Newark Parents Assn. v. Newark Public Schools - 3d Circuit - November 20, 2008
http://www.ca3.uscourts.gov/opinarch/074002p.pdf
In a case of "first impression in the federal courts," the 3d Circuit affirmed a decision concluding that Congress did not confer on individuals an enforceable right of action under the No Child Left Behind Act (“NCLBA” or the “Act”), 20 U.S.C. § 6301 et seq., and 42 U.S.C. § 1983.
The court dismissed an action by parents against the school system, alleging that because the Newark public school system failed to live up to its obligations under certain provisions of the Act, appellants are entitled to privately enforce those provisions.
Thursday, November 20, 2008
UC - willful misconduct - bank employee
Stezzi v. UCBR - Cmwlth. Court - Novembwer 20, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/913CD08_11-20-08.pdf
Claimant, a bank tell/manager, was held to be guilty of willful misconduct for putting four night deposit bags in a waste basket, in violation of employer procedures about processing money bags, and causing a monetary loss to employer of about $6275.00.
The court found "no merit in Claimant’s contention that the Board held her to a higher standard of conduct in violation of Grieb v. UCBR, 573 Pa. 594, 827 A.2d 422 (2003), that she was held to a higher standard than a management employee who must inspect teller areas for items of value left unprotected at the end of the day.
Contrary to Claimant’s assertion, the Board’s statement simply recognizes every employer may rightfully expect its employees will not place bags of money in trash cans. The statement represents an alternate legal theory for its decision to deny benefits. See Tongel v. UCBR, 501 A.2d 716 (Pa. Cmwlth. 1985) (work rule violation need not be shown where the behavior standard is obvious, and the employee's conduct is so inimical to the employer's best interests that discharge is a natural result).
The court rejected tha argument that "the Board’s conclusion that her conduct fell below the standards of behavior an employer may rightfully expect of its employees is ludicrous because her trash can was in a secured area.....It does not matter the general area may have been secure. Employer has specific rules in place for handling night deposit bags, which Claimant admittedly violated."
The court has "repeatedly held a bank employee’s failure to follow an employer’s procedure may constitute willful misconduct so as to disqualify the employee from receiving benefits. See Fusaro v. UCBR, 483 A.2d 1013 (Pa. Cmwlth. 1984) (teller discharged for intentionally failing to follow employer’s check cashing policies ineligible for benefits); Adolphus v. UCBR, 471 A.2d 152 (Pa. Cmwlth. 1984) (teller discharged for intentionally failing to follow check cashing, money order, and cash counting procedures ineligible for benefits); Schmutz v. UCBR, 459 A.2d 1378 (Pa. Cmwlth. 1983) (teller discharged for intentionally failing to enter all transactions into computer in violation of bank procedures ineligible for benefits).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/913CD08_11-20-08.pdf
Claimant, a bank tell/manager, was held to be guilty of willful misconduct for putting four night deposit bags in a waste basket, in violation of employer procedures about processing money bags, and causing a monetary loss to employer of about $6275.00.
The court found "no merit in Claimant’s contention that the Board held her to a higher standard of conduct in violation of Grieb v. UCBR, 573 Pa. 594, 827 A.2d 422 (2003), that she was held to a higher standard than a management employee who must inspect teller areas for items of value left unprotected at the end of the day.
Contrary to Claimant’s assertion, the Board’s statement simply recognizes every employer may rightfully expect its employees will not place bags of money in trash cans. The statement represents an alternate legal theory for its decision to deny benefits. See Tongel v. UCBR, 501 A.2d 716 (Pa. Cmwlth. 1985) (work rule violation need not be shown where the behavior standard is obvious, and the employee's conduct is so inimical to the employer's best interests that discharge is a natural result).
The court rejected tha argument that "the Board’s conclusion that her conduct fell below the standards of behavior an employer may rightfully expect of its employees is ludicrous because her trash can was in a secured area.....It does not matter the general area may have been secure. Employer has specific rules in place for handling night deposit bags, which Claimant admittedly violated."
The court has "repeatedly held a bank employee’s failure to follow an employer’s procedure may constitute willful misconduct so as to disqualify the employee from receiving benefits. See Fusaro v. UCBR, 483 A.2d 1013 (Pa. Cmwlth. 1984) (teller discharged for intentionally failing to follow employer’s check cashing policies ineligible for benefits); Adolphus v. UCBR, 471 A.2d 152 (Pa. Cmwlth. 1984) (teller discharged for intentionally failing to follow check cashing, money order, and cash counting procedures ineligible for benefits); Schmutz v. UCBR, 459 A.2d 1378 (Pa. Cmwlth. 1983) (teller discharged for intentionally failing to enter all transactions into computer in violation of bank procedures ineligible for benefits).
Monday, November 17, 2008
UC - credibility; fact-finding; refusal to obey employer directive
Penn-Delco Schoot District v. UCBR - Cmwlth. Court - November 17, 2008 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/537CD08_11-17-08.pdf
1) The UCBR is the ultimate arbiter of credibility and fact-finding, citing Peak v. UCBR, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985). and Treon v. UCBR, 499 Pa. 455, 453 A.2d 960 (1982)
2) "[E]xcessive absenteeism, when properly reported and justified, is not willful misconduct, and illness is a proper justification. See Sprague v. UCBR, 647 A.2d 675, 680 (Pa. Cmwlth. 1994) (six properly reported absences based on illness did not constitute willful misconduct); Tri-Corp v. UCBR, 432 A.2d 1158, 1159–60 (Pa. Cmwlth. 1981) (properly reported two week leave for illness did not constitute willful misconduct).
3) “Where an employee is discharged for refusing or failing to follow an employer’s directive, both the reasonableness of the demand and the reasonableness of the employee's refusal must be examined.” Dougherty v. UCBR, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).
Where the action of the employee is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. UCBR, 450 A.2d 305 (Pa. Cmwlth. 1982). “In other words, if there was ‘good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.” Id. at 308.
Here, it is undisputed that Employer scheduled a mandatory meeting with Claimant, and Claimant did not attend....The Board determined Employer’s mandatory meeting directive was unreasonable in light of Claimant’s medical documentation which had not yet released her to return to work. The Board also concluded Claimant had good cause to refuse Employer’s unreasonable request.
The Board’s determinations are supported by substantial evidence. Accordingly, we affirm the Board’s conclusion that Claimant’s failure to attend the mandatory meeting did not constitute willful misconduct. See Thompson v. UCBR, 723 A.2d 743, 744 (Pa. Cmwlth. 1999) (finding claimant’s illness to be good cause for violating employer rule requiring absent employees to find replacement workers); Kindrew v. UCBR, 388 A.2d 801, 802–03 (Pa. Cmwlth. 1978) (finding an employer’s requirement that claimant attend work or face dismissal unreasonable if claimant were ill).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/537CD08_11-17-08.pdf
1) The UCBR is the ultimate arbiter of credibility and fact-finding, citing Peak v. UCBR, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985). and Treon v. UCBR, 499 Pa. 455, 453 A.2d 960 (1982)
2) "[E]xcessive absenteeism, when properly reported and justified, is not willful misconduct, and illness is a proper justification. See Sprague v. UCBR, 647 A.2d 675, 680 (Pa. Cmwlth. 1994) (six properly reported absences based on illness did not constitute willful misconduct); Tri-Corp v. UCBR, 432 A.2d 1158, 1159–60 (Pa. Cmwlth. 1981) (properly reported two week leave for illness did not constitute willful misconduct).
