consumer - contract under seal - statute of limitations

Osprey Portfolio, Inc. v. Izett - Superior Court - November 21, 2011

http://www.pacourts.us/OpPosting/Superior/out/a21030_11.pdf

Guaranty under seal for related promissory note was an instrument under seal subject to 20-year statute of limitations (SOL) under 42 Pa. C.S. 5529(b)(1) rather than normal 4-year contract SOL, 42 Pa. C.S. 5525.

The guaranty, which had the pre-printed word "SEAL" next to the signature line, was "undisputedly signed under seal," * and was held to be an “'instrument' because it defines the rights, duties, entitlements, and liabilities of the parties involved, and therefore, the applicable statute of limitations is the twenty-year statute set forth in 42 Pa.C.S.A. § 5529(b)(1)."

* In re Estate of Snyder, 13 A.3d at 513 (holding that the twenty-year statute of limitations applied to the action and stating that “this Court has held, in accord with many cases written by our Supreme Court, that when a party signs an instrument which contains a pre-printed word ‘SEAL,’ that party has presumptively signed an instrument under seal.” (citation and brackets omitted)); see also Robert Mallery Lumber Corp. v. B. & F. Assocs., Inc., 440 A.2d 579, 582 (Pa. Super. 1982) (referring to a guaranty as an “instrument”); accord Marcucci v. H & L Developers, Inc., 2009 U.S. Dist. LEXIS 121769 at *21 (E.D. Pa. 2009)

social security disability - treating physician - clinical/home setting v. work setting

Callahan v. Astrue - ED Pa. - November 7, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1256P.pdf

Over defendant's objection, the court affirmed the Magistrate Judge's Report and Recommendation recommending that plaintiff’s Request for Review be granted and the case be remanded to defendant for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g).

The disputes before the Court primarily concern plaintiff’s mental impairments, including her history of alcohol and drug dependency, bipolar disorder, and severe depression.

Evidence that a claimant is doing well in treatment does not contradict a treating physician’s opinion that she is unable to work. “[T]he work environment is completely different from home or a mental health clinic. [A treating physician’s] observation[] that [a patient] is ‘stable and well controlled with medication’ during treatment does not support the medical conclusion that [the patient] can return to work.” Morales, 225 F.3d at 319. For that reason, a treating physician’s opinion that an individual cannot work may “not be supplanted by an inference gleaned from treatment records reporting on [plaintiff] in an environment absent of the stresses that accompany the work setting.” Id.; see also Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 356 (3d Cir. 2008) (reiterating “the distinction between a doctor’s notes for purposes of treatment and that doctor’s ultimate opinion on the claimant’s ability to work”); Nguyen v. Astrue, No. 06-3443, 2008 WL 200175, at *3 (E.D. Pa. Jan. 23, 2008) (holding that when an ALJ rejected a treating psychiatrist’s opinion based on clinical notes that the plaintiff was doing well on medication, the ALJ improperly “substitute[d] his clinical judgment for that of the treating psychiatrist”). The ALJ thus erred in rejecting the doctor's inability-to-work opinion on that basis.

Evidence that plaintiff sometimes performed domestic tasks such as caring for her children and doing chores does not contradict a doctor's opinion that she could not work. Defendant’s Objections omit plaintiff’s repeated statement that the domestic tasks occur only “on a good day[;] a lot of the time I’m unable to do these things so my friend or daughter drop my son off at daycare and I never get up.” This explanation by plaintiff is important. Plaintiff concedes that she might be able to sustain a full-time job for “a week or two” or even a month. However, “not too many bosses are willing to put up with [her]” when her bipolar disorder hits a “down stage.” The ALJ committed legal error when he refused to consider the doctor's opinion.

custody - relocation - consideration of all statutory factors

ED v. MP - Superior Court - November 9, 2011

http://www.pacourts.us/OpPosting/Superior/out/s54005_11.pdf

Which statute applies? - Because Father initiated his relocation request after the effective date of the new Act and Mother’s request for modification of the custody order followed, the provisions of the new Child Custody Act apply here.

Duty of court to consider statutory factors - The court agreed that the trial court failed to consider adequately the ten factors for relocation in section 5337(h), which mandates that the trial court shall consider all of the factors listed therein, giving weighted consideration to those factors affecting the safety of the child. 23 Pa.C.S.A. § 5337(h).

In this case, it cannot be ascertained from the record on appeal whether the trial court considered all of the section 5337(h) factors in reaching its decision. To the extent that the trial court did consider these factors, it did so in a cursory manner without references to the record or explanations for its conclusions.

UC - vol. quit - health reasons - able/available

Tracy v. UCBR - Cmwlth. Court - November 10, 2011 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/408CD11_11-10-11.pdf

To be eligible for benefits under Section 402(b) of the Law, a claimant must prove that the separation from employment was for a necessitous and compelling reason. Diehl v. UCBR, 4 A.3d 816 (Pa. Cmwlth. 2010), appeal granted, ___ Pa. ___, 20 A.3d 1192 (2011).

To meet that burden, the claimant must demonstrate circumstances which placed a real and substantial pressure upon him or her to terminate employment that would compel a reasonable person to act in the same manner. Smithley v. UCBR, 8 A.3d 1027 (Pa. Cmwlth. 2010). Whether the claimant's termination of employment was for a necessitous and compelling reason is a question of law subject to this Court's plenary review. W. & S. Life Ins. Co. v. UCBR, 913 A.2d 331 (Pa. Cmwlth. 2006).

