UC - reconsideration - good cause

Laster v. UCBR – Cmwlth. Court – November 26, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/151CD13_11-26-13.pdf?cb=1

Claimant had problems with her supervisor.  When they reviewed a written report of the supervisor, claimant said she wasn’t accusing the supervisor of lying but one statement in the report was a lie.  Claimant was fired and referee found she'd committed willful misconduct.

Claimant timely appealed to the UCBR, which determined that although Employer had the right to discharge Claimant, Claimant’s statement to her supervisor that the supervisor was lying was not willful misconduct. (UCBR’s Decision, 10/12/12, at 3.) The UCBR explained:

 

The claimant may not have used the most appropriate language by spontaneously saying that it was a lie. The employer may have had reason to determine that the claimant could no longer work with her supervisor. However, the claimant’s comment was not so egregious as to rise to the level of disqualifying willful misconduct.

Therefore, the UCBR reversed the referee’s decision and awarded Claimant benefits.

By letter dated October 26, 2012, Employer requested reconsideration of the UCBR’s decision. In the five-page letter, Employer objected to Claimant’s petition for appeal to the UCBR, claiming that it was improperly filed by a different counsel than was present at the referee’s hearing and that it was replete with inaccurate and misleading statements. Employer also outlined numerous “inaccuracies” in the UCBR’s findings of fact and offered Employer’s “corrected” version of the facts.

The UCBR granted Employer’s request for reconsideration and vacated its prior order. The UCBR did not state any reason for granting reconsideration and did not take any additional evidence. The UCBR then entered a new order affirming the referee’s denial of benefits under section 402(e) of the Law. The UCBR concluded:

The claimant stated the supervisor was lying. At that point, the employer had reason to determine that the claimant could no longer work with her supervisor. However she phrased it, the claimant accused her supervisor of lying at a meeting with the Executive Director. That amounts to disqualifying willful misconduct.

Claimant requested reconsideration of the UCBR’s decision, which the UCBR denied.

In her petition for review, Claimant asserts that the UCBR abused its discretion in granting reconsideration and vacating its October 12, 2012, order without good cause. We agree.

The UCBR’s regulations provide that reconsideration will be granted “only for good cause in the interest of justice without prejudice to any party.” 34 Pa. Code §101.111(b). “In determining whether ‘good cause’ exists, the [UCBR] must consider whether the party requesting reconsideration has presented new evidence or changed circumstances or whether [the UCBR] failed to consider relevant law.” Ensle v. Unemployment Compensation Board of Review, 740 A.2d 775, 779 (Pa. Cmwlth. 1999). None of these requirements was met in this case.

In its reconsideration request, Employer did not allege a change of circumstance, seek to introduce new evidence that was unavailable at the time of the hearing, or articulate any legal theory that the UCBR failed to consider in its initial decision. Employer merely reargued its case before the UCBR, which is not “good cause” for granting reconsideration. See Bushofsky v. Unemployment Compensation Board of Review, 626 A.2d 687, 690 (Pa. Cmwlth. 1993) (stating that reconsideration is properly denied where the petitioner seeks to introduce “the evidence already offered”); Grcich v. Unemployment Compensation Board of Review, 440 A.2d 681, 682-83 & n.1 (Pa. Cmwlth. 1982) (holding that the UCBR improperly granted reconsideration and reversed its prior order where “the only additional factual elements contained in the record” after the UCBR’s initial decision were two employer letters asserting that the UCBR “‘completely ignore[d] the testimony of every witness except [claimant]’” and committed other improprieties) (quoting the record); see also Ensle, 740 A.2d at 779-80 (noting that the UCBR may not grant reconsideration merely to revisit credibility issues).

Moreover, “before the [UCBR] agrees to reconsider its own decision[,] there must appear of record some reason to support this exercise of discretion.” Flanagan v. Unemployment Compensation Board of Review, 407 A.2d 471, 473 (Pa. Cmwlth. 1979). Here, nothing in Employer’s reconsideration request, the UCBR’s order granting reconsideration, or the record demonstrates good cause. In addition, because the UCBR failed to state its reason for granting reconsideration and took no additional evidence, Claimant had no opportunity to present her position on the issue or issues being reconsidered. The UCBR acted in direct conflict with its own regulation, which states that reconsideration is proper “only for good cause in the interest of justice without prejudice to any party.” 34 Pa. Code §101.111(b). Therefore, we conclude that the UCBR abused its discretion in granting reconsideration without good cause.

Judgment - execution - entireties property - separate judgments v. spouses cannot be combined

ISN Bank v. Rajaratnam – Superior Cour – November 25, 2012

http://www.pacourts.us/assets/opinions/Superior/out/J-A26018-13o%20-%201016301321817376.pdf?cb=1

Appellant, ISN Bank appeals from the order of the trial court dated January 24, 2013 denying a motion to consolidate two judgments, one each against Appellees, a married couple.

This case presents an issue of first impression for Pennsylvania appellate courts, namely whether separate judgments entered against a husband and wife may be consolidated so that assets held as tenants by the entireties may be executed upon to satisfy a joint indebtedness. For the reasons that follow, we conclude that they may not be consolidated and affirm the trial court’s order.

No procedural mechanism exists in Pennsylvania to consolidate judgments against different people. Rule 3025.1 of the Pennsylvania Rules of Civil Procedure authorizes the consolidation of “two or more judgments entered against the same person in the same county,” Pa.R.C.P. 3025.1, but no similar rule sanctions the consolidation of two or more judgments entered against different people (whether husband and wife, or otherwise).