3) “Where an employee is discharged for refusing or failing to follow an employer’s directive, both the reasonableness of the demand and the reasonableness of the employee's refusal must be examined.” Dougherty v. UCBR, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).
Where the action of the employee is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. UCBR, 450 A.2d 305 (Pa. Cmwlth. 1982). “In other words, if there was ‘good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.” Id. at 308.
Here, it is undisputed that Employer scheduled a mandatory meeting with Claimant, and Claimant did not attend....The Board determined Employer’s mandatory meeting directive was unreasonable in light of Claimant’s medical documentation which had not yet released her to return to work. The Board also concluded Claimant had good cause to refuse Employer’s unreasonable request.
The Board’s determinations are supported by substantial evidence. Accordingly, we affirm the Board’s conclusion that Claimant’s failure to attend the mandatory meeting did not constitute willful misconduct. See Thompson v. UCBR, 723 A.2d 743, 744 (Pa. Cmwlth. 1999) (finding claimant’s illness to be good cause for violating employer rule requiring absent employees to find replacement workers); Kindrew v. UCBR, 388 A.2d 801, 802–03 (Pa. Cmwlth. 1978) (finding an employer’s requirement that claimant attend work or face dismissal unreasonable if claimant were ill).
Friday, November 14, 2008
UC- appeal - timeliness
Carson Helicopters v. UCBR - Cmwlth. Court - November 14, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/253CD08_11-14-08.pdf
Employer should have been granted permission to appeal nunc pro tunc where the referee decision was erroneously dated 5 days prior to the date of the actual referee. Both dates were listed on the Referee Decision. In addition, the Board should have accepted the employer's hearsay testimony at the hearing, because it was corroborated by official documents - the referee decision and envelope in which it was mailed.
Moreover, under any state of facts, it is uncontroverted that the Board received Employer’s appeal before the statutory 15-day deadline had expired. "The Board’s conduct in this manner was not only sloppy but shocking in its disregard of its statutory responsibilities."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/253CD08_11-14-08.pdf
Employer should have been granted permission to appeal nunc pro tunc where the referee decision was erroneously dated 5 days prior to the date of the actual referee. Both dates were listed on the Referee Decision. In addition, the Board should have accepted the employer's hearsay testimony at the hearing, because it was corroborated by official documents - the referee decision and envelope in which it was mailed.
Moreover, under any state of facts, it is uncontroverted that the Board received Employer’s appeal before the statutory 15-day deadline had expired. "The Board’s conduct in this manner was not only sloppy but shocking in its disregard of its statutory responsibilities."
Wednesday, November 12, 2008
UC - vol. quit - sexual harassment
Willow Valley Retirement Community v. UCBR - Cmwlth. Court - 11-12-08 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/188CD08_11-12-08.pdf
Claimant testified that the ER vice-president/COO told her that she "needed to show more emotion and use the feminine side of her personality in order to improve her business relationships." This evidence was unchallenged by the employer.
The court held that these comments "are sexually discriminatory and degrading on their face. Claimant reasonably understood his comments to mean that she should be less strong and play up her sexuality in the performance of her job." The comments "went beyond conduct that must be tolerated in a work place and produced circumstances which would compel a reasonable person to terminate employment."
Claimant acted reasonably in resigning, without going through regular complaint channels. She "believed that there was no recourse to remedy the situation," since the vice president/COO was the second highest person in the organization.
Her attempt to rescind her resignation after the employer took steps to replace her is irrelevant, because this was a voluntary quit with cause of a necessitous and compelling reason. Because "Claimant has demonstrated circumstances which produced real and substantial pressure to terminate employment, Claimant only needed to show that she made a reasonable attempt to preserve her employment relationship or show that such action was futile to remain eligible for benefits."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/188CD08_11-12-08.pdf
Claimant testified that the ER vice-president/COO told her that she "needed to show more emotion and use the feminine side of her personality in order to improve her business relationships." This evidence was unchallenged by the employer.
The court held that these comments "are sexually discriminatory and degrading on their face. Claimant reasonably understood his comments to mean that she should be less strong and play up her sexuality in the performance of her job." The comments "went beyond conduct that must be tolerated in a work place and produced circumstances which would compel a reasonable person to terminate employment."
Claimant acted reasonably in resigning, without going through regular complaint channels. She "believed that there was no recourse to remedy the situation," since the vice president/COO was the second highest person in the organization.
Her attempt to rescind her resignation after the employer took steps to replace her is irrelevant, because this was a voluntary quit with cause of a necessitous and compelling reason. Because "Claimant has demonstrated circumstances which produced real and substantial pressure to terminate employment, Claimant only needed to show that she made a reasonable attempt to preserve her employment relationship or show that such action was futile to remain eligible for benefits."
real property - tax sale - notice
Popple v. Luzerne Co. Tax Claim Bureau - Cmwlth. Court - November 12, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2224CD07_11-12-08.pdf
Former owners (F/O) objected to tax sale nearly four years after it took place. The court held that due process was satisfied and F/Os were "personally served" and had actual notice of tax sale under 72 P.S. §5860.602 where
- the notice was sent to the "care of" address listed on the deed and
- the address was the same as two businesses (including a realty co.) which they owned
- was signed for by a person with the same last name, as their agent, who had many times signed for mail for the F/Os
"[A]ctual notice of a pending tax sale waives strict compliance with statutory notice require-ments, and technical deficiencies in those notice requirements do not invalidate a tax sale." Stanford-Gale v. Tax Claim Bureau, 816 A.2d 1214, 1217 (Pa. Cmwlth. 2003) "[A]ctual notice is such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put him upon inquiry." Sabbeth v. Tax Claim Bureau, 714 A.2d 514, 517 (Pa. Cmwlth. 1998).
Here, the court considered the "totality of the circumstances," including that that"Bureau sent notice to the address for the grantees indicated on the deed, and it was signed for by someone with the same last name who was permitted by the Post Office to receive certified mail at this post office box, who indicated his capacity as 'Agent' and who signed for certified mail addressed to the [F/Os] on other occasions. As a result, the Court concludes that the Bureau followed common sense business practices and that the [former owners] had implied actual notice...."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2224CD07_11-12-08.pdf
Former owners (F/O) objected to tax sale nearly four years after it took place. The court held that due process was satisfied and F/Os were "personally served" and had actual notice of tax sale under 72 P.S. §5860.602 where
- the notice was sent to the "care of" address listed on the deed and
- the address was the same as two businesses (including a realty co.) which they owned
- was signed for by a person with the same last name, as their agent, who had many times signed for mail for the F/Os
"[A]ctual notice of a pending tax sale waives strict compliance with statutory notice require-ments, and technical deficiencies in those notice requirements do not invalidate a tax sale." Stanford-Gale v. Tax Claim Bureau, 816 A.2d 1214, 1217 (Pa. Cmwlth. 2003) "[A]ctual notice is such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put him upon inquiry." Sabbeth v. Tax Claim Bureau, 714 A.2d 514, 517 (Pa. Cmwlth. 1998).