Health problems, including an emotional or psychological disorder, can constitute a necessitous and compelling reason to terminate employment. Genetin v. UCBR, 499 Pa. 125, 451 A.2d 1353 (1982); Beattie v. UCBR, 500 A.2d 496 (Pa. Cmwlth. 1985). To establish a necessitous and compelling health reason for leaving employment, the claimant must: (1) present competent evidence of an adequate health reason justifying termination of employment; (2) have informed the employer of the health problems; and (3) be able and available to perform work which is not inimical to his or her health, if a reasonable accommodation is made by the employer. Ridley Sch. Dist. v. UCBR, 637 A.2d 749 (Pa. Cmwlth. 1994). The claimant, who has failed to meet any of these requirements, is ineligible for benefits. Ruckstuhl v. UCBR, 426 A.2d 719 (Pa. Cmwlth. 1981).

A necessitous and compelling health reason can be established by any competent medical or non-medical evidence. Cent. Data Ctr. v. UCBR, 458 A.2d 335 (Pa. Cmwlth. 1983). Claimant presented the evidence that she suffered from depression and anxiety. Claimant admitted, however, that she did not "tell …Employer that [she was] leaving because of health reasons." She was also required to demonstrate that she was able to work and available for suitable work, because the Law is not intended to provide health and disability benefits for ill employees. Section 401(d)(1) of the Law, 43 P.S. § 801(d)(1); Genetin. She was on a medical leave and was receiving disability benefits when she left her employment. Her treating physician did not release her to return to work because her condition prevented her from working in any kind of position with or without restrictions. Hence, Claimant failed to establish that she was able to work and available for suitable work.
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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

wages - FLSA - overtime - condit. class certified

Titchenell v. Apria Health Care - ED Pa. - Nov. 8, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1253P.pdf

Plaintiff Connie Titchenell filed this action against her former employer, defendant Apria Healthcare, Inc. (“Apria”), alleging that defendant violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.

She contends that, as a Customer Service Specialist, she worked ten to fifteen hours per week “off the clock” without compensation to meet defendant’s productivity demands. According to plaintiff, defendant had a company-wide policy or pattern of requiring Customer Service Specialists to work in excess of forty hours per week without overtime pay.

Presently before the Court is Plaintiff’s Amended Motion for Conditional Certification of Collective Class and to Facilitate Notice Pursuant to 29 U.S.C. § 216(b) For the reasons stated below, the Court grants plaintiff’s motion.

civil procedure - default judgments - opening

Kelly v. Siuma - Pa. Super. - November 3, 2011

http://www.pacourts.us/OpPosting/Superior/out/a31006_11.pdf

A petition to open a default judgment is an appeal to the equitable powers of the court. Absent an error of law or a clear, manifest abuse of discretion, it will not be disturbed on appeal.

An abuse of discretion occurs when a trial court, in reaching its conclusions, overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will. US Bank N.A. v. Mallory, 982 A.2d 986, 994 (Pa.Super. 2009)

Generally speaking, a default judgment may be opened if the moving party has (1) promptly filed a petition to open the default judgment, (2) provided a reasonable excuse or explanation for failing to file a responsive pleading, and (3) pleaded a meritorious defense to the allegations contained in the complaint. McFarland v. Whitham, 518 Pa. 496, 544 A.2d 929
(1988); Seeger v. First Union National Bank, 836 A.2d 163 (Pa.Super. 2003).

Where a petition to open is filed within ten days of the entry of judgment and is accompanied by a proposed answer offering a meritorious defense, the court shall open the judgment. See Estate of Considine v. Wachovia Bank, 966 A.2d 1148 (Pa.Super. 2009).

The timeliness of a petition to open a judgment is measured from the date that notice of the entry of the default judgment is received. The law does not establish a specific time period within which a petition to open a judgment must be filed to qualify as timely. Instead, the court must consider the length of time between discovery of the entry of the default judgment and the reason for delay. In cases where the appellate courts have found a “prompt” and timely filing of the petition to open a default judgment, the period of delay has normally been less than one month. See Duckson v. Wee Wheelers, Inc., 423 Pa.Super. 251, 620 A.2d 1206 (Pa.Super. 1993) (one day is timely); Alba v. Urology Associates of Kingston, 409 Pa.Super. 406, 598 A.2d 57 (Pa.Super. 1991) (fourteen days is timely); Fink v. General Accident Ins. Co., 406 Pa.Super. 294, 594 A.2d 345 (Pa.Super. 1991) (period of five days is timely). US Bank N.A., 982 A.2d at 995 (quotation omitted) (finding eighty-two day delay was not timely). See Myers v. Wells Fargo Bank, N.A., 986 A.2d 171 (Pa.Super. 2009) (indicating delay of fourteen days in filing petition to open was timely); Pappas v. Stefan, 304 A.2d 143 (Pa.Super. 1973) (fifty-five day delay was not prompt).

‘[W]hether an excuse is legitimate is not easily answered and depends upon the specific circumstances of the case. The appellate courts have usually addressed the question of legitimate excuse in the context of an excuse for failure to respond to the original complaint in a timely fashion.’ US Bank N.A., 982 A.2d at 995.

UC - vol. quit - change in health care plan

Elliot Co. v. UCBR - Cmwlth. Court - October 13, 2011 (en banc, 5-2)

http://www.pacourts.us/OpPosting/Cwealth/out/1783CD10_10-13-11.pdf

The Court held that the claimant had not met his burden of proving that the changes in his health care plan were so substantial to him that he had good cause to voluntarily quit his employment.

The 2-person dissent said that the majority had improperly subtituted its own findings of fact and its own judgment for those of the UCBR.

UC - failure to appear at hearing - good cause

Beaumont Retirement Center v. UCBR - Cmwlth. Court - October 17, 2011- unreported memorandum opinion.

http://www.pacourts.us/OpPosting/Cwealth/out/2627CD10_10-17-11.pdf

The employer's failed to appear at the referee hearing, and the referee and Board granted benefits. The court rejected the employer appeal, because no good cause for failure to appear was shown.