Even if a procedural mechanism did exist for consolidating judgments against different people, Pennsylvania substantive law would not permit consolidation in this case. In this regard, we begin with the 1912 decision in Beihl v. Martin, 236 Pa. 519, 84 A. 953 (1912), in which our Supreme Court discussed “the modern innovations on the common law respecting the property rights of married women.” Id. at 522, 84 A. at 954.

One is the basic attributes of property held in a tenancy by the entireties is that, fundamentally the estate rests on the legal unity of husband and wife. It is therefore a unit, not made up of divisible parts subsisting in different natural persons, but is an indivisible whole, vested in two persons actually distinct, yet to legal intendment one and the same. Each is seised of the whole estate from its inception, and upon the death of one, while the right of survivorship remains to the other, that other takes no new title or estate. It is this striking peculiarity of the estate—the entirety alike in husband and wife—that operates to exempt it from execution and sale at the suit of a creditor of either separately. The enforcement of such process would be the taking of the property of one to pay the debt of another. Id. at 522-23, 84 A. at 954. Because of this “striking peculiarity,” the Supreme Court observed that any disposition of property held as tenants by the entireties must be based upon a “joint act” of husband and wife together.

Based upon the basic principles established in Beihl, the law of Pennsylvania has developed to provide that in order to execute upon property held as a tenancy by the entireties, a creditor must obtain a judgment against both the husband and the wife as joint debtors: The law of Pennsylvania is quite clear that a judgment creditor may execute on entireties  property to enforce his judgment if both spouses are joint debtors. However, if only one spouse is a debtor, entireties property is immune from process, petition, levy, execution or sale. In the latter situation, the judgment creditor has only a potential lien against property held by the entireties based on the debtor spouse's expectancy to become sole owner. Further, where a husband and wife own property as tenants by the entireties, they may alien it without infringing upon the rights of one spouse's creditors. Klebach v. Mellon Bank, N.A., 565 A.2d 448, 450 (Pa. Super. 1989) (citations omitted); see also Arch Street Bldg. & Loan Assn. v. Sook, 158 A. 595, 596 (Pa. Super. 1932) (“In order to bind the land held by entireties, judgment must include both of the parties.”); Napotnik v. Equibank and Parkvale Sav. Ass'n, 679 F.2d 316, 321 (3d Cir. 1982)  (“[A] creditor with a joint judgment on a joint debt may levy upon the property itself and thus upon the interests of both spouses.”).

 Beihl establishes the requirement of “joint action” by spouses to permit execution on property held as a tenancy by the entireties, but did not address what type of “joint action” is required of spouses to create a joint debt to permit an encumbrance. Beihl does not resolve the question of whether the “joint action” requirement must be satisfied by the performance of a single act performed by husband and wife together, or if instead separate acts resulting in the same indebtedness will suffice. In this case, Customers Bank contends that although the two judgments at issue here resulted from separate acts (i.e., signing two different guarantee agreements), the end result of these separate acts was a joint indebtedness of the Rajaratnams, thus permitting consolidation of the judgments to reach their entireties property to satisfy said joint indebtedness.  

 As noted, no Pennsylvania appellate court has addressed this issue. In A. Hupfel’s Sons v. Getty, 299 F. 939 (3d Cir. 1924), however, the Third Circuit Court of Appeals, applying Pennsylvania law, considered whether  separate acts by spouses resulting in a joint indebtedness may result in the encumbrance of entireties property under the principles set forth in Beihl. While the decision in A. Hupfel’s Sons is not binding upon this Court, we may consider it as persuasive authority on the issue now before this Court. See, e.g., Commonwealth v. Dunnavant, 63 A.3d 1252, 1255 n.2 (Pa. Super. 2013), appeal granted on other grounds, __ Pa. __, 73 A.3d 524 (2013).

 We agree with the Third Circuit that separate actions by spouses resulting in separate judgments are not sufficient to encumber entireties property.2 To establish a joint debt that may serve as the basis for a lien on entireties property, the two spouses must act together in the same transaction and in so doing incur a joint liability.3 Only by acting together will the spouses satisfy Beihl’s “joint action” requirement, as their mutual decision to incur a joint debt demonstrates a willingness to “strip the estate of its attributes and create a wholly different estate in themselves.” Beihl, 236 Pa. at 527-28, 84 A. at 956. In the present case, the separate judgments against the Rajaratnams were entered pursuant to separate documents, in separate transactions, and for separate considerations.

default judgment - 10-day notice - specific reasons - facial defect - motion to strike - timeliness not a factor

Oswald v. WB Public Square Association – Pa. Super. November 7, 2012

http://www.pacourts.us/assets/opinions/Superior/out/J-A11020-13o%20-%201016116211795813.pdf?cb=1

Under Pa. R.C.P. 237.1(a)(2), a notice of intent to take default judgment must include the specific reasons why the defendant is in default.   The language in the form specified by the rule states that "you are in default because….. [emphasis added].  The rule requires more than merely stating the the defendant is in default for failure to take action required in the case – which was the language required under the pre-1994 rule.

This decision is based in large part on the Cmwlth. Court decision in David J. Lane Advertising, 33 A.3d 674 (Pa. Cmwlth. ) which the Superior Court found "highly instructive." 

A notice which does not comply with the rule is defective on its face and is not subject to the discretion of the trial court.  It is a "fatal defect on the face of the record" and "cannot support a default judgment."  Therefore, it is "void ab initio" and timeliness of the petition to strike is not a factor as it would be for a judgment was merely voidable.  The prothonorary is "without authority" to enter such a void judgment, which is a "legal nullity" and "must be stricken without regard to the passage of time."