Here, the court considered the "totality of the circumstances," including that that"Bureau sent notice to the address for the grantees indicated on the deed, and it was signed for by someone with the same last name who was permitted by the Post Office to receive certified mail at this post office box, who indicated his capacity as 'Agent' and who signed for certified mail addressed to the [F/Os] on other occasions. As a result, the Court concludes that the Bureau followed common sense business practices and that the [former owners] had implied actual notice...."
Monday, November 10, 2008
mortgage - particular debt v. open-ended; rules of prof. conduct do not create cause of action
Weiss & Associates v. Tulloch - Superior Court - October 30, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56033_08.pdf
Plaintiff law firm took several mortgages to secure payment of attorney fees by defendant. Plaintiff got a portion of the proceeds on two properties, then foreclosed on a third for alleged ongoing liability for attorney fees by defendants.
Held, the mortgage on the third property was not an open-ended one but a "formal documents of a specific character that should be strictly construed" to cover payments of a motrgage that covered only a specific advance of funds and nor more. Here, neither than note nor the mortgage indicated coverage of future attorney fees.
Judgment for plaintiff vacated and case remanded for entry of judgment for defendant.
Defendant's claim that plaintiff's violation of the rules of professional conduct, concerning conflicts of interest, was rejected. The rules address grounds for disciplinary action against attorneys and are not substantive law. A violation of the rules does not create a cause of action.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s56033_08.pdf
Plaintiff law firm took several mortgages to secure payment of attorney fees by defendant. Plaintiff got a portion of the proceeds on two properties, then foreclosed on a third for alleged ongoing liability for attorney fees by defendants.
Held, the mortgage on the third property was not an open-ended one but a "formal documents of a specific character that should be strictly construed" to cover payments of a motrgage that covered only a specific advance of funds and nor more. Here, neither than note nor the mortgage indicated coverage of future attorney fees.
Judgment for plaintiff vacated and case remanded for entry of judgment for defendant.
Defendant's claim that plaintiff's violation of the rules of professional conduct, concerning conflicts of interest, was rejected. The rules address grounds for disciplinary action against attorneys and are not substantive law. A violation of the rules does not create a cause of action.
Thursday, November 06, 2008
Home Improvement Consumer Protection Act (HICPA) - summary
Summary of Home Improvement Consumer Protection Act (HICPA)
Act 132 of 2008; Act of October 17, 2008- SB 100, PN 2484 - effective July 1, 2009
A. § 2 - Definitions – highlights
• Covers repair, replacement, demolition, construction, painting, HVAC, etc.
• Protects only private residences
• Protects only primary residence, if owner has three or more residences
• Protects only owner or those authorized to act on owner’s behalf
• Total cash price must be more than $500
• New home construction not covered
B. § 3 - Contractor Registration with Bureau of Consumer Protection
• Registration required before doing any work or holding out as “contractor”
• Public access to registration information – toll-free number
• No HICPA licenses can be granted to licensees under the Secondary Mortgage Loan Act, 7 P.S. §6601 et seq., or the Mortgage Banker/Brokers and Consumer Equity Protection Act, 63 P.S. §456.101 et seq.
C. § 4 - Registration information
Contractors must provide the following information to the Bureau of Consumer Protection:
• Name(s), address, driver’s license #, federal employer ID #, SSN
• Prior relevant criminal offenses (fraud, etc.)
• Prior bankruptcies – last 10 years
• Civil judgments related to home improvement (H/I) transaction
• Proof of liability insurance – personal injury ($50k), property damage ($5k)
D. § 7(a) - Home Improvement Contracts – not valid/enforceable, unless...
• Written, legible, signed by all parties
• ID info on all contractors, subcontractors
• Contains the entire agreement
• Description of work, materials, specs
• No changes without written change order
• Sales price, down payments
• Contractor agreement to maintain liability insurance
• Toll-free number to Bureau of Consumer Protection
• Notice of right of rescission w/o penalty w/in 3 business days of signing
• Copy of completed contract to owner at time of execution
E. § 7(e) - Voidable clauses – voidable by the owner
• Hold-harmless clause
• Waiver of any local/state/federal safety or building code requirement
• Confession of judgment clause
• Waiver of right to jury trial
• Assignment of wages
• Agreement not to assert any claim or defense
• Grant of attorney fees or costs to contractor
• Release of liability for collections of payments, repossession
• Waiver of rights under HICPA
• Automatic/recurring renewal provision (w/exceptions)
F. § 7(f) - Home improvement retailer contracts (HIRC)
• Covers retailers (undefined) with >$50M net worth who do not perform home improvements
• H/I retailer shall comply with HICPA contract requirements (sec. 7 of SB 100)
• HIRCs not valid or enforceable, unless in writing with all of following:
▫ name, address, phone of retailer
▫ information about person signing for retailer
▫ complies with most provisions in (D), above
G. § 7(g) - Contractor right of equitable recovery
• Nothing in HICPA precludes contractor from recovery of payment
• For work performed
• Based on reasonable value of services requested by the owner, if
• Contractor has complied with (D), above, and
• Court determines it would be “inequitable” to deny such recovery
H. § 7(e) - Arbitration clause
• Nothing in this act shall preclude a court from setting aside an arbitration clause on any basis permitted under Pennsylvania law.”
• If the contract contains an arbitration clause, it shall meet the following requirements or be deemed void upon motion of either party
▫ text of clause must be in capital letters
▫ 12 pt. bold-face type
▫ on separate page from rest of contract
▫ separate line for each party to show assent to be bound
▫ not effective unless both parties sign and date
▫ shall clearly state whether decision is binding or appealable to court
▫ shall state whether facts/documents/decision are confidential
• This provision might well be pre-empted by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. See e.g., Gay v. CreditInform, 511 F.3d 369 (3d Cir. 2007).
I. § 8(a) - Home Improvement Fraud is a crime
A person commits “home improvement fraud” if with the intent to defraud, or, injure anyone, or with the knowledge that he is facilitating fraud or injury by anyone, the actor:
• Makes a false/misleading statement to encourage a person to enter into a H/I contract, or to justify an increase in a previously agreed upon price; or
• Receives an advance payment and fails to perform the contract when specified, and fails to return the payment. Exception: force majeure, labor strike, etc.; or
• Misrepresents or conceals identifying contractor ID information – while soliciting a person to enter into an agreement; or
• Damages property to induce a person to enter into a contract; or
• Falsely represents a government affiliation to induce entry into a contract; or
• Misrepresents an item as a special order; or
• Alters a H/I contract or payment agreement without the consumer’s consent; or
• Publishes a false or deceptive advertisement, in violation of relevant state law about advts.
J. § 8(b), (c), (d) - Prosecution of Home Improvement Fraud
• Grading – M-1 or felony, depending on $, age of victim, priors etc.