"Where a party fails to appear at a scheduled hearing, the Board may remand the case for an additional hearing only where the Board has made an independent determination that the reasons set forth by the party for its failure to appear constitute proper cause." Sanders v. UCBR, 524 A.2d 1031, 1032 (Pa. Cmwlth. 1987) (emphasis added); see also 34 Pa. Code §101.24.

Under Rule 101.24, "[i]f a party fails to appear at a scheduled hearing, that party must show good cause for that failure before the Board will delay the final disposition of the case by remanding for additional hearings." McNeill v. UCBR, 510 Pa. 574, 579, 511 A.2d 167, 169 (1986).

If the evidence in the record supports that a notice from the Board was mailed to a party’s last known address and not returned as undeliverable by the Post Office, it is presumed that the notice was received. See Gaskins v. UCBR, 429 A.2d 138 (Pa. Cmwlth. 1981) (affirming the Board’s denial of an untimely appeal where notice of the referee’s decision was mailed, was not returned by the postal authorities, and contained the information necessary to put the claimant on notice of the referee’s decision). This presumption is rebuttable. Id.

However, the mere assertion that the notice was not received, without factual support of any kind, is insufficient to rebut this presumption and does not constitute “good cause” for not appearing at a hearing. Otherwise, there would be no incentive to appear at the initial hearing. See McNeill. See also Wheeler v. Red Rose Transit Authority, 890 A.2d 1228, 1231 (Pa. Cmwlth 2006) (“testimony alone” that a notice from the court was not received will not rebut the presumption under Pa. R.C.P. No. 440(b) that notice was received); Kulick v. Commonwealth, 666 A.2d 1148 (Pa. Cmwlth. 1995) (testimony that a third party interfered with receipt of mail does not satisfy the burden of proving mail was not received); Sheehan v. WCAB, 600 A.2d 633 (Pa. Cmwlth. 1991) (testimony denying receipt is insufficient, in and of itself, to rebut the presumption that a properly-mailed item was received); Commonwealth v. Warenczuk, 636 A.2d 1225, 1226 (Pa. Cmwlth. 1991) (presumption that notice of a license suspension was received is not rebutted by “mere denial of receipt”).

__________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

federal courts - removal - 30-day limit

DeLalla v. Hanover Insurance - Third Circuit - October 13, 2011

http://www.ca3.uscourts.gov/opinarch/103933p.pdf

In order to remove a lawsuit filed in state court to a federal district court under the federal removal statute, 28 U.S.C. §§ 1441, 1446, a defendant must file a notice of removal within thirty days of the date on which the plaintiff serves the defendant.

Courts have split in interpreting this thirty day limitation: the Fourth and Fifth Circuits have held that the thirty day period ends thirty days after the first defendant is served (the first-served rule), and the Sixth, Eighth, Ninth, and Eleventh Circuits have held that each defendant has a thirty day period to file a notice of removal that ends thirty days after that defendant is served (the later-served rule).

The Third Circuit decided that the later-served rule represents "the most faithful and equitable reading of the removal statute" and affirmed the District Court order.

Default judgment stricken - faulty notice of intent to take default

City of Philadelphia v. Lane Advertising, Inc. - Cmwlth. Court - October 4, 2011 (en banc) (5-2)



http://www.pacourts.us/OpPosting/Cwealth/out/1449CD10_10-4-11.pdf



Default judgment stricken, because the notice of intention to take a default judgment did not comply with the relevant rules of civil procedure. A default judgment entered where there has not been strict compliance with the rules of civil procedure is void." Franklin Interiors, Inc. v. Browns Lane, Inc., 323 A.2d 226, 228 (Pa. Super. 1974).



Default judgments are generally not favored. . . In considering a motion to strike a default judgment the court is limited to the facts of record at the time the judgment was entered. . . .A petition to strike is not a chance to review the merits of the allegations of a complaint. Rather, it is aimed at defects that affect the validity of the judgment and that entitle the petitioner, as a matter of law, to relief.. . .



"A record that reflects a failure to comply with Rule 237.1 [of the Pennsylvania Rules of Civil Procedure] is facially defective and cannot support a default judgment." . . . Generally, if the record affirmatively shows a failure to comply with Pa. R.C.P. 237.1, the record is defective and will not support the entry of a default judgment.. . . Rule 237.1(a)(2) requires the plaintiff to provide notice to the defendant of its intent to seek a default judgment. Rule 237.5 requires that the notice "substantially" be in the form established by the Pennsylvania Supreme Court and set forth in the rule. Thus, if the notice provided is not "substantially" in the form adopted by the Pennsylvania Supreme Court, then the plaintiff has not complied with Rule 237.1 and the default judgment cannot stand.

Rule 237.5 requires that the 10-Day Notice "be substantially in the following form":

YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. Pa. R.C.P. No. 237.5 (emphasis added).

The Plaintiff's 10-Day Notice to Defendant provided:

You are in default because you have failed to take action required of you in this case. Unless you act within ten (10) days from the date of this notice, a Judgment may be entered against you without a hearing and you may lose your property or other important rights. . . . (emphasis added).)

The Plaintiff's notice is not identical to the Rule 237.5 form. Rather than instructing Defendant specifically of what he failed to do that led the Plaintiff to issue the notice, as the Rule 237.5 form provides, the Plaintiff's's notice only informed Defendant that he was in default because he "failed to take action required of [him] in this case."

In light of this apparent inconsistency on the face of the record, our analysis must proceed as follows: (a) did the Plaintiff's notice comply with Rule 237.5 because, though not identical, it was "substantially" in the form required by the rule, and, if not, (b) is it a fatal defect such that the default judgment must be set aside.