Sec. 1983 - "under color of state law"

Washington-Pope v. City of Philadelphia – ED Pa. – October 22, 2013 (58 pp)

http://www.paed.uscourts.gov/documents/opinions/13D0882P.pdf

Officer Yolaina Washington-Pope’s harrowing ordeal raises the question of whether an on-duty, in-uniform police officer, who raises his service weapon to his partner’s temple as their exchange of words in their police cruiser rapidly escalates, acts under color of state law for purposes of 42 U.S.C. § 1983. Although the facts of this case and Ms. Washington-Pope’s experiences are doubtlessly distressing, the Third Circuit Court of Appeals’ precedent, the acknowledged purposes of § 1983, and more analogous case law from other courts constrain this Court to answer that question in the negative. This case serves as a sobering reminder that federal law does not provide a remedy for every wrong or even every horrifying injury.

consumer - debt collection - notice - debt disputed

Hillman v. NCO Financial Systems – ED Pa. – Sept. 25, 2013

http://www.paed.uscourts.gov/documents/opinions/13D0803P.pdf

Under the statute, a debt collector must send a consumer a written notice containing, inter alia,  a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector.  15 U.S.C. § 1692g(a)(4) (emphasis added).

In his allegations, plaintiff focuses on the fact that the sentence of the Letter that begins, “If you notify this office in writing within 30 days . . . .” fails to contain the words “that the debt, or any portion thereof, is disputed.”

The flaw in plaintiff’s argument is that a consumer, as a matter of law, does not specifically need to identify a dispute in writing, as plaintiff claims, to exercise the right to verification. “[U]nder the FDCPA, requesting verification is sufficient to trigger a debt collector’s verification obligations. ‘Dispute’ is a term of art in FDCPA parlance that means a request to verify the existence of a debt.” Gruber v. Creditors’ Protection Service, No. 12-cv-1243, 2013 WL 2072976, at *2 (E.D. Wis. May 14, 2013) (citing DeKoven v. Plaza Assocs., 599 F.3d 578, 582 (7th Cir. 2010)). Because the consumer need not include the actual word “dispute” in a request for verification, defendant’s failure to instruct the consumer to do so is inconsequential.

private right of action

Assn. of New Jersey Rifle and Pistol Clubs – Port Authority – 3d Cir. – September 16, 2013

http://www2.ca3.uscourts.gov/opinarch/123621p.pdf

Held, that Plaintiff did not have a private right of action under 18 US  926A concerning the transportation of firearms in interstate commerce. 

UC - vol. quit - change of conditions - health problems - long commute

Karwowski v. UCBR – Sept. 12, 2013 – Cmwlth. Court

http://www.pacourts.us/assets/opinions/Commonwealth/out/2301CD12_9-12-13.pdf?cb=1

The Court (2-1) reversed the UCBR and held that a claimant with a 240 round-trip daily commute, which resulted in health problems, had good cause to quit the job.  Both parties attended the referee hearing, but only the Claimant testified.

The job was in North Carolina and paid 1/3 of what he made from his last job, which he had lost a year before.  He worked for about three weeks.

Before starting the job, Claimant searched for an apartment closer to work but found the cost range to be too expensive for him to pay, in light of the fact that Claimant was trying to maintain his current residence.) After starting the job, Claimant continued to look for an apartment and also sought help from Employer’s human resources department.  For two weeks, Claimant completed the five-hour, round-trip commute.  Claimant testified that he suffered severe anxiety and stress because of the commute. He was vomiting at work, and his family grew concerned about his safety.  The travelling adversely impacted his sleep, and several times he nearly fell asleep on the drive home. Claimant voluntarily quit, telling Employer that he was taking his career in a different direction.

Capricious disregard

Where, as here, the burdened party “is the only party to present evidence and did not prevail before the UCBR, our scope of review on appeal is whether the UCBR committed an error of law or capriciously disregarded the evidence.” See Eby v. Unemployment Compensation Board of Review, 629 A.2d 176, 178 (Pa. Cmwlth. 1993). While this formulation of the capricious disregard standard was subsumed by the Supreme Court decision in Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), it still remains viable. Hinkle v. City of Philadelphia, 881 A.2d 22, 27 n.9 (Pa. Cmwlth. 2005) (providing a detailed description of the proper application of the capricious disregard standard post-Wintermyer). Where only one party presents evidence, as is the case here, the failure to credit such evidence is a per se violation of that standard.

Findings of fact not supported by substantial evidence

Claimant challenges the UCBR’s Finding of Fact Number 6, which states: “The claimant spoke with a human resources representative, who referred the claimant to another employee who had found an apartment near the employer’s site, at a reasonable price.”  Claimant argues that no evidence supports the UCBR’s introduction of the “at a reasonable price” language. We agree.   Claimant testified that he could not find an affordable apartment. There was no other evidence about the cost of nearby apartments. Thus, we agree with Claimant that this finding is not supported by any evidence, and we disregard it insofar as it implies that Claimant could afford a nearby apartment.

Claimant next challenges the UCBR’s Finding of Fact Number 7, which states: “The claimant did not consider sharing an apartment with a roommate.” (UCBR’s Findings of Fact, No. 7.) Nothing in the record indicates that Claimant did or did not consider sharing an apartment with a roommate. Moreover, nothing requires an employee to consider sharing an apartment with a roommate. Thus, we agree with Claimant that this finding is not supported by any evidence, and we disregard it.

 Claimant also challenges the UCBR’s Finding of Fact of Number 8, which states: “The claimant did not speak to his direct supervisor about the transportation problem.” (UCBR’s Findings of Fact, No. 8.) However, Claimant discussed the situation with his direct supervisor in order to modify his work schedule. (N.T. Ex. 5 at 2.) Employer presented no contradictory evidence at the hearing. Therefore, we agree that no evidence supports this finding, and we disregard it.

