a continuing “significant connection” with the Commonwealth is established if the court finds that substantial evidence concerning the child’s care, protection, training and personal relationships is no longer available here.
The trial court refused Mother's petition, relying almost exclusively on Father’s continuing “significant connection” with Pennsylvania. However, the court did not focus in any detail on whether the children continue to maintain a “significant connection” to Pennsylvania, noting only that they visit Pennsylvania three times per year and spend time with their father, friends and paternal grandfather. There was little evidence regarding the continuing availability in Pennsylvania of “substantial evidence concerning the child’s “care, protection, training and personal relationships,” as is expressly required by sec . 5422(a)(1) of the UCCJEA. In fact, essentially all of the evidence presented at the evidentiary hearing demonstrates that information relating to the children’s welfare is now located in the state of Florida.
In the absence of exclusive continuing jurisdiction, a Pennsylvania court may nevertheless modify a child custody order it previously issued if it has jurisdiction to make an initial determination under section 5421 of the UCCJEA. 23 Pa.C.S.A. § 5422(b). Because the trial court did not address the applicability of section 5421 in connection with its initial consideration of Mother’s motion to relinquish jurisdiction, we remand for consideration and decision on this issue.
In the event the trial court determines that it lacks jurisdiction to make an initial custody determination pursuant to section 5421, it should grant Mother’s motion and relinquish jurisdiction of custody matters relating to these two children to the courts of the state of Florida. Order reversed. Case remanded.
appeals - MDJ appeals - appeal v. certiorari
Gladstone Partners v. Overland Enterprise - Superior Court - June 2, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/A06037_08.pdf
Appeal de novo and writ of certiorari are different, separate, and mutually exclusive.
These remedies do not and cannot exist simultaneously. MDJ Rule 1015 expressly prohibits a litigant from availing themselves of both an appeal de novo and certiorari review. Rule 1015 clearly requires a litigant desiring to challenge a magisterial district court’s judgment to choose either to appeal de novo or to seek certiorari review.
The purpose of an appeal de novo is to give a litigant a new trial without reference to the record established in the minor court, whereas certiorari connotes a review of the record established in the minor court with an eye to cure defects in procedure and legal error....
The Pennsylvania Constitution does not guarantee the remedy of certiorari review, but, rather, the Judicial Code permits the courts of common pleas to issue writs of certiorari as they had done at common law, 42 Pa.C.S.A. § 934. As such, the appellate courts of this Commonwealth have described certiorari review as an alternative to an appeal de novo.
The remedy of appeal de novo takes precedence over certiorari review due to the guarantee of the right to appeal found in Art. V § 9 of the Pennsylvania Constitution. Thus, the simultaneous filing of an appeal de novo and a praecipe for writ of certiorari will result in the striking of the writ if it is later granted by the court of common pleas.
The time for appeal is not extended while certiorari proceeding are pending
Courts cannot extend appeal deadlines without showing a breakdown in the processes of the court or fraud that would justify an appeal nunc pro tunc. The MDJ Rules state the time limits for seeking appeal de novo and certiorari review with specificity.
A party challenging the subject matter or procedural jurisdiction of an MDJ via writ of certiorari may do so at any time after entry of the court’s judgment; otherwise, the time limit for seeking certiorari review is 30 days following entry of judgment. Pa.R.C.P.M.D.J. 1009B.
On the other hand, a party appealing de novo is constrained by a 30-day time limitation from the entry of judgment or, in the case of judgments of possession of residential real property, a 10-day time limitation from the entry of judgment. Pa.R.C.P.M.D.J. 1002A, 1002B.
Therefore, to find that the grant of a writ of certiorari tolls the time for taking appeal de novo would permit the courts of common pleas to extend the time for taking appeal de novo to a potentially-limitless period.
No good cause for late filing - MDJ Rules 1002A and 1002B permit the filing of an appeal beyond the stated time periods with leave of court and upon good cause shown. In the present case, the appellant did not request the leave of court or demonstrate cause as to why their appeal was filed beyond the 30-day time limit. Accordingly, we need not consider this grace proviso in the present case.
http://www.courts.state.pa.us/OpPosting/Superior/out/A06037_08.pdf
Appeal de novo and writ of certiorari are different, separate, and mutually exclusive.
These remedies do not and cannot exist simultaneously. MDJ Rule 1015 expressly prohibits a litigant from availing themselves of both an appeal de novo and certiorari review. Rule 1015 clearly requires a litigant desiring to challenge a magisterial district court’s judgment to choose either to appeal de novo or to seek certiorari review.
The purpose of an appeal de novo is to give a litigant a new trial without reference to the record established in the minor court, whereas certiorari connotes a review of the record established in the minor court with an eye to cure defects in procedure and legal error....