Held,

a) The notice was not "substantially in the form" required by the rules of procedure - Under the prior version of Rule 237.5, the notice only had to inform defendant that it he was in default, notify the defendant that the plaintiff intends to seek a default judgment if action is not taken within ten (10) days, and include some indicia of notice to legal counsel for the defendant, if represented. But with the 2004 amendment, Rule 237.5 now imposes an additional notice requirement on a plaintiff who wishes to obtain a judgment by default—i.e., the plaintiff must now include in the 10-Day Notice specific reasons why the defendant is in default. It is this additional notice that is absent in any form from the Plaintiff's's 10-Day Notice. Without this additional notice component, required by the Pennsylvania Rules of Civil Procedure for over five (5) years before the Plaintiff filed its complaint, we cannot consider the City’s notice to be "substantially" in the form required by Rule 237.5. The City, therefore, failed to comply with Rule 237.5 and, consequently, Rule 237.1(a)(2) of the Pennsylvania Rules of Civil Procedure.

b) The defect was fatal to the case, in which the judgment must be stricken - A default judgment entered where there has not been strict compliance with the rules of civil procedure is void." Franklin Interiors, Inc. v. Browns Lane, Inc., 323 A.2d 226, 228 (Pa. Super. 1974). Rules allowing a party to obtain a judgment by filing a praecipe, whether for non pros or by default for failure to plead, must be strictly construed. The 10-Day Notice required by Rule 237.1 in this case was defective on its face, as it was not "substantially" in the form required by Rule 237.5. Rather, the notice was based on the Old Form Notice, which the Pennsylvania Supreme Court amended to include the very language that the City omitted from its notice in this case—language that the Supreme Court added for a specific reason. Erie Ins. Co. v. Bullard, 839 A.2d 383, 387 (Pa. Super. 2003). Failure to include this key language was, therefore, a fatal defect. Regardless of the level of actual notice Defendant had, he did not have the type and extent of notice that the Pennsylvania Supreme Court required the City to provide before obtaining a default judgment.

UC - willful misconduct - single incident must be "sufficiently serious"

Liebert v. UCBR - Cmwlth Court - 9/26/11- unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1438CD10_9-26-11.pdf

A single failure to record a nine-minute absence on a timesheet does not constitute willful misconduct under the principles established in Williams v. UCBR, 380 A.2d 932 (Pa. Cmwlth. 1977).

Cases in which a single incident was held to constitute willful misconduct indicate that this determination has been made only where the single incident was "sufficiently serious" to justify that finding, such as unauthorized deliveries and misrepresentations; diversion of company property from a designated destination to a private garage; improperly selling company property; concealing the identity of a prospective customer in a bad faith attempt to extract additional remuneration; and assaulting a co-worker. Id. at 935.

By contrast, single incidents of minor infractions, such as missing a meeting, not remaining indoors while on home confinement, and reclining in the company truck during work time, are not "sufficiently serious" to constitute willful misconduct. Id.

It is true that falsifying a timesheet, for any duration, constitutes willful misconduct, Temple University of the Commonwealth System of Higher Education v. UCBR, 565 Pa. 178, 772 A.2d 416 (2001), the Pennsylvania Supreme Court concluded that it was willful misconduct to falsify employer‟s records in order to receive additional pay, even where it was done with a supervisor‟s permission.

However, in this case, there was no sufficient proof of such conduct. Employer's evidence consists solely of testimony was based upon phone records that were never introduced into evidence. Although Claimant did not raise a hearsay objection, under the legal residuum rule, hearsay evidence admitted without objection will be given its natural probative effect only if it is corroborated by any competent evidence in the record.‟" Greer v. UCBR, 4 A.3d 733, 737 n.7 (Pa. Cmwlth. 2010) (quoting Walker v. UCBR, 367 A.2d 366, 370 (Pa. Cmwlth. 1976)). Here, there is no such corroboration in the record. Claimant did not admit to any wrongdoing and the employer witness did not testify from her own observation and knowledge.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

standing

In re Miller - Pa. Supreme Court - September 28, 2011

http://www.pacourts.us/OpPosting/Supreme/out/J-75-2010mo.pdf

[T]to obtain judicial resolution of a dispute or challenge, an individual must have standing. An individual has standing only if he or she is aggrieved, i.e., adversely affected or negatively impacted in a real and direct fashion, by the proceedings at issue. Johnson v. American Standard, 8 A.3d 318, 329, 332-33 (Pa. 2010); Pittsburgh Palisades Park, LLC v. Commonwealth of Pennsylvania, 888 A.2d 655, 659-60 (Pa. 2005).

To demonstrate that he or she is aggrieved, an individual must establish "a substantial, direct and immediate interest in the proceedings.” Johnson, supra at 333. An individual’s interest in the proceedings is substantial if it “surpasses the common interest of all citizens in procuring obedience to the law.” Pittsburgh Palisades Park, supra at 660 (citation omitted). An individual’s interest is direct “if there is a causal connection between the asserted violation and the harm complained of,” and the interest is immediate “if that causal connection is not remote or speculative." Johnson, supra at 329 (citation omitted).

disability - hypothetical question - all limitations

Lucero v. Astrue - ED Pa. - September 26, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1088P.pdf

For the ALJ’s decision to be supported by substantial evidence, the hypothetical question to the vocational expert must “accurately convey all of [the claimant’s] impairments, and the
limitations they cause.”36 In Ramirez v. Barnhart, the Third Circuit held that including a requirement that a job be limited to one- to two-step tasks did not adequately encompass a
finding that the claimant “often” had deficiencies in concentration, persistence, or pace.37