No reasons given for disregarding unchallenged finding by referee

The UCBR also disregarded the referee’s Finding of Fact Number 6, which stated: “The claimant contacted 3 realtors for information on apartments.” “The [UCBR] may not . . . simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its reasons for doing so.” Treon v. UCBR, 499 Pa. 455, 460, 453 A.2d 960, 962 (1982). Claimant unambiguously testified that he contacted three real estate agents. Employer presented no contradictory evidence. If the UCBR did not credit or believe Claimant’s testimony, it needed to provide an explanation for disregarding the testimony to avoid abusing its discretion under the capricious disregard standard. See Hinkle, 881 A.2d at 27. Moreover, this finding of fact is not trivial or irrelevant because it highlights the efforts that Claimant made to find affordable housing near the jobsite. Thus, the UCBR erred in disregarding this finding without stating its reason for doing so, and we will consider this finding in determining whether Claimant had a necessitous and compelling reasons for voluntarily quitting.

“To be eligible for unemployment benefits under Section 402(b), a claimant has the burden of establishing a necessitous and compelling reason for voluntarily terminating his or her employment.” ….A claimant must demonstrate circumstances “‘which produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.’” ……Treon, 499 Pa. at 462, 453 A.2d at 963 (citation omitted) (finding that commute of over 300 miles created real and substantial pressure to compel a reasonable person to terminate his employment). “The crux of an inquiry in determining whether a claimant had cause of a necessitous and compelling nature for leaving his or her work is whether the offered work was suitable.” Speck, 680 A.2d at 29-30.  Section 4(t) of the Law lists factors to consider in determining the suitability of work including: “the distance of the available work from his residence” and “the permanency of his residence.” 43 P.S. §753(t).

Change of conditions not related to employer action

In Shaw v. UCBR,, 406 A.2d 608, 609 (Pa. Cmwlth. 1979), an employee accepted a position 100 miles away from his residence, knowing that the commute would take two hours to complete. The employee worked at the position for three months before resigning.  This court held that the difficult commute did not constitute a necessitous and compelling cause….Here, because Claimant accepted the position knowing of the arduous commute, we do not view the relatively subtle, factual differences raised by Claimant as distinctions making Shaw inapplicable. Thus, because Claimant accepted the position with Employer, a presumption exists that the position was suitable.

 However, a claimant may successfully assert that employment became unsuitable due to conditions he was not aware of when he took the job. …This court in Shaw noted that “to demonstrate his entitlement to benefits, [a claimant] must overcome that admission by showing a change in his job conditions or a deception by the employer, making him unaware, when he entered the employment relationship, of conditions which he later alleges to be onerous.” ….In other words, the presumption of suitability is rebuttable.

“Medical problems can constitute cause of a necessitous and compelling nature.” Wheelock Hatchery, Inc. v. UCBR, 648 A.2d 103, 107 (Pa. Cmwlth. 1994) (finding necessitous and compelling cause where an employee was denied a modified schedule needed to meet requirements of his substance abuse rehabilitation). “To establish health as a compelling reason for quitting a job a claimant must: (1) offer competent testimony that adequate health reasons existed to justify termination; (2) have informed the employer of the health problem; and (3) be available, where a reasonable accommodation is made by the employer, for work which is not inimical to his health.” Ridley School District v. UCBR 637 A.2d 749, 752 (Pa. Cmwlth. 1994)

Here, Claimant testified that after taking the job he experienced significant health problems as a result of the laborious commute. ….Employer did not contest this testimony. When Claimant accepted the job, he had been unemployed for over a year, and he was desperate enough to take a job paying him one-third of his previous salary. ….While Claimant knew that the commute would be difficult, he could not foresee that significant health complications would arise.  

Claimant informed Employer of his issues, speaking to his direct supervisor and the human resources department. Claimant made significant efforts to turn an impossibly difficult situation into a manageable one by revising his work schedule, looking into transferring to a branch office, researching carpooling, and searching for affordable apartments. When these efforts proved unsuccessful, necessarily, under the circumstances, Claimant made a reasonable decision to resign due to strains on his physical and mental health.

We recognize that Employer did not modify the conditions of Claimant’s employment or deceive him; however, Claimant did not anticipate the stress and anxiety that the long daily commute would cause him. Denying Claimant UC benefits only because he initially accepted the job would penalize him for making a reasonable effort in good faith to seek out and maintain new employment. Had Claimant declined the position, he would still be receiving UC benefits from his previous employer.7

7 In interpreting the Law, we recall that “an unemployed worker in a covered employment is entitled to benefits, and loses them only when he falls under the condemnation of a disqualifying provision of the [Law], fairly, liberally, and broadly interpreted.” Long, 475 A.2d at 192 (citation omitted).

Accordingly, we reverse.

MDJ court - non-attorney rep. personal knowledge of subject matter of litigation

order - http://www.pacourts.us/assets/opinions/Supreme/out/363mag.pdf?cb=1

rule -  http://www.pacourts.us/assets/opinions/Supreme/out/363mag-attach.pdf?cb=1

final report - http://www.pacourts.us/assets/opinions/Supreme/out/363mag-rpt.pdf?cb=1

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

MDJ Rule 207

(B) A representative, employee, or authorized agent:

(1) must provide written verification of personal knowledge of the subject matter of the litigation, and

(2) may take no action on behalf of a party until the written authorization required under paragraph (A)(1), (2), or (3) is filed with the court.

Official Note

This rule is intended to permit a non-lawyer representative, employee, or authorized agent to appear on behalf of an individual, partnership, corporation or similar entity, or

unincorporated association, but not to allow a non-lawyer to establish a business for the purpose of representing others in magisterial district court proceedings.