• Penalties may include revocation/suspension of H/I contractor certificate
• DAs have authority to investigate and start prosecutions
• State Atty. Genl. can investigate/prosecute multi-county violators
K. § 9 - Prohibited Acts
No person shall:
• Fail to register, as required
• Fail to refund money w/in 10 days of request for refund, if all the following apply
▫ no substantial work has been performed at time of request
▫ more than 45 days have elapsed since starting date in contract
• Accept a certificate of completion or the like, knowing that it is false or work isn’t complete
• Knowingly use a false proof of performance in order to make/accept an assignment, or get/grant credit or loan or right to receive payment under an H/I contract
• Abandon or fail to perform a H/I contract, without justification (e.g., nonpayment)
• Materially deviate from plans/specs, without signed/dated change order, with prices
• Be involved in financing, knowing that the H/I contract states higher than actual price
• Advertise or offer to perform a H/I contract if the person does not intend to accept or perform the contract at the advertised price
• Demand or received any payment before the contract is signed
• Receive a deposit of more than 1/3 of the contract price (contracts of more than $1,000)
• For a salesman to fail to account for/remit a payment to a contractor whom s/he represents
• Change liability or identifying information, after the contract is entered into, in a fraudulent or deceptive manner likely to cause confusion or misunderstanding, without advising the owner in writing within 10 days of any such change.
L. § 10 – Unfair Trade Practices & Consumer Protection Law (UTPCPL)
• A violation of any provisions of HICPA shall be deemed a violation of the UTPCPL.
• Nothing in HICPA shall preclude an owner from exercising a right under the UTPCPL.
M. § 11 – Regulations
The Bureau of Consumer Protection may adopt rules and regulations to carry out HICPA.
N. § 12 – Pre-emption of local registration
• Registration – registration under HICPA precludes other fees/licensing/registration
• Building permits – Local govt. can require building permits and reasonable permit fee
• Local govt. responsibilities remain under Pa. Construction Code and Worker’s Comp. Law
• No effect on trade licensing standards (plumber, electrician, etc.)
• No effect on local regs. for liability insurance adopted before 01-06 and in effect on 07-09
O. § 13 – Exemptions - HICPA does not apply to local, state or federal government
P. § 14 – Repeal - All inconsistent acts are repealed.
prepared by:
Donald Marritz, staff attorney
Regional Housing Legal Services
October 31, 2008
Act 132 of 2008; Act of October 17, 2008- SB 100, PN 2484 - effective July 1, 2009
A. § 2 - Definitions – highlights
• Covers repair, replacement, demolition, construction, painting, HVAC, etc.
• Protects only private residences
• Protects only primary residence, if owner has three or more residences
• Protects only owner or those authorized to act on owner’s behalf
• Total cash price must be more than $500
• New home construction not covered
B. § 3 - Contractor Registration with Bureau of Consumer Protection
• Registration required before doing any work or holding out as “contractor”
• Public access to registration information – toll-free number
• No HICPA licenses can be granted to licensees under the Secondary Mortgage Loan Act, 7 P.S. §6601 et seq., or the Mortgage Banker/Brokers and Consumer Equity Protection Act, 63 P.S. §456.101 et seq.
C. § 4 - Registration information
Contractors must provide the following information to the Bureau of Consumer Protection:
• Name(s), address, driver’s license #, federal employer ID #, SSN
• Prior relevant criminal offenses (fraud, etc.)
• Prior bankruptcies – last 10 years
• Civil judgments related to home improvement (H/I) transaction
• Proof of liability insurance – personal injury ($50k), property damage ($5k)
D. § 7(a) - Home Improvement Contracts – not valid/enforceable, unless...
• Written, legible, signed by all parties
• ID info on all contractors, subcontractors
• Contains the entire agreement
• Description of work, materials, specs
• No changes without written change order
• Sales price, down payments
• Contractor agreement to maintain liability insurance
• Toll-free number to Bureau of Consumer Protection
• Notice of right of rescission w/o penalty w/in 3 business days of signing
• Copy of completed contract to owner at time of execution
E. § 7(e) - Voidable clauses – voidable by the owner
• Hold-harmless clause
• Waiver of any local/state/federal safety or building code requirement
• Confession of judgment clause
• Waiver of right to jury trial
• Assignment of wages
• Agreement not to assert any claim or defense
• Grant of attorney fees or costs to contractor
• Release of liability for collections of payments, repossession
• Waiver of rights under HICPA
• Automatic/recurring renewal provision (w/exceptions)
F. § 7(f) - Home improvement retailer contracts (HIRC)
• Covers retailers (undefined) with >$50M net worth who do not perform home improvements
• H/I retailer shall comply with HICPA contract requirements (sec. 7 of SB 100)
• HIRCs not valid or enforceable, unless in writing with all of following:
▫ name, address, phone of retailer
▫ information about person signing for retailer
▫ complies with most provisions in (D), above
G. § 7(g) - Contractor right of equitable recovery
• Nothing in HICPA precludes contractor from recovery of payment
• For work performed
• Based on reasonable value of services requested by the owner, if
• Contractor has complied with (D), above, and
• Court determines it would be “inequitable” to deny such recovery
H. § 7(e) - Arbitration clause
• Nothing in this act shall preclude a court from setting aside an arbitration clause on any basis permitted under Pennsylvania law.”
• If the contract contains an arbitration clause, it shall meet the following requirements or be deemed void upon motion of either party
▫ text of clause must be in capital letters
▫ 12 pt. bold-face type
▫ on separate page from rest of contract
▫ separate line for each party to show assent to be bound
▫ not effective unless both parties sign and date
▫ shall clearly state whether decision is binding or appealable to court
▫ shall state whether facts/documents/decision are confidential
• This provision might well be pre-empted by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. See e.g., Gay v. CreditInform, 511 F.3d 369 (3d Cir. 2007).
I. § 8(a) - Home Improvement Fraud is a crime
A person commits “home improvement fraud” if with the intent to defraud, or, injure anyone, or with the knowledge that he is facilitating fraud or injury by anyone, the actor:
• Makes a false/misleading statement to encourage a person to enter into a H/I contract, or to justify an increase in a previously agreed upon price; or
• Receives an advance payment and fails to perform the contract when specified, and fails to return the payment. Exception: force majeure, labor strike, etc.; or
• Misrepresents or conceals identifying contractor ID information – while soliciting a person to enter into an agreement; or
• Damages property to induce a person to enter into a contract; or
• Falsely represents a government affiliation to induce entry into a contract; or
• Misrepresents an item as a special order; or
• Alters a H/I contract or payment agreement without the consumer’s consent; or
• Publishes a false or deceptive advertisement, in violation of relevant state law about advts.
J. § 8(b), (c), (d) - Prosecution of Home Improvement Fraud
• Grading – M-1 or felony, depending on $, age of victim, priors etc.
• Penalties may include revocation/suspension of H/I contractor certificate
• DAs have authority to investigate and start prosecutions
• State Atty. Genl. can investigate/prosecute multi-county violators
K. § 9 - Prohibited Acts
No person shall:
• Fail to register, as required
• Fail to refund money w/in 10 days of request for refund, if all the following apply
▫ no substantial work has been performed at time of request
▫ more than 45 days have elapsed since starting date in contract
• Accept a certificate of completion or the like, knowing that it is false or work isn’t complete
• Knowingly use a false proof of performance in order to make/accept an assignment, or get/grant credit or loan or right to receive payment under an H/I contract
• Abandon or fail to perform a H/I contract, without justification (e.g., nonpayment)
• Materially deviate from plans/specs, without signed/dated change order, with prices
• Be involved in financing, knowing that the H/I contract states higher than actual price
• Advertise or offer to perform a H/I contract if the person does not intend to accept or perform the contract at the advertised price
• Demand or received any payment before the contract is signed
• Receive a deposit of more than 1/3 of the contract price (contracts of more than $1,000)
• For a salesman to fail to account for/remit a payment to a contractor whom s/he represents
• Change liability or identifying information, after the contract is entered into, in a fraudulent or deceptive manner likely to cause confusion or misunderstanding, without advising the owner in writing within 10 days of any such change.