As the Commissioner correctly notes, the functional scale used to assess concentration, persistence, or pace was changed after the ALJ’s decision in Ramirez. Both the old and new scales comprise five levels of limitation, with “often” at the third level on the old scale, and “moderate” at the third level on the revised scale.38 Therefore, some courts have found “often” and “moderate” to represent equivalent limitations, which must be included in the hypothetical question with specificity.39

Although the hypothetical question here did not refer specifically to Plaintiff’s moderate limitations in concentration, persistence, and pace, it did include limitations to simple repetitive
tasks, with only occasional changes in work setting and occasional contact with the public and coworkers; some courts have found such limitations sufficiently descriptive.40 However, even if
these limitations could be said to encompass moderate limitations in concentration, persistence, and pace in some cases, here the hypothetical question failed to incorporate the ALJ’s finding that Plaintiff had exhibited one or two episodes of decompensation, a term which “refers to exacerbations or temporary increases in symptoms or signs, accompanied by a loss of adaptive functioning.”41 Because the Court finds that the ALJ’s hypothetical question did not adequately encompass all of Plaintiff’s limitations, the case will be remanded to the Commissioner.42

----------------

36 Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir. 2004).

37 Id. at 552.

38 Strouse v. Astrue, No. 07-4514, 2010 WL 1047726, at *6 (E.D. Pa. Mar. 19, 2010), citing Colon v. Barnhart, 424 F. Supp. 2d 805, 811 (E.D. Pa. 2006); Dynko v. Barnhart, No. 03-3222, 2004 WL 2612260 (E.D. Pa. Nov. 16, 2004). However, in an unpublished decision, the Third Circuit distinguished the holding in Ramirez in part by reference to the “often” limitation in that case as opposed to the “moderate” limitation before it. McDonald v. Astrue, 293 F. App’x 941, 946 n.10 (3d Cir.2008) (not precedential). In McDonald, however, the Court found that
there was no support in the record for the claimant’s complaints, but instead, evidence to the contrary. Gayton v. Astrue, No. 08-3667, 2009 WL 1456608, *3 (E.D. Pa. May 19, 2009).

39 Strouse, 2010 WL 1047726 at * 6; Weinsteiger v. Astrue, No. 09-1769, 2010 WL 331903, *10 (E.D. Pa. Jan. 25, 2010); Bunch v. Astrue, No. 08-cv-487, 2008 WL 5055741, * 3 (E.D. Pa. Nov. 26, 2008) (citing cases).

40See Douglas v. Astrue, 2011 WL 482501, at *5 (E.D. Pa. Feb. 4, 2011) (holding that hypothetical limiting the claimant to unskilled work adequately accounted for moderate limitations in concentration, persistence, and pace); Reid v. Astrue, No. 08-300, 2009 WL 2710243,at *7 (E.D. Pa. Aug. 28, 2009) (holding that “because the record does not suggest that Plaintiff’s moderate difficulties in ‘concentration, persistence, and pace” would limit Plaintiff’s ability to perform ‘simple, repetitive tasks,’ there was valid justification for the ALJ’s omission of more
specific references in the hypothetical”).

41 R. 58.

42 Cf. Russo v. Astrue, 421 F. App’x 184, at *7 (3d Cir. 2011) (not precedential) (holding that a hypothetical question that included the limitation that the person “would not have a quota to fulfill” accounted for moderate difficulties with concentration, persistence, pace, and decompensation episodes).

govt. agencies - statute of limitations - "nullum tempus" doctrine waived

Selinsgrove Area School District v. Lobar, Inc. - Cmwlth. Court - September 27, 2011


http://www.pacourts.us/OpPosting/Cwealth/out/2310CD10_9-27-11.pdf


In Delaware County v. First Union Corporation, this Court explained:

The doctrine of nullum tempus occurrit regi generally provides that statutes of limitations do not bar actions brought by a state or its agencies. „Under the doctrine of nullum tempus, statutes of limitations are not applicable to actions brought by the Commonwealth or its agencies unless a statute expressly so provides.‟
929 A.2d 1258, 1261 (Pa. Cmwlth. 2007) (quoting City of Phila. v. Lead Indus. Ass’n, Inc., 994 F.2d 112, 118 (3d Cir. 1993)).

Although nullum tempus would ordinarily apply in a case where a school district is suing for damages resulting from negligence in the construction of its facilities,3 in this particular instance the District created and entered into a contract with Lobar which included a clause that defined the timeframe wherein claims could be brought. The issue of whether the District can contractually waive its right to invoke the doctrine of nullum tempus is a matter of first impression.



This Court has held that nullum tempus can in fact be waived. Specifically, this Court found that the doctrine “is subject to waiver when the sovereign plaintiff fails to assert its rights.” Twp. of Ind. v. Acquisitions & Mergers, Inc., 770 A.2d 364, 372 (Pa. Cmwlth. 2001). The issue before this Court thus becomes whether the District did in fact waive the doctrine by contractual provision.


We hold that where a Commonwealth agency has offered and entered into a contract addressing applicable statutes of limitations with no mention of the nullum tempus doctrine, it would be fundamentally unfair and contrary to public policy in general to permit the agency to nullify provisions of the same contract by subsequently invoking the doctrine. Accordingly, with respect to the contract at issue, we hold that the trial court properly found that the District waived any applicability of the doctrine of nullum tempus.

UC - vol. quit - severance package

Munski v. UCBR - Cmwlth. Court - September 27, 2011 - precedential, reported

http://www.pacourts.us/OpPosting/Cwealth/out/193CD11_9-27-11.pdf

The claimant has the burden of establishing that necessitous and compelling reasons existed for leaving his employment. Empire Intimates v. Unemployment Compensation Board of Review, 655 A.2d 662 (Pa. Cmwlth. 1995).