 

It is intended that the designation of a non-lawyer representative, employee, or authorized agent to represent a party is to apply only on a case-by-case basis. A party may not give blanket authorization for a non-lawyer representative, employee, or authorized agent to represent the party in all cases involving the party.

 

As to ‘‘personal knowledge of the subject matter of the litigation’’ see Pa.R.E. 602 and Comment.

 

A business organized as a sole proprietorship may be represented in the same manner as an individual under paragraph (A)(1).

 

See rules in Chapter 800 as to representation of minors and incapacitated persons by guardians.

UC - vol. quit - transportation problems

RAME Inc. v. UCBR – Cmwlth Court – 9-6-13 – unreported memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/621CD13_9-6-13.pdf?cb=1

For transportation inconvenience to constitute necessitous and compelling cause “a claimant must establish that the inconvenience presented an insurmountable problem and that he took reasonable steps to remedy or overcome the problem prior to terminating employment.” Pollard, 798 A.2d at 817. However, where a claimant makes a laudable effort to maintain employment and is thereafter forced to terminate his employment due to stressful circumstances and insurmountable commuting problems, “the decision to terminate employment rises above mere personal whim or choice and instead represents a reasonable response to causes of a necessitous and compelling nature.” Speck v. Unemployment Comp. Bd. of Review, 680 A.2d 27, 31 (Pa. Cmwlth. 1996).

There is a presumption that an unemployed worker who registers for UC benefits is able and available for work. Penn Hills Sch. Dist. v. Unemployment Comp. Bd. of Review, 496 Pa. 620, 437 A.2d 1213 (1981). Here, Employer offered no evidence that Claimant was not available for work.

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

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.

 

municipal liens - burden of proof - strict compliance

City of Philadelphia v. Manu – Cmwlth. Court – Stpember 6, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/84CD12_9-6-13.pdf?cb=1

All lawfully imposed or assessed municipal claims are liens on the property by operation of law….The Municipal Liens Act provides for a specific, detailed and exclusive procedure that must be followed to challenge or collect on a municipal lien placed in cities of first class, such as the City.


Burden of proof

The City had the burden of proving strict compliance with the requirements of the Act. ….In reviewing each of these mandatory steps, it is apparent that there was not even substantial, let alone strict, compliance. The petition neither listed "all tax and municipal claims," nor gave any sense of their magnitude. …. Nonetheless, the City asserts that its actual lien is for $14,702.99 and, presumably, expects to collect at least that amount from the sale if the proceeds are sufficient.

The City had the burden of proving strict compliance with the requirements of the Act. ….In reviewing each of these mandatory steps, it is apparent that there was not even substantial, let alone strict, compliance. The petition neither listed "all tax and municipal claims," nor gave any sense of their magnitude. The only claim listed in the petition is a lien for unpaid water and sewer rents in the amount of $0. Subsequently, the City filed an amended claim for unpaid taxes in the amount of $657.54. Nonetheless, the City asserts that its actual lien is for $14,702.99 and, presumably, expects to collect at least that amount from the sale if the proceeds are sufficient.


Purpose of tax/sheriff's sales

The purpose of sheriff's sales under the Municipal Liens Act, as well as tax sales under the Real Estate Tax Sale Law,…is not to strip the owner of his or her property but to collect municipal claims. ….


Due process requires strict compliance
Strict compliance with the service requirement protects the procedural due process rights of all interested parties to notice and an opportunity to be heard and also guards against deprivation of property without substantive due process of law. ….The collection of claims may not be implemented without due process of law guaranteed by the United States and Pennsylvania Constitutions…..


Requirement of a hearing
Similarly, the requirement that the court hold a hearing to determine the accuracy of the facts in the City’s petition is an important due process safeguard. This is particularly true when the City is proceeding under …Municipal Liens Act,,,…where no judgment has been entered on the lien.

criminal convictions - expungement - burden of proof

Commonwealth v. Trimble – Superior Court – Sept. 3, 2013

http://www.pacourts.us/assets/opinions/Superior/out/J-S42034-13o%20-%201015387711712738.pdf?cb=1

In this case, the Commonwealth undeniably failed to meet its burden where elected not to oppose, in any way, Appellant’s petition. Thus, the trial court abused its discretion in finding that, “when balancing [Appellant’s] right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records, in this particular case, greater weight must be afforded to the Commonwealth’s  interest in preserving such records,”where the Commonwealth simply did not advance an interest in preserving Appellant’s records. Accordingly, we reverse the order denying Appellant’s petition.

The Superior Court has required the trial court to "balance the individual's right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth's interest in preserving such records." Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877, 879 (Pa. 1981).

The mere assertion by the Commonwealth of a general interest in maintaining accurate records of those accused of a crime does not outweigh an individual's specific, substantial interest in clearing his or her record. Id. at 881-82. In addition, Wexler explicitly placed the burden of proof on the Commonwealth.

In general terms, we held that when the Commonwealth admits that it is unable to bear its burden of proof beyond a reasonable doubt at trial, then "the Commonwealth must bear the burden of justifying why the arrest record should not be expunged." Id. at 880. Commonwealth v. Moto, 23 A.3d 989, 993-94 (Pa. 2011) (emphasis added).

 

UC - willful misconduct - employer rule - good cause for violation

Bell Socialization Services v. UCBR – Cmwlth. Court – August 29, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/414CD13_8-29-13.pdf?cb=1

Claimant had good cause for violating Employer’s work rule requiring that she have reliable transportation, because she did not have sufficient income to repair or replace her vehicle.  Her own vehicle broke down, and her mother's became inoperable because of an accdent.   She earned only $9.00/hour and had a wage garnishment.  Claimant acted justifiably in light of all of the circumstances.   