L. § 10 – Unfair Trade Practices & Consumer Protection Law (UTPCPL)
• A violation of any provisions of HICPA shall be deemed a violation of the UTPCPL.
• Nothing in HICPA shall preclude an owner from exercising a right under the UTPCPL.
M. § 11 – Regulations
The Bureau of Consumer Protection may adopt rules and regulations to carry out HICPA.
N. § 12 – Pre-emption of local registration
• Registration – registration under HICPA precludes other fees/licensing/registration
• Building permits – Local govt. can require building permits and reasonable permit fee
• Local govt. responsibilities remain under Pa. Construction Code and Worker’s Comp. Law
• No effect on trade licensing standards (plumber, electrician, etc.)
• No effect on local regs. for liability insurance adopted before 01-06 and in effect on 07-09
O. § 13 – Exemptions - HICPA does not apply to local, state or federal government
P. § 14 – Repeal - All inconsistent acts are repealed.
prepared by:
Donald Marritz, staff attorney
Regional Housing Legal Services
October 31, 2008
Wednesday, November 05, 2008
Truth in Lending - tolerance for accuracy - special pleading not required
In re Sterten - 3d Circuit - November 4, 2008
http://www.ca3.uscourts.gov/opinarch/072237p.pdf
The Truth in Lending Act, 15 U.S.C. § 1601, et seq., imposes disclosure requirements on creditors, exposing them to such penalties as money damages, attorney’s fees and recission for failure to disclose finance charges accurately. See § 1635(a) & (g); § 1640(a).
However, in 1995, in an effort to prevent creditors from being subject to “extraordinary liability” for small disclosure discrepancies, Congress amended the Act to include a “tolerances for accuracy” provision. Under that provision, a creditor is not liable for undisclosed finance charges if those charges fall within a specified range of error. 15 U.S.C. § 1605(f).
We decide whether a Truth in Lending Act defendant who does not specifically defend on the ground that any inaccuracies in its disclosure fell within the tolerance range waives the protection that provision provides. In procedural parlance, we decide whether a tolerances for accuracy defense is affirmative (requiring that it be pled specifically) or general (thus not requiring that it be pled specifically).
We hold that the defense is general, and that a defendant need not specifically raise the Act’s tolerances provision in order to avoid liability for disclosure errors that fall within its range.
http://www.ca3.uscourts.gov/opinarch/072237p.pdf
The Truth in Lending Act, 15 U.S.C. § 1601, et seq., imposes disclosure requirements on creditors, exposing them to such penalties as money damages, attorney’s fees and recission for failure to disclose finance charges accurately. See § 1635(a) & (g); § 1640(a).
However, in 1995, in an effort to prevent creditors from being subject to “extraordinary liability” for small disclosure discrepancies, Congress amended the Act to include a “tolerances for accuracy” provision. Under that provision, a creditor is not liable for undisclosed finance charges if those charges fall within a specified range of error. 15 U.S.C. § 1605(f).
We decide whether a Truth in Lending Act defendant who does not specifically defend on the ground that any inaccuracies in its disclosure fell within the tolerance range waives the protection that provision provides. In procedural parlance, we decide whether a tolerances for accuracy defense is affirmative (requiring that it be pled specifically) or general (thus not requiring that it be pled specifically).
We hold that the defense is general, and that a defendant need not specifically raise the Act’s tolerances provision in order to avoid liability for disclosure errors that fall within its range.
attorney fees - foreign judgment - English rule
Olympus Corp v. Canady - Superior Court - October 30, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15025_08.pdf
Pennsylvania courts must give full faith and credit under the Uniform Foreign Money Judgment Recognition Act, 42 Pa. C.S. 22001 et seq. to a judgment of the UK High Court of Justice, which included an award of fees against the appellant (plaintiff in the UK court), under the long-standing "English rule," which provides for attorney fees to the prevailing party.
Such an award is remedial and not a penalty, does not violate any public policy of Pennsylvania, and was implicitly acquiesced in by the appellant, who sought recourse in the English courts.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15025_08.pdf
Pennsylvania courts must give full faith and credit under the Uniform Foreign Money Judgment Recognition Act, 42 Pa. C.S. 22001 et seq. to a judgment of the UK High Court of Justice, which included an award of fees against the appellant (plaintiff in the UK court), under the long-standing "English rule," which provides for attorney fees to the prevailing party.
Such an award is remedial and not a penalty, does not violate any public policy of Pennsylvania, and was implicitly acquiesced in by the appellant, who sought recourse in the English courts.
Thursday, October 30, 2008
social security - $ increases - Title II and SSI, etc.
SUMMARY: We have determined—
(1) A 5.8 percent cost-of-living increase in Social Security benefits under title II of the Social Security Act (the Act), effective for December 2008;
(2) An increase in the Federal Supplemental Security Income (SSI) monthly benefit amounts under title XVI of the Act for 2009 to $674 for an eligible individual, $1,011 for an eligible individual with an eligible spouse, and $338 for an essential person;
(3) The student earned income exclusion to be $1,640 per month in 2009 but not more than $6,600 in all of 2009;
(4) The dollar fee limit for services performed as a representative payee to be $37 per month ($72 per month in the case of a beneficiary who is disabled and has an alcoholism or drug addiction condition that leaves him or her incapable of managing benefits) in 2009;
(5) The dollar limit on the administrative-cost assessment charged to attorneys representing claimants to be $83 in 2009;
(6) The national average wage index for 2007 to be $40,405.48;
(7) The Old-Age, Survivors, and Disability Insurance (OASDI) contribution and benefit base to be $106,800 for remuneration paid in 2009 and self-employment income earned in taxable years beginning in 2009;
(8) The monthly exempt amounts under the Social Security retirement earnings test for taxable years ending in calendar year 2009 to be $1,180 and $3,140;
(9) The dollar amounts (‘‘bend points’’) used in the primary insurance amount benefit formula for workers who become eligible for benefits, or who die before becoming eligible, in 2009 to be $744 and $4,483;
(10) The bend points used in the formula for computing maximum family benefits for workers who become eligible for benefits, or who die before becoming eligible, in 2009 to be $950, $1,372, and $1,789;
(11) The amount of taxable earnings a person must have to be credited with a quarter of coverage in 2009 to be $1,090;
(12) The ‘‘old-law’’ contribution and benefit base to be $79,200 for 2009;
(13) The monthly amount deemed to constitute substantial gainful activity for statutorily blind individuals in 2009 to be $1,640, and the corresponding amount for non-blind disabled persons to be $980;
(14) The earnings threshold establishing a month as a part of a trial work period to be $700 for 2009; and
(15) Coverage thresholds for 2009 to be $1,700 for domestic workers and $1,500 for election workers.