The claimant must establish "that [he] acted with ordinary common sense in quitting [his] job, that [he] made a reasonable effort to preserve [his] employment, and that [he] had no other real choice than to leave [his] employment." Id. at 664.

In the context of downsizing, we have explained that "mere speculation about one‟s future job circumstances, and attendant benefits, without more, does not render a decision to voluntarily terminate employment necessitous and compelling." Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714, 717 (Pa. Cmwlth. 2005).

The Referee found that Claimant was offered a voluntary EISP and neither Claimant‟s supervisor nor other members of management informed him that his position would be eliminated if he rejected the offer. In light of that factual finding, the Referee concluded that Claimant voluntarily terminated his employment by accepting the plan. Therefore, Claimant did not have a necessitous and compelling reason to resign. Claimant appealed to the Board. The Board adopted the findings and conclusions of the Referee and affirmed without further opinion. The Court affirmed the Board.

(1) FDCPA can protect non-debtors, e.g., husband of debtor (2) intrusion upon seclusion (3) liability of parent company for subsidiary's acts

Berk v. JP Morgan Chase - ED Pa. - September 23, 2011



http://www.paed.uscourts.gov/documents/opinions/11D1079P.pdf



Protection of non-debtors

The FDCPA protects individualswho are not debtors provided “such persons . . . claim they are harmed by proscribed debt collection practices.” Yentin v. Michaels, Louis & Assocs., Inc., Civ. A. No. 11-0088, 2011 WL 4104675 at *17 (E.D. Pa. Sept. 14, 2011) (internal quotation marks omitted); see also H.R. Rep. No. 95-131, at 8 (1977) (“P]eople who do not owe money, but who may be deliberately harassed are the family, employer and neighbors of the consumer . . . are also protected by [the FDCPA].”) Plaintiff here has alleged damages, including his emotional distress, as well as physical symptoms related to his heart condition as a result of the debt collector's conduct.



Intrusion upon seclusion

A claim for intrusion upon seclusion requires a showing of “conduct demonstrating ‘an intentional intrusion upon the seclusion of [a plaintiff’s] private concerns whichwas substantial and
highly offensive to a reasonable person, and [must] aver sufficient facts to establish that the information disclosed would have caused mental suffering, shame or humiliation to a person of
ordinary sensibilities.’” Boring v. Google Inc., 362 Fed. Appx. 273, 278-79 (3d Cir. 2010) (quoting Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 809 A.2d 243, 247 (Pa. 2002)).



Pennsylvania has adopted the definition of intrusion upon seclusion as set out inRestatement (Second) of Torts, § 652B. Larsen v. Phila. Newspapers, Inc., 543 A.2d 1181, 1187 (Pa. Super. Ct. 1988).Under this definition, there is no liability for a person who demands payment of a debt unless “the telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff, that [it] becomes a substantial burden to his existence, that his privacy is invaded.” Restatement (Second) of Torts, § 652B cmt. d (emphasis added).



The Court finds that Plaintiff alleges sufficient facts to support a claim for intrusion upon seclusion under Pennsylvania law. Plaintiff alleges that Defendants contacted Plaintiff on approximately twenty or more occasions over two years, at three residences, and on four telephone lines. (Am. Compl. ¶ 1.) Plaintiff also alleges that these calls persisted even after Defendants were advised that Nancy Berk was Plaintiff’s former wife and he knew nothing about the alleged debt. (Id. ¶ 142.) These allegations are sufficient to support a claim for intrusion upon seclusion. Compare Desmond v. Phillips & Cohen Assoc., Ltd., 724 F. Supp. 2d 562, 568 (W.D. Pa. 2010) (allowing intrusion upon seclusion claim to go to the jury based on debt collector’s fourteen calls, four letters, and several messages left on the plaintiff’s answering machine, holding that whether the intrusion was “highly offensive to a reasonable person is a question of fact for the jury to decide.”), with Stuart v. AR Res., Inc., Civ. A. No. 10-3520, 2011 WL 904167 (E.D. Pa. March 16, 2011) (dismissing intrusion upon seclusion claimdespite defendant debt collector’s persistent phone calls and profane and abusive language because the of failure to plead the number or substance of calls).



Liability of parent company for acts of subsidiary

The Third Circuit has emphasized that “mere ownership of a subsidiary does not justify the imposition of liability on the parent.” Pearson v. Component Tech. Corp., 247 F.3d 471, 484 (3d Cir. 2001). Instead, parental liability for a subsidiary’s acts is appropriate either when a subsidiary is not a separate and independent corporation, but rather the alter ego of the parent company, or if the subsidiary is an agent for the parent in a specific transaction. Phoenix Canada Oil Co. v. Texaco, Inc., 842 F.2d 1476-77 (3d Cir. 1988). To determine if two corporations are separate, courts consider “adequacy of capitalization, overlapping directorates and officers, separate record keeping, payment of taxes and filing of consolidated returns,maintenance of separate bank accounts, level of parental financing and control over the subsidiary, and subsidiary authority over day-to-day operations.” Id. at 1476.


Chase argues that Berk sets forth no allegations of wrongdoing by Chase Co., but rather he seeks to hold Chase Co. liable for the acts of another. However, Plaintiff alleges both overlapping
officers and authorityover day-to-day operations, aswell as specific actions taken by Chase Co. Berk alleges that he forwarded theMemeger letter to Chase Co.’s general counsel and to amember of the Chase Co. Board of Directors. Plaintiff also alleges that he received a call from Russell, who stated that he was calling at the direction of the Chase Co. general counsel. Plaintiff also alleges a letter that he sent to Chase Co. general counsel, which was responded to by Palladino from Chase Auto Finance. Finally, Plaintiff alleges that the three
Chase Defendants all maintain principal offices at the same location. Plaintiff sufficiently alleges actions undertaken either by or at the direction of Chase Co. Thus, the Court
denies Chase’s motion to dismiss any remaining claims against Chase Co., and Plaintiff’s claim for intrusion upon seclusion against Defendants JPMorgan Chase Bank, N.A. (“Chase Bank”),
JPMorgan Chase & Co. (“Chase Co.”) will remain.