UC - school employee - sec. 402.1 - layoff prior to end of school year

Chester Community Charter School v. UCBR – Cmwlth. Court – August 27, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/60CD13_8-27-13.pdf?cb=1

A school employee who is laid off prior to the end of a school year is not ineligible under sec. 402.1, even if, as the time of the layoff, she is given reasonable assurance of re-employment at the start of the ensuing school year.

________________________________

This Court has held that the legislature’s intent in enacting Section 402.1 was to eliminate the payment of benefits to employees who were unemployed for predetermined periods of time, but not to employees who become unemployed due to an unanticipated cause.….If a school employee is laid off and receiving benefits prior to the end of the academic term, she remains eligible for benefits during the summer break even if she has a reasonable assurance of work in the next term.

In this case. the claimant received reasonable assurance of returning to work at the start of the 2012-2013 school year. However, claimant was laid off on April 4, 2012, two months prior to the end of the school year; therefore, she was unemployed and eligible to collect benefits. It was not the intent of Section 402.1(2) of the Law to exclude a claimant in such a case.

consumer - arbitration - wrongful death action

Pisano v. Extendicare Homes – Superior Court – August 12, 2013

 http://www.pacourts.us/assets/opinions/Superior/out/J-A17012-13o%20-%201015156611688137.pdf?cb=1

We hold that Pennsylvania’s wrongful death statute creates an independent action distinct from a survival claim that, although derived from the same tortious conduct, is not derivative of the rights of the decedent.

We conclude, therefore, that the trial court did not abuse its discretion in determining that Decedent’s contractual agreement with Belair to arbitrate all claims was not binding on the non-signatory wrongful death claimants.

foreclosure - defective Act 91 - timely assertion

Nationstart Mortgage v. Lark - Superior Court – August 14, 2013

http://www.pacourts.us/assets/opinions/Superior/out/J-S46007-13o%20-%201015172521690158.pdf?cb=1

On appeal, Lark raises a single issue for our consideration and determination, namely whether the trial court erred in denying her motion to set aside the sheriff’s sale because the Act 91 notice she received was defective. She contends that the Act 91 notice was defective because it omitted the name of the original lender (AAKO, Inc.) and listed GMAC as the “current lender/servicer” even though the mortgage was not assigned to GMAC until after the default judgment was entered.

We affirm the trial court’s order denying Lark’s Motion to Set Aside Sheriff’s Sale because Lark failed to raise the issue of the alleged defects in the Act 91 notice in a timely fashion. Section 1681.5(2) of the Homeowner Assistance Settlement Act, 35 P.S. §§ 1681.1-1681.7, enacted on June 22, 2012, provides as follows:

§ 1681.5. Effect of noncompliance with notice requirements in the Homeowner's Emergency Mortgage Assistance Program

* * *

(2) The failure of a mortgagee to comply with the requirements of sections 402-C and 403-C of the Housing Finance Agency Law must be raised in a legal action before the earlier delivery of a sheriff’s or marshal’s deed in the foreclosure action or delivery of a deed by the mortgagor.  35 P.S. § 1681.5(2).

Section 1681.7 provides that the provisions of section 1681.5 are to be applied retroactively to June 5, 1999. 35 P.S. § 1681.7. Here, Lark filed her Motion to Set Aside Sheriff’s Sale on November 28, 2011, raising for the first time the issue of defects in her Act 91 notice. The sheriff’s sale took place on September 13, 2011, and the trial court determined that the sheriff’s deed was delivered on November 15, 2011.  Homeowner did not raise any objections until 13 days later.

Appellee NM LLC denies that the Act 91 notice delivered in this case was defective, but contends that even to the extent that it was defective, Lark failed to allege or prove that she suffered any prejudice as a result. In support of this argument, NM LLC cites to Wells Fargo Bank, N.A. v. Monroe, 966 A.2d 1140 (Pa. Super. 2009). Lark claims that no showing of prejudice is required when an Act 91 notice is defective, citing to this Court’s more recent decision in Beneficial Consumer Discount Co. v. Vukmam, 37 A.3d 596 (Pa. Super. 2012), appeal granted, __ Pa. __, 55 A.3d 100 (2012). As a result of our disposition, we need not address this issue.

custody - relocation

S.J.S. v. M.J.S. – Superior Court – August 7, 2013 (25 pp.)

http://www.pacourts.us/assets/opinions/Superior/out/J-A05028-13o%20-%201015113991683859.pdf?cb=1

Mother's relocation request Erie to Bucks County denied.

The Court rejected mother's argument that, because there was no existing court order, the trial court should have made a custody determination and then engaged in the relocation analysis, rather than, as here, combining the considerations and rendering an order that awarded primary custody contingent on Mother’s ultimate decision on where she would reside.

The Court disagreed with Mother’s claim that the trial court elevated relocation over custody. It specifically stated that it placed no greater emphasis on the relocation factors simply because they were analyzed first. “The Court considers the § 5337(h) factors together with the broader best interests of the children in mind in assessing which party shall be ordered primary physical custodial and whether Mother’s request for relocation will be permitted.”  Under these circumstances, it is unrealistic to compartmentalize the issues. 

The trial court engaged in the proper analysis using both relocation and custody factors, with the best interest standard as the guide. The court may have concentrated on relocation factors, but this was because it recognized that the custody arrangement was in dispute only in the event Mother chose to relocate. The parties recognized this as well.

Burden of proof - Finally, as the party proposing relocation, Mother bears the burden of proving relocation will serve the children’s best interests. See 23 Pa.C.S.A. § 5337(i). Each party, however, has the burden of establishing “the integrity of that party’s motives in either seeking the relocation or seeking to prevent the relocation.” 23 Pa.C.S.A. 5337(i)(2). The court did not err in placing the burden on Mother to show that relocation was in the children’s best interests.