(1) A 5.8 percent cost-of-living increase in Social Security benefits under title II of the Social Security Act (the Act), effective for December 2008;
(2) An increase in the Federal Supplemental Security Income (SSI) monthly benefit amounts under title XVI of the Act for 2009 to $674 for an eligible individual, $1,011 for an eligible individual with an eligible spouse, and $338 for an essential person;
(3) The student earned income exclusion to be $1,640 per month in 2009 but not more than $6,600 in all of 2009;
(4) The dollar fee limit for services performed as a representative payee to be $37 per month ($72 per month in the case of a beneficiary who is disabled and has an alcoholism or drug addiction condition that leaves him or her incapable of managing benefits) in 2009;
(5) The dollar limit on the administrative-cost assessment charged to attorneys representing claimants to be $83 in 2009;
(6) The national average wage index for 2007 to be $40,405.48;
(7) The Old-Age, Survivors, and Disability Insurance (OASDI) contribution and benefit base to be $106,800 for remuneration paid in 2009 and self-employment income earned in taxable years beginning in 2009;
(8) The monthly exempt amounts under the Social Security retirement earnings test for taxable years ending in calendar year 2009 to be $1,180 and $3,140;
(9) The dollar amounts (‘‘bend points’’) used in the primary insurance amount benefit formula for workers who become eligible for benefits, or who die before becoming eligible, in 2009 to be $744 and $4,483;
(10) The bend points used in the formula for computing maximum family benefits for workers who become eligible for benefits, or who die before becoming eligible, in 2009 to be $950, $1,372, and $1,789;
(11) The amount of taxable earnings a person must have to be credited with a quarter of coverage in 2009 to be $1,090;
(12) The ‘‘old-law’’ contribution and benefit base to be $79,200 for 2009;
(13) The monthly amount deemed to constitute substantial gainful activity for statutorily blind individuals in 2009 to be $1,640, and the corresponding amount for non-blind disabled persons to be $980;
(14) The earnings threshold establishing a month as a part of a trial work period to be $700 for 2009; and
(15) Coverage thresholds for 2009 to be $1,700 for domestic workers and $1,500 for election workers.
Wednesday, October 29, 2008
disability - "closely approaching retirement age"
http://edocket.access.gpo.gov/2008/pdf/E8-25532.pdf
SUMMARY: We are modifying the rules we use to determine disability under titles II and XVI of the Social Security Act (‘‘Act’’) to revise the definition of persons ‘‘closely approaching retirement age’’ from ‘‘60–64’’ to ‘‘60 or older.’’
These changes acknowledge that we make disability determinations for persons over age 64. We are also making minor technical changes that will not have any effect on how we determine your eligibility for benefits.
DATES: These rules are effective October 29, 2008.
SUMMARY: We are modifying the rules we use to determine disability under titles II and XVI of the Social Security Act (‘‘Act’’) to revise the definition of persons ‘‘closely approaching retirement age’’ from ‘‘60–64’’ to ‘‘60 or older.’’
These changes acknowledge that we make disability determinations for persons over age 64. We are also making minor technical changes that will not have any effect on how we determine your eligibility for benefits.
DATES: These rules are effective October 29, 2008.
Monday, October 27, 2008
child abuse - expungement - founded report - collateral estoppel
C.J. v. DPW - Cmwlth. Court - October 24, 2008
http://www.courts.state.pa.us/OpPosting/Cwealth/out/591CD08_10-24-08.pdf
An adjudication of dependency and finding of abuse under the Juvenile Act bars a request for expunction from a founded report of child abuse under the Child Protective Services Law, under the doctrine of collateral estoppel.
Our recent decision in K.R. v. DPW, 950 A.2d 1069 (Pa. Cmwlth. 2008), holding the Department may rely on findings made in a dependency proceeding to deny a request for expunction of a founded child abuse report, compels the same result here.
An administrative hearing on the expunction request is not permitted because the petitioner was given a full and fair hearing to defend against the allegations in the dependency proceedings. He cannot collaterally attack the trial court’s dependency and abuse findings. The Court’s determination in K.R. allows for application of res judicata in expunction proceedings where, as here, the findings of fact in dependency proceedings establish child abuse at the hands of a named perpetrator.
Collateral estoppel bars a subsequent lawsuit where (1) an issue decided in a prior action is identical to one presented in a later action; (2) the prior action resulted in a final judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to the prior action, or is in privity with a party to the prior action; and (4), the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action.
The dispositive legal and factual issues were identical in both proceedings here, and the remaining criteria of collateral estoppel are similarly met.
http://www.courts.state.pa.us/OpPosting/Cwealth/out/591CD08_10-24-08.pdf
An adjudication of dependency and finding of abuse under the Juvenile Act bars a request for expunction from a founded report of child abuse under the Child Protective Services Law, under the doctrine of collateral estoppel.
Our recent decision in K.R. v. DPW, 950 A.2d 1069 (Pa. Cmwlth. 2008), holding the Department may rely on findings made in a dependency proceeding to deny a request for expunction of a founded child abuse report, compels the same result here.
An administrative hearing on the expunction request is not permitted because the petitioner was given a full and fair hearing to defend against the allegations in the dependency proceedings. He cannot collaterally attack the trial court’s dependency and abuse findings. The Court’s determination in K.R. allows for application of res judicata in expunction proceedings where, as here, the findings of fact in dependency proceedings establish child abuse at the hands of a named perpetrator.
Collateral estoppel bars a subsequent lawsuit where (1) an issue decided in a prior action is identical to one presented in a later action; (2) the prior action resulted in a final judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to the prior action, or is in privity with a party to the prior action; and (4), the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action.
The dispositive legal and factual issues were identical in both proceedings here, and the remaining criteria of collateral estoppel are similarly met.
PFA - past abuse - present fear of bodily injury
Buchalter v. Buchatler - Superior Court - October 27, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a23044_08.pdf
Past abuse that was subject of prior consent order held relevant to plaintiff's allegation of present fear of bodily injury, even
In essence, the trial court reasons that if Patricia is not believed as to the allegations in the present petition, then there is no need to hear testimony about prior abuse. We disagree. “In the context of a PFA case, the court’s objective is to determine whether the victim is in reasonable fear of imminent serious bodily injury….”
The facts surrounding the prior PFA consent order are relevant to an understanding as to the reasonableness of plaintiff's fear relative to the present petition. Moreover, merely determining that a party is not credible is not a basis in itself to exclude relevant testimony.
The court also cited Miller v. Walker, 665 A.2d 1252 at 1259, for the proposition that it was proper in that case to consider abuse which had occurred 6 years before.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a23044_08.pdf
Past abuse that was subject of prior consent order held relevant to plaintiff's allegation of present fear of bodily injury, even
In essence, the trial court reasons that if Patricia is not believed as to the allegations in the present petition, then there is no need to hear testimony about prior abuse. We disagree. “In the context of a PFA case, the court’s objective is to determine whether the victim is in reasonable fear of imminent serious bodily injury….”
The facts surrounding the prior PFA consent order are relevant to an understanding as to the reasonableness of plaintiff's fear relative to the present petition. Moreover, merely determining that a party is not credible is not a basis in itself to exclude relevant testimony.