Admin. law - finding of fact "wholly inapplicable" to claimant - remand

Spence v. UCBR - Cmwlth. Court - September 23, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/412CD11_9-23-11.pdf

Claimant quit her job and applied for UC. The UCBR denied her claim, adopting the referee's findings, and making its own additional finding that the "[Board] after considering the entire record in this matter, concludes that the determination made by the Referee is proper under the [Law]. The Board specifically finds the claimant incredible that the father of her two young children could not watch the children while the claimant worked. Therefore, the Board adopts and incorporates the Referee’s findings and conclusions …."

It is undisputed that Claimant is a single mother of one child and that the finding "directly conflicts with the facts of record." Her appeal is not predicated upon a single erroneous finding that is unnecessary to the ultimate disposition. Claimant appeals because the Order appears wholly inapplicable to her case.

Although the finding set forth by the Board is not necessary to the conclusion regarding eligibility for benefits under Section 402(b) [the case involved a voluntary retirement package], its inclusion calls into question whether the Board was reviewing the record pertaining to Claimant. Where nothing in the body of the Order references Claimant, and the single specific finding does not pertain to Claimant, we must remand to ensure due process. Beddis v. UCBR, 6 A.3d 1053 (Pa. Cmwlth. 2010) (claimant is entitled to due process in UC proceedings); see, e.g., Aluminum Co. of Amer. (Alcoa) v. UCBR, 324 A.2d 854 (Pa. Cmwlth. 1974).

UC - offer of suitable work - notice to UCSC - 43 P.S. §802(a)

Barnett v. UCBR - Cmwlth. Court - September 20, 2011 - unreported memorandum decision



http://www.pacourts.us/OpPosting/Cwealth/out/314CD11_9-20-11.pdf



The Employer failed to comply with Section 402(a) of the Law, which states that an employer that offers suitable work to a claimant must notify the UC Service Center “of such offer within seven (7) days after the making thereof.” 43 P.S. §802(a). Claimant does not challenge the finding that Employer’s notice was six days late, i.e., 13 days after it offered Claimant her former job.



This Court has held that strict compliance with the notice provision of Section 402(a) is not required where it would be inconsistent with the objectives of the Law and where the claimant is not prejudiced by the delay. McKeesport Hospital v. UCBR, 619 A.2d 813, 815 (Pa. Cmwlth. 1992). In McKeesport Hospital, notice to the UC Service Center was five days late. This Court held that the notice requirement of Section 402(a) was directory and not mandatory, stating that "we cannot declare claimants to be eligible and grant them benefits merely as a result of rigid application of technical standards where, otherwise, said claimants are clearly ineligible. To do so would be inconsistent with the fundamental purpose and intent of the Act, which is to provide a semblance of economic security to those who are unemployed through no fault of their own. Id. (quoting Barillaro v. UCBR, 387 A.2d 1324, 1328 (Pa. Cmwlth. 1978)).



We explained that Section 402(a) acts as a time bar to an Employer’s recall request only when the delay in notifying the unemployment authorities is so great that it prejudices the claimant. For example, prejudice to a claimant may occur where the claimant receives benefits to which she is not entitled and becomes subject to “no fault recoupment.” Here, Claimant does not claim that she was prejudiced by Employer’s delay; rather, she argues that Section 402(a) demands strict compliance. That is simply not the case, as was established in McKeesport Hospital. Based on this Court’s holding in that case, and the fact that the delay in the present case was only one day longer, we hold that Employer fundamentally complied with Section 402(a)’s notice provision. Claimant, who has neither alleged nor demonstrated she was prejudiced by Employer’s six day delay, may not invoke that notice provision to overcome her ineligibility for benefits.



_________________



The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

disability - ALJ failure to consider, discuss all relevant evidence - Mag. Judge v. ALJ - remand

Miller v. Astrue - ED Pa. - September 2011

http://www.paed.uscourts.gov/documents/opinions/11D1040P.pdf

According to the Court of Appeals for the Third Circuit, “an ALJ may not reject pertinent or probative evidence without explanation.” Johnson, 529 F.3d at 204. An “ALJ’s failure to explain his implicit rejection of [] evidence or even to acknowledge its presence [is] error.” Cotter, 642 F.2d at 707. Here, the ALJ implicitly rejected evidence provided in Drs. Swamy’s and Hoch’s RFCs that addressed Miller’s ability to sit, stand/walk, and stoop, and was inconsistent with the ALJ’s finding that Miller can perform light work. Additionally, the ALJ failed to acknowledge the existence of other probative medical evidence.

The ALJ’s failure to discuss and/or explain his reasons for rejecting relevant medical evidence makes it impossible to determine whether the ALJ reached the right result in this case.1 See Cotter, 642 F.2d at 706-07 (“[A]n explanation from the ALJ of the reason why probative evidence has been rejected is required so that a reviewing court can determine whether the reasons for rejection were improper.”)