Benefits to children - The benefits to the children of Mother's proposed move are not exclusive to that area and do not outweigh the detrimental effect on Father’s time and relationship with the children. Further, Mother did not meet her burden of establishing the integrity of her reasons for leaving the current home area. As far as Father’s motives for opposing relocation, the parties do not dispute that he sought only to preserve his relationship with the children. He also sought to preserve the children’s relationship with his and Mother’s extended families. The record bears this out

Mother as primary caretaker – Mother viewed her primary caregiver role in a vacuum. As Mother acknowledged, she has had received considerable help from Father and from her stepmother, and readily conceded at trial that Father was a fit and caring parent, and capable of being primary custodian. Mother admitted that the children had a strong bond with Father and their families in Erie. Further, it is clear that Father has been a consistent and stable parental figure in the girls’ lives.  Substantial testimony showed it was possible for them to remain in the Erie area and spare the children emotional turmoil, and, if this were the case, Mother would remain primary custodian..

RFRA - 1st Amendment - free exercise - for-profit corporation

Conestoga Wood Specialties Corp. v. Secy. of HHS – 3d Cir. – July 26, 2013

http://www2.ca3.uscourts.gov/opinarch/131144p.pdf

Appellants Conestoga Wood Specialties Corporation , Norman Hahn, Elizabeth Hahn, Norman Lemar Hahn, Anthony Hahn, and Kevin Hahn appeal from an order of the District Court denying their motion for a preliminary injunction.

In their Complaint, Appellants allege that regulations promulgated by the Department of Health and Human Services, which require group health plans and health insurance issuers to provide coverage for contraceptives, violate the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb,  and the Free Exercise Clause of the First Amendment of the United States Constitution.

The District Court denied a preliminary injunction, concluding that Appellants were unlikely to succeed on the merits of their claims.  Appellants then filed an expedited motion for a stay pending appeal with this Court, which was denied.  Now, we consider the fully briefed appeal from the District Court‘s denial of a preliminary injunction.

Before we can even reach the merits of the First Amendment and RFRA claims, we must consider a threshold issue: whether a for-profit, secular corporation is able to 1 The Complaint also alleges that the regulations violate the Establishment Clause, the Free Speech Clause, the Due Process Clause, and the Administrative Procedure Act.

While the District Court‘s opinion addressed some of these additional claims, Appellants have limited their appeal to whether the regulations violate the RFRA and the Free Exercise Clause. engage in religious exercise under the Free Exercise Clause of the First Amendment and the RFRA.

As we conclude that forprofit, secular corporations cannot engage in religious exercise, we will affirm the order of the District Court.

 

immigration - City of Hazleton case - MD Pa. affirmed by 3d Cir.on remand from US SCt

Lozano et al. v.City of Hazleton – 3d Cir. – July 2013

http://www2.ca3.uscourts.gov/opinarch/073531p.pdf

OPINION OF THE COURT

__________
McKEE, Chief Judge.

This case is before us on remand from the United States Supreme Court. The City of Hazleton previously appealed the District Court‟s judgment permanently enjoining enforcement of two Hazleton ordinances that attempt to  prohibit employment of unauthorized aliens and preclude them from renting housing within the City.

 In a precedential Opinion and Judgment filed on September 9, 2010, we upheld the permanent injunction. Thereafter, the Supreme Court granted Hazleton‟s petition for a writ of certiorari and remanded this case so that we could reconsider our analysis in light of Chamber of Commerce v. Whiting, 563 U.S. __, 131 S. Ct. 1968 (2011). See City of Hazleton v. Lozano, 563 U.S. __, 131 S. Ct. 2958 (2011).

Subsequently, the Court also decided Arizona v. United States, 567 U.S. __, 132 S. Ct. 2492 (2012). Both Whiting and Arizona address the extent to which federal immigration law pre-empts various state laws pertaining to the treatment of unauthorized aliens. On remand, we asked for supplemental briefing on whether either of those decisions alter our original analysis upholding the District Court‟s injunction.

Having thoroughly considered the additional submissions of the parties and the Court‟s decisions in Whiting and Arizona, we again conclude that both the employment and housing provisions of the Hazleton ordinances are pre-empted by federal immigration law. Accordingly, we will again conclude that both the employment and housing provisions of the Hazleton ordinances are pre-empted by federal immigration law. Accordingly, we will again affirm the District Court‟s order enjoining enforcement of these provisions.

"Purely charitable organization" - affordable housing and counseling - evidence about other properties - institution as a whole

Alliance for Building Communities v. County of Lehigh Board of Assessment Appeals – Cmwlth. Court – July 22, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/1150CD12_7-22-13.pdf?cb=1

Alliance for Building Communities, Inc. (Taxpayer) appeals the order of the Court of Common Pleas of Lehigh County denying Taxpayer tax exempt status as an “institution of purely public charity” under Article VIII, Section 2(a)(v) of the Pennsylvania Constitution. The trial court affirmed the determination of the Lehigh County Board of Assessment Appeals that Taxpayer failed to establish that it qualified for an exemption as a purely public charity.

Taxpayer argues that the trial court erred by focusing only on Taxpayer’s operation of 20 rental properties it owns in Allentown rather than the charitable nature of Taxpayer’s entire organization. We agree and, therefore, vacate and remand.