The Pennsylvania Constitution does not guarantee the remedy of certiorari review, but, rather, the Judicial Code permits the courts of common pleas to issue writs of certiorari as they had done at common law, 42 Pa.C.S.A. § 934. As such, the appellate courts of this Commonwealth have described certiorari review as an alternative to an appeal de novo.
The remedy of appeal de novo takes precedence over certiorari review due to the guarantee of the right to appeal found in Art. V § 9 of the Pennsylvania Constitution. Thus, the simultaneous filing of an appeal de novo and a praecipe for writ of certiorari will result in the striking of the writ if it is later granted by the court of common pleas.
The time for appeal is not extended while certiorari proceeding are pending
Courts cannot extend appeal deadlines without showing a breakdown in the processes of the court or fraud that would justify an appeal nunc pro tunc. The MDJ Rules state the time limits for seeking appeal de novo and certiorari review with specificity.
A party challenging the subject matter or procedural jurisdiction of an MDJ via writ of certiorari may do so at any time after entry of the court’s judgment; otherwise, the time limit for seeking certiorari review is 30 days following entry of judgment. Pa.R.C.P.M.D.J. 1009B.
On the other hand, a party appealing de novo is constrained by a 30-day time limitation from the entry of judgment or, in the case of judgments of possession of residential real property, a 10-day time limitation from the entry of judgment. Pa.R.C.P.M.D.J. 1002A, 1002B.
Therefore, to find that the grant of a writ of certiorari tolls the time for taking appeal de novo would permit the courts of common pleas to extend the time for taking appeal de novo to a potentially-limitless period.
No good cause for late filing - MDJ Rules 1002A and 1002B permit the filing of an appeal beyond the stated time periods with leave of court and upon good cause shown. In the present case, the appellant did not request the leave of court or demonstrate cause as to why their appeal was filed beyond the 30-day time limit. Accordingly, we need not consider this grace proviso in the present case.
Monday, June 02, 2008
attorney fees - EAJA - paralegal time - prevailing market rates
Richlin Security Services v. Chertoff - US. Supreme Court - June 2, 2008
http://www.supremecourtus.gov/opinions/07pdf/06-1717.pdf
The question presented in this case is whether the Equal Access to Justice Act (EAJA), 5 U. S. C. §504(a)(l) (2006 ed.) and 28 U. S. C. §2412(d)(1)(A) (2000 ed.), allows a prevailing party in a case brought by or against the Government to recover fees for paralegal services at the market rate for such services or only at their cost to the party’s attorney.
Held: A prevailing party that satisfies EAJA’s other requirements may recover its paralegal fees from the Government at prevailing market rates.
EAJA, like §1988, must be interpreted as using the term "attorney . . . fees" to reach fees for paralegal services as well as compensation for the attorney’s personal labor, making "self-evident"that Congress intended that term to embrace paralegal fees.
Since §504 generally provides for recovery of attorney’s fees at "prevailingmarket rates," it follows that paralegal fees must also be recoverable at those rates.
http://www.supremecourtus.gov/opinions/07pdf/06-1717.pdf
The question presented in this case is whether the Equal Access to Justice Act (EAJA), 5 U. S. C. §504(a)(l) (2006 ed.) and 28 U. S. C. §2412(d)(1)(A) (2000 ed.), allows a prevailing party in a case brought by or against the Government to recover fees for paralegal services at the market rate for such services or only at their cost to the party’s attorney.
Held: A prevailing party that satisfies EAJA’s other requirements may recover its paralegal fees from the Government at prevailing market rates.
EAJA, like §1988, must be interpreted as using the term "attorney . . . fees" to reach fees for paralegal services as well as compensation for the attorney’s personal labor, making "self-evident"that Congress intended that term to embrace paralegal fees.
Since §504 generally provides for recovery of attorney’s fees at "prevailingmarket rates," it follows that paralegal fees must also be recoverable at those rates.
Friday, May 30, 2008
contracts - good faith and fair dealing
Spadoni v. Easton Area School District - ED Pa. - May 22, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0587P.pdf
Pennsylvania does not recognize an independent cause of action for breach of the covenant of good faith and fair dealing. Temple Univ. Hosp., Inc. v. Group Health, Inc., 2006 WL 146426, at *5 (E.D. Pa. Jan. 12, 2006) (Pratter, J.) (quoting Lyon Fin. Servs. v. Woodlake Imaging, LLC, 2005 WL 331695, at *8 (E.D. Pa. Feb. 9, 2005) (Diamond, J.)).
“There may be an express or implied covenant of good faith and fair dealing in any contract between the parties, but if so, its breach is a breach of contract rather than an independent breach of duty of good faith and fair dealing.” Temple Univ. Hosp. Inc., 2006 WL 146426, at *5 (quoting Engstrom v. John Nuveen & Co., 668 F. Supp. 953, 958 (E.D. Pa. 1987)).