The court also cited Miller v. Walker, 665 A.2d 1252 at 1259, for the proposition that it was proper in that case to consider abuse which had occurred 6 years before.
disability - SSA general objections and remand request rejected
Morales v. Astrue - ED Pa. - October 23, 2008
http://www.paed.uscourts.gov/documents/opinions/08D1252P.pdf
SSA submission of "merely of generalized arguments, disagreeing with the Magistrate Judge’s result...do not impugn the validity of the Magistrate Judge’s Recommendation."
SSA request for remand for further evidentiary development also denied where the facts were fully developed before the ALJ and the Commissioner does not specify what additional evidence might be available.
http://www.paed.uscourts.gov/documents/opinions/08D1252P.pdf
SSA submission of "merely of generalized arguments, disagreeing with the Magistrate Judge’s result...do not impugn the validity of the Magistrate Judge’s Recommendation."
SSA request for remand for further evidentiary development also denied where the facts were fully developed before the ALJ and the Commissioner does not specify what additional evidence might be available.
Thursday, October 23, 2008
UC - overpayment - fault - misstatement about ability to work
Presbery v. UCBR - Cmwlth. Court - October 22, 2008 - unreported mem. opinion
http://www.courts.state.pa.us/OpPosting/Cwealth/out/2355CD07_10-22-08.pdf
Claimant was at fault for an overpayment that occurred when she misrepresented her ability to work when applying for UC after being in a car accident. Her own medical evidence showed that she had not been released for work and was not able/available during a period of several months after her application for benefits.
http://www.courts.state.pa.us/OpPosting/Cwealth/out/2355CD07_10-22-08.pdf
Claimant was at fault for an overpayment that occurred when she misrepresented her ability to work when applying for UC after being in a car accident. Her own medical evidence showed that she had not been released for work and was not able/available during a period of several months after her application for benefits.
UC - vol. quit - health/safety concerns
KK Fit, Inc. v. UCBR - Cmwlth. Court- October 22, 2008 - unreported memorandum opinion
http://www.courts.state.pa.us/OpPosting/Cwealth/out/349CD08_10-22-08.pdf
The court upheld the UCBR decision that the claimant had good cause to quit her job as the director of a children's gym, whose clients included infants.
The gym had two ongoing problems about which claimant complained for 5 months, to no avail. There were wiring problems and torn upholstery; some infants were eating pieces of the stuffing.
A third problem involved spider in the gym. One child had a bad reaction to a spider bite and had to be taken to the ER. The employer promised to take care of this problem, but claimant discovered that the exterminator visit had been cancelled and quit. The spider problem was not dealt with until 10 days later.
The Referee found that Claimant “acted as a reasonable person in inferring that [Employer] probably did not intend to take care of the problem immediately, as had been the case with the upholstery and the wiring.” Accordingly, the Referee affirmed the Service Center’s determination. Employer appealed the Referee’s decision to the Board. On appeal, the Board adopted and incorporated the Referee’s findings and conclusions, resolved the conflicts in testimony in favor of Claimant, and concluded that Employer “did not make timely and reasonable efforts to correct the serious safety issues present in the children’s gym.” The court held that these findings were "amply supported" by substantial evidence and the relevant law.
In order to show a necessitous and compelling cause to quit, the claimant must show that: “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.” An employee has a necessitous and compelling reason for terminating employment when the job jeopardizes her health or safety, or when the work results in a violation of the law.
Claimant acted reasonably in terminating her employment when she did. Claimant brought to Employer’s attention two serious safety issues regarding the electrical and upholstery defects which went unaddressed on a permanent basis for nearly five months that Claimant continued with her employment, when another safety issue arose, i.e., the problem with the spiders, at which time Claimant approached Employer about her decision to resign.
Claimant opted to trust Employer that the spider issue would be taken care of in a timely manner and, when she found out that Employer had cancelled the exterminator, she quit her employment. Employer did not address the safety issues. When Employer did not address the spider issue when it said it would, it was not unreasonable for Claimant to believe said safety condition would continue to go unaddressed, because the "Employer did not address the safety issues in a timely manner."
Claimant acted with ordinary common sense and made a reasonable effort to preserve her employment by taking proactive measures to address the safety concerns, while timely notifying the appropriate people of the various safety concerns. A reasonable person would act in the same manner both out of concern for her own safety from the faulty electrical wiring, as well as the lingering safety hazards to the children that were under her care. Based on the totality of the circumstances, and the gravity of the complaints that were not addressed, we cannot conclude that the Board erred as a matter of law in granting Claimant benefits.
http://www.courts.state.pa.us/OpPosting/Cwealth/out/349CD08_10-22-08.pdf
The court upheld the UCBR decision that the claimant had good cause to quit her job as the director of a children's gym, whose clients included infants.
The gym had two ongoing problems about which claimant complained for 5 months, to no avail. There were wiring problems and torn upholstery; some infants were eating pieces of the stuffing.
A third problem involved spider in the gym. One child had a bad reaction to a spider bite and had to be taken to the ER. The employer promised to take care of this problem, but claimant discovered that the exterminator visit had been cancelled and quit. The spider problem was not dealt with until 10 days later.
The Referee found that Claimant “acted as a reasonable person in inferring that [Employer] probably did not intend to take care of the problem immediately, as had been the case with the upholstery and the wiring.” Accordingly, the Referee affirmed the Service Center’s determination. Employer appealed the Referee’s decision to the Board. On appeal, the Board adopted and incorporated the Referee’s findings and conclusions, resolved the conflicts in testimony in favor of Claimant, and concluded that Employer “did not make timely and reasonable efforts to correct the serious safety issues present in the children’s gym.” The court held that these findings were "amply supported" by substantial evidence and the relevant law.
In order to show a necessitous and compelling cause to quit, the claimant must show that: “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.” An employee has a necessitous and compelling reason for terminating employment when the job jeopardizes her health or safety, or when the work results in a violation of the law.
Claimant acted reasonably in terminating her employment when she did. Claimant brought to Employer’s attention two serious safety issues regarding the electrical and upholstery defects which went unaddressed on a permanent basis for nearly five months that Claimant continued with her employment, when another safety issue arose, i.e., the problem with the spiders, at which time Claimant approached Employer about her decision to resign.
Claimant opted to trust Employer that the spider issue would be taken care of in a timely manner and, when she found out that Employer had cancelled the exterminator, she quit her employment. Employer did not address the safety issues. When Employer did not address the spider issue when it said it would, it was not unreasonable for Claimant to believe said safety condition would continue to go unaddressed, because the "Employer did not address the safety issues in a timely manner."
Claimant acted with ordinary common sense and made a reasonable effort to preserve her employment by taking proactive measures to address the safety concerns, while timely notifying the appropriate people of the various safety concerns. A reasonable person would act in the same manner both out of concern for her own safety from the faulty electrical wiring, as well as the lingering safety hazards to the children that were under her care. Based on the totality of the circumstances, and the gravity of the complaints that were not addressed, we cannot conclude that the Board erred as a matter of law in granting Claimant benefits.
real property - tax sale - notice to deceased's estate
In re Upset Price Tax Sale - Cmwlth. Court - October 22, 2008 - unreported mem. opinion
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1102CD07_10-22-08.pdf
Trial court abused its discretion is setting aside tax sale, because of inadequate notice, where notice of the sale was properly sent under the Real Estate Tax Sale Law, RESTL, 721 PS 5860.602(e)(1), to the decedent owner's personal representative (PR), who had extensive contact with the Tax Claim Bureau.