______________________________

Taxpayer is a Pennsylvania non-profit corporation that is tax exempt under Section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. §501(c)(3); Taxpayer is also exempt from Pennsylvania sales and use tax. Its charitable mission is to provide affordable housing and counseling services to low-income persons. To that end, Taxpayer manages approximately 420 individual rental units, of which it owns 90 units. At issue in this case are 36 rental units on 20 real properties located in the City of Allentown. In July 2010, Taxpayer filed applications for real estate tax exemption for these 20 properties, and the Lehigh County Board of Assessment Appeals denied the applications. Taxpayer appealed to the trial court, which consolidated the 20 tax appeals.

Of the 20 properties at issue, 16 are leased to low-income tenants pursuant to a contract between Taxpayer and HUD under its Section 8 rental subsidy program. Those 16 properties contain 25 rental units. The other four properties, comprised of 11 rental units, are leased to mostly low or moderate income tenants at rents that are below market rates for the area.

In Hospital Utilization Project, 507 Pa. 1, 487 A.2d 1306, the Pennsylvania Supreme Court established a five-part test for determining whether an entity qualifies as a “purely public charity” under the Pennsylvania Constitution. The so-called HUP test provides:

[A]n entity qualifies as a purely public charity if it possesses the following characteristics.

(a) Advances a charitable purpose;
(b) Donates or renders gratuitously a substantial portion of its services;
(c) Benefits a substantial and indefinite class of persons who are legitimate subjects of charity;
(d) Relieves the government of some of its burden; and
(e) Operates entirely free from private profit motive.

Here, in applying the HUP test, the trial court committed the same error as the trial court in Alliance Home of Carlisle, PA v. Board of Assessment Appeals, 591 Pa. 436, 919 A.2d 206 (2007).  The trial court sustained the School District’s objection to the testimony of Taxpayer’s CEO about the other properties Taxpayer operates. This prevented Taxpayer from offering the necessary evidence on the institution as a whole. Because the trial court limited the testimony to the 20 Allentown properties, and did not make findings of fact or conclusions of law as to the entire institution, this Court cannot perform meaningful review. Couriers-Susquehanna, Inc. v. County of Dauphin, 645 A.2d 290, 294 (Pa. Cmwlth. 1994) (noting that trial court’s lack of critical finding of fact precluded this Court’s meaningful review).

For this reason, we vacate and remand this matter to the trial court to conduct further proceedings necessary to determine Taxpayer’s tax exempt status at the institutional level and then, if necessary, for a review of the 20 properties.

Contracts - 3d party beneficiary

McGaffic v. City of New Castle – Cmwlth. Court – July 22, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/396CD12_7-22-13.pdf?cb=1

Third-Party Beneficiary Law in Pennsylvania

The general rule is that a contract must express an intention to confer standing on a third-party beneficiary. Scarpitti v. Weborg, 530 Pa. 366, 370, 609 A.2d 147, 149 (1992). In Marsteller Community Water Authority v. P.J. Lehman Engineers, 605 A.2d 413 (Pa. Super. 1992), for example, it was held that a contract between a redevelopment authority and an engineering firm to upgrade a water system owned by a water authority expressed an intention to make the water authority a third-party beneficiary of the contract.9

9 What constitutes an “express intention” varies. In Johnson v. Pennsylvania National Insurance Companies, 527 Pa. 504, 594 A.2d 296 (1991), our Supreme Court held that a taxicab passenger was an intended third-party beneficiary of the taxicab owner’s insurance policy and, thus, bound by the policy’s requirement to arbitrate a claim for uninsured motorist benefits. Id. at 508, 594 A.2d at 298. The taxicab passenger was not named in the policy nor a party to the contract. In Keefer v. Lombardi, 376 Pa. 367, 102 A.2d 695 (1954), our Supreme Court found unnamed citizens and property owners to be third-party beneficiaries of a contract between a municipality and a contractor by which the contractor assumed liability for any damages caused by the construction. Id. at 369-70, 102 A.2d at 696. The Supreme Court found that “the drafters of the contract … include[d] as beneficiaries the inhabitants of the city for which they acted.” Id. at 372, 102 A.2d at 698. An express intention to create third-party beneficiaries does not require, even in the context of a government contract, that the beneficiaries be specifically named.

In Guy v. Liederbach, 501 Pa. 47, 59-60, 459 A.2d 744, 751 (1983), our Supreme Court adopted Section 302 of the Restatement (Second) of Contracts (1979), which allows a third-party to enforce a contractual promise even though the contract does not explicitly express that intention. Section 302 states:

Intended and Incidental Beneficiaries

(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either

(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or

(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary. 10

RESTATEMENT (SECOND) OF CONTRACTS §302 (1979) (emphasis added).

Our Supreme Court has explained that under Section 302 a party becomes a third party beneficiary only where ... the circumstances are so compelling that recognition of the beneficiary’s right is appropriate to effectuate the intention of the parties, and the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance....  Scarpitti, 530 Pa. at 372-73, 609 A.2d at 150-51 (emphasis added) (citations omitted). Stated otherwise, the “compelling circumstances,” or first prong, “sets forth a standing requirement,” and the second prong defines the type of claim to be presented by a third-party beneficiary. Id. at 371, 609 A.2d at 150. Notably, the named promisee’s inability or lack of incentive to enforce a contractual promise will support the third-party’s standing to enforce the promise. Id.

In sum, whether a contract contemplates enforcement by third-parties is a matter of contract construction. Parties may explicitly state that a contract provision is intended to create third-party beneficiary rights and identify, by name, the holder of those rights. Parties may explicitly state that a contract is not intended to create third-party beneficiary rights or identify the specific persons who do not hold these rights, as noted in Section 302(1) of the Restatement (Second) of Contracts. Most contracts are not explicit, and in that case the principles set forth in Section 302 are employed to ascertain the intention of the parties.