Because breach of the covenant of good faith and fair dealing is a breach of contract action, a complaint must allege the proper elements of a breach of contract action to survive a motion to dismiss. Temple Univ. Hosp., 2006 WL 146426, at *6 (citing McAllister v. Royal Carribean Cruises, Ltd., 2003 WL 23192102, at *4 (E.D. Pa. Sept. 30, 2003) (Kauffman, J.)).
http://www.paed.uscourts.gov/documents/opinions/08D0587P.pdf
Pennsylvania does not recognize an independent cause of action for breach of the covenant of good faith and fair dealing. Temple Univ. Hosp., Inc. v. Group Health, Inc., 2006 WL 146426, at *5 (E.D. Pa. Jan. 12, 2006) (Pratter, J.) (quoting Lyon Fin. Servs. v. Woodlake Imaging, LLC, 2005 WL 331695, at *8 (E.D. Pa. Feb. 9, 2005) (Diamond, J.)).
“There may be an express or implied covenant of good faith and fair dealing in any contract between the parties, but if so, its breach is a breach of contract rather than an independent breach of duty of good faith and fair dealing.” Temple Univ. Hosp. Inc., 2006 WL 146426, at *5 (quoting Engstrom v. John Nuveen & Co., 668 F. Supp. 953, 958 (E.D. Pa. 1987)).
Because breach of the covenant of good faith and fair dealing is a breach of contract action, a complaint must allege the proper elements of a breach of contract action to survive a motion to dismiss. Temple Univ. Hosp., 2006 WL 146426, at *6 (citing McAllister v. Royal Carribean Cruises, Ltd., 2003 WL 23192102, at *4 (E.D. Pa. Sept. 30, 2003) (Kauffman, J.)).
disability - severity - remand
Bishop v. Astrue
http://www.paed.uscourts.gov/documents/opinions/08D0583P.pdf
I agree with the ALJ that there is little, if any, medical evidence supporting the level of disability alleged by plaintiff. I also respect that the ALJ’s credibility determination is entitled to deference.
However, I am bound by Third Circuit law which provides that benefits may be denied at step two of the sequential evaluation only if there are less than slight abnormalities which would have no more than a minimal effect on an individual's ability to work and that step two is designed to screen out only groundless claims.
In this case, resolving any doubt in favor of the applicant, as I must under the law, I find that based upon the record evidence, Bishop’s claim is not groundless and, thus, the ALJ legally erred when he found that Bishop’s trigeminal neuralgia/primary trochlear headache was not a severe impairment. Id. As a result, this case must be remanded to the ALJ to determine whether Bishop is disabled due to her severe impairment of trigeminal neuralgia/primary trochlear headache and other non-severe impairment.
Although due to the ALJ’s legal error this case must be remanded, I hesitate, for based on the record, I find it highly unlikely that Bishop’s impairments are severe enough to preclude all work. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)... ; Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)....However, it is not my duty to make the ultimate disability determination, as that decision is reserved solely for the Commissioner. 20 C.F.R. § 404.1527(e)(1). My role is limited to determining whether the decision of the ALJ is legally sufficient and supported by substantial evidence....Therefore, the case must be remanded in order for the ALJ to supplement his findings in a manner consistent with this opinion.
http://www.paed.uscourts.gov/documents/opinions/08D0583P.pdf
I agree with the ALJ that there is little, if any, medical evidence supporting the level of disability alleged by plaintiff. I also respect that the ALJ’s credibility determination is entitled to deference.
However, I am bound by Third Circuit law which provides that benefits may be denied at step two of the sequential evaluation only if there are less than slight abnormalities which would have no more than a minimal effect on an individual's ability to work and that step two is designed to screen out only groundless claims.
In this case, resolving any doubt in favor of the applicant, as I must under the law, I find that based upon the record evidence, Bishop’s claim is not groundless and, thus, the ALJ legally erred when he found that Bishop’s trigeminal neuralgia/primary trochlear headache was not a severe impairment. Id. As a result, this case must be remanded to the ALJ to determine whether Bishop is disabled due to her severe impairment of trigeminal neuralgia/primary trochlear headache and other non-severe impairment.
Although due to the ALJ’s legal error this case must be remanded, I hesitate, for based on the record, I find it highly unlikely that Bishop’s impairments are severe enough to preclude all work. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)... ; Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)....However, it is not my duty to make the ultimate disability determination, as that decision is reserved solely for the Commissioner. 20 C.F.R. § 404.1527(e)(1). My role is limited to determining whether the decision of the ALJ is legally sufficient and supported by substantial evidence....Therefore, the case must be remanded in order for the ALJ to supplement his findings in a manner consistent with this opinion.
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