Here, the PR specifically informed the TCB that the owners, her cousins, were deceased and that she was the person responsible to pay the taxes. She informed the TCB where she lived and that she was the designated agent of the family with respect to the Property for its tax liabilities. She was also appointed as the Administratrix of the estate, of her deceased cousin, who remained a record owner of the Property.
The TCB and the PR had previously corresponded regarding the Property and the PR actually prevented a previous upset tax sale when she entered into an agreement with the TCB to pay delinquent taxes on the Property. The parties stipulated that the Board of Assessment’s records since at lease 1999 listed a registered address for the owners as “c/o the PR” at her place of residence, the same address where the tax sale notices were mailed and received.
It would not have constituted ordinary sound business practices for the TCB to send notices to a person who was deceased to an address where it knew that the PR, the designated agent and person responsible for paying the taxes, did not reside.
Because the Section 602(e)(1) “first” notice was sent to and received by the PR, no additional notice or efforts to ascertain the identity and whereabouts of the owner of record were required by the TCB....TCB proved that it gave the requisite notice and there is evidence that the addressee received it. Accordingly, the order of the trial court which invalidated the upset tax sale of the Property is reversed.
-
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1102CD07_10-22-08.pdf
Trial court abused its discretion is setting aside tax sale, because of inadequate notice, where notice of the sale was properly sent under the Real Estate Tax Sale Law, RESTL, 721 PS 5860.602(e)(1), to the decedent owner's personal representative (PR), who had extensive contact with the Tax Claim Bureau.
Here, the PR specifically informed the TCB that the owners, her cousins, were deceased and that she was the person responsible to pay the taxes. She informed the TCB where she lived and that she was the designated agent of the family with respect to the Property for its tax liabilities. She was also appointed as the Administratrix of the estate, of her deceased cousin, who remained a record owner of the Property.
The TCB and the PR had previously corresponded regarding the Property and the PR actually prevented a previous upset tax sale when she entered into an agreement with the TCB to pay delinquent taxes on the Property. The parties stipulated that the Board of Assessment’s records since at lease 1999 listed a registered address for the owners as “c/o the PR” at her place of residence, the same address where the tax sale notices were mailed and received.
It would not have constituted ordinary sound business practices for the TCB to send notices to a person who was deceased to an address where it knew that the PR, the designated agent and person responsible for paying the taxes, did not reside.
Because the Section 602(e)(1) “first” notice was sent to and received by the PR, no additional notice or efforts to ascertain the identity and whereabouts of the owner of record were required by the TCB....TCB proved that it gave the requisite notice and there is evidence that the addressee received it. Accordingly, the order of the trial court which invalidated the upset tax sale of the Property is reversed.
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public employement - termination - due process
Palmer v. Bartosh - Cmwlth. Court - October 23, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/137CD08_10-23-08.pdf
Plaintiff, a school teacher, stated claim for relief under 42 USC 1983 against defendant school administrators, in their individual capacities, for dismissing him from his public employment
"Plaintiff allged alleged that the Defendants, acting under the color of state law: engaged in a secret investigation; refused to allow a witness to observe their interviews with students; coerced and/or coached students into making accusations against Mr. Palmer, which the students thereafter refused to repeat under oath; failed to advise Mr. Palmer of the specific accusations against him or give him the opportunity to rebut them; and thereby obtained Mr. Palmer’s discharge from his employment."
"We conclude that these allegations of specific conduct taken by the Defendants, which must be taken as true at this stage of this proceeding, constitute sufficient facts to state a claim for deprivation of a property right to employment and reputation in violation of the Fourteenth Amendment and article 1, section 1 of the Pennsylvania Constitution, and, therefore, the trial court erred in sustaining the POs to Count VII against the Defendants in their individual capacities."
The Fourteenth Amendment requires due process where the deprivation of an individual’s property right, such as the right to continued public employment, is implicated. Andresky v. West Allegheny School District, 437 A.2d 1075 (Pa. Cmwlth. 1981).
Similarly, article I, section 1 of the Pennsylvania Constitution provides that an individual’s right to property and reputation may not be deprived without due process. R. v. Commonwealth, 535 Pa. 440, 636 A.2d 142 (1994); Pennsylvania Bar Association v. DPW, 607 A.2d 850 (Pa. Cmwlth. 1992).
Due process of law requires that an individual is entitled to adequate notice of the charges against him and an opportunity to be heard. Dunn v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 189 (Pa. Cmwlth. 2003). Adequate notice, for procedural due process purposes, requires at a minimum that notice contain a sufficient listing and explanation of the charges against the individual. Id.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/137CD08_10-23-08.pdf
Plaintiff, a school teacher, stated claim for relief under 42 USC 1983 against defendant school administrators, in their individual capacities, for dismissing him from his public employment
"Plaintiff allged alleged that the Defendants, acting under the color of state law: engaged in a secret investigation; refused to allow a witness to observe their interviews with students; coerced and/or coached students into making accusations against Mr. Palmer, which the students thereafter refused to repeat under oath; failed to advise Mr. Palmer of the specific accusations against him or give him the opportunity to rebut them; and thereby obtained Mr. Palmer’s discharge from his employment."
"We conclude that these allegations of specific conduct taken by the Defendants, which must be taken as true at this stage of this proceeding, constitute sufficient facts to state a claim for deprivation of a property right to employment and reputation in violation of the Fourteenth Amendment and article 1, section 1 of the Pennsylvania Constitution, and, therefore, the trial court erred in sustaining the POs to Count VII against the Defendants in their individual capacities."
The Fourteenth Amendment requires due process where the deprivation of an individual’s property right, such as the right to continued public employment, is implicated. Andresky v. West Allegheny School District, 437 A.2d 1075 (Pa. Cmwlth. 1981).
Similarly, article I, section 1 of the Pennsylvania Constitution provides that an individual’s right to property and reputation may not be deprived without due process. R. v. Commonwealth, 535 Pa. 440, 636 A.2d 142 (1994); Pennsylvania Bar Association v. DPW, 607 A.2d 850 (Pa. Cmwlth. 1992).
Due process of law requires that an individual is entitled to adequate notice of the charges against him and an opportunity to be heard. Dunn v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 189 (Pa. Cmwlth. 2003). Adequate notice, for procedural due process purposes, requires at a minimum that notice contain a sufficient listing and explanation of the charges against the individual. Id.
Wednesday, October 22, 2008
civil procedure - POs - failure to respond
Joloza v. PennDOT - Cmwlth. Court - October 23, 2008
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/485CD08_10-22-08.pdf
It was error fro the trial court to sustain the defendant's preliminary objections (demurrer) solely on the basis of plaintiff's failure to respond to the POs, without even considering the allegations in the plaintiff's complaint.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/485CD08_10-22-08.pdf
It was error fro the trial court to sustain the defendant's preliminary objections (demurrer) solely on the basis of plaintiff's failure to respond to the POs, without even considering the allegations in the plaintiff's complaint.
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