Because it is impossible to know whether the ALJ properly determined that Miller can perform light work, given the ALJ’s treatment of the probative objective medical evidence, I will remand this case to the Commissioner so that the ALJ can properly consider step four.2 On remand, the ALJ must make specific findings as to all of the probative medical evidence and explain the reasons for rejecting any of this evidence.

n. 2 - The Magistrate Judge recommends that I deny Miller’s request for review of the Commissioner’s final decision to deny benefits. This recommendation is not based on the ALJ’s opinion; rather, it is based on evidence that the Magistrate Judge culled from the records Miller submitted to the ALJ, which the ALJ neglected to mention in his opinion. The Magistrate Judge relies on this additional information to fashion an explanation as to why the ALJ concluded that Miller is capable of performing light work, even though this explanation is lacking in the ALJ’s opinion. The Magistrate Judge must have recognized the deficiencies in the ALJ’s opinion and attempted to correct them by providing her own explanation for the ALJ’s opinion based on the additional evidence that she independently gathered from the record. Despite this valiant effort, it was error for the Magistrate Judge to have done so. See Fargnoli, 247 F.3d at 44 n.7 (explaning that a district court can’t attempt to rectify “the ALJ’s failure to consider all of the relevant and probative evidence, . . . by relying on medical records found in its own independent analysis, and which were not mentioned by the ALJ”).

Consumer - duty of good faith and fair dealing - no indpt. cause of action

Boeynaems v. LA Fitness - ED Pa. - September 12, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1035P.pdf

Section 205 of the Restatement (Second) of Contracts states that “[e]very contract imposes on each party a duty of good faith and fair dealing in its performance and its enforcement[.]” Kamco Indus. Sales, Inc. V. Lovejoy, Inc., No. 09-1407, 2011 WL 891825, at -24-*7 (E.D. Pa. Mar. 10, 2011) (Pollak, J.) (quoting Ash v. Cont’l Ins. Co., 932 A.2d 877, 884 n. 2 (Pa. 2007)).

Many courts sitting in diversity have predicted that the Pennsylvania Supreme Court will adopt Section 205 to hold that every contract includes an implied duty of good faith and fair dealing. See id. at *8 (collecting cases). However, even the Pennsylvania Supreme Court has recognized a conflict amongst Pennsylvania lower courts regarding whether that implied duty creates a cause of action. Id.

As the undersigned discussed at length recently, concerning claims by contracting parties, in Goleman v. York Intern. Corp., No. 11–1328, 2011 WL 3330423 (E.D. Pa. Aug. 3, 2011) (Baylson, J.), “[u]ntil the Pennsylvania Supreme Court holds otherwise, this Court is inclined to conclude there is no independent cause of action for breach of a duty of good faith and fair
dealing.” Id. at *6-7 (citing Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 617 (3d Cir. 1995)). See also LSI Title Agency, Inc. v. Evaluation Servs., Inc., 951 A.2d 384, 391
(Pa. Super. Ct. 2008) (“This court finds that Pennsylvania law would not recognize a claim for breach of [a] covenant of good faith and fair dealing as an independent cause of action separate
from the breach of contract claim since the actions forming the basis of the breach of contract claim are essentially the same as the actions forming the basis of the bad faith claim.”). The
Court concludes, instead, that “a breach of the implied covenant of good faith and fair dealing merges with a breach of contract claim.” Zaloga v. Provident Life and Accident Ins. Co. of Am.,
671 F. Supp. 2d 623, 631 (M.D. Pa. 2009) (Kosik, J.) (citing Meyer v. Cuna Mut. Group, No. 03-CV-602, 2007 WL 2907276, at *14-15 (W.D. Pa. Sept. 28, 2007)). Consistent with the Court’s interpretation of Pennsylvania law, the Boeynams Plaintiffs have, in fact, subsumed their allegations of Defendant’s breach of the implied duty of good faith and fair dealing within their breach of contracts claims.

Plaintiffs’ allegations regarding the breach of this implied duty simply incorporate by reference the allegations supporting the breach of contract claims and Plaintiffs allege no additional facts in support. The Court has determined that Boeynams and the Cohens have failed to state a claim for breach of contract and, thus, cannot raise an independent claim for the breach of the implied duty of good faith and fair dealing. To the extent that Silver has stated a claim for breach of contract and attempts to rely on those identical facts in support for a contractual good faith claim, this Court concludes that such a claim must merge with Silver’s breach of contract claim.

While Florida law recognized an implied covenant of good faith and fair dealing associated with every contract, “a breach of this covenant – standing alone – does not create an independent cause of action.” Intertape Polymer Corp. v. Inspired Technologies, Inc., No. 6:09-cv-289-Orl-GAP-GJK, 2010 WL 2776510, at *4 (M.D. Fla. July 14, 2010) (Presnell, J.) (citing Centurion Air Cargo v. UPS Co., 420 F.3d 1146, 1151 (11th Cir. 2005)). Such a claim must not only attach to the “performance of a specific contractual obligation,” Onuss Ortak Nokta Uluslararasi Haberlesme Sistem Servis Bilgisayar Yazilim Danismanlik ve Dis Ticaret Limited Sirketi v. Terminal Exchange, LLC, No. 09-80720-CIV-MARRA, 2010 WL 935972, 3 (S.D. Fla. Mar. 10, 2010) (Marra, J.) (citing Centurion Air, 420 F.3d at 1151; Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So. 2d 787, 792 (Fla. Dist. Ct. App. 2005)), it “cannot be advanced when the allegations underlying that claim are duplicative of the allegations supporting the breach of contract claim[,]” id. (citing Enola Contracting Svcs, Inc. v. URS Group, Inc., No. 5:08cv2-RS-EMT, -26- 2008 WL 1844612, at* 3 (N.D. Fla. Apr. 23, 2008); Trief v. Am. Gen.Life Ins. Co., 444 F. Supp. 2d 1268, 1270 (S.D. Fla. 2006); Shibata v. Lim, 133 F. Supp. 2d 1311, 1319 (M.D. Fla. 2000)).