Order http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20%2010390159553023916.pdf?cb=1
Friday, March 08, 2019
PFA - amendments to forms - Pa RCP 1905
Amendment to PFA forms, Pa. RCP
1905
Order
http://www.pacourts.us/assets/opinions/Supreme/out/Order%20%2010390298753094919.pdf?cb=1
– effective 4-10-19
Monday, February 25, 2019
debt collection - "debt collector" includes entity that hires another to do the collecting
Barbato
v. Greystone Alliance LLC – 3d Cir. – February 22, 2019
The
Fair Debt Collection Practices Act protects consumers from abusive, deceptive,
or otherwise unfair debt collection practices. 15 U.S.C. § 1692(a). It applies to “debt collectors,” defined
alternatively as those engaged “in any business the principal purpose of which
is the collection of any debts” and those “who regularly collect[]” debts “owed
or due another.” Id. § 1692a(6).
Held: The term “debt collector” includes an entity
that acquires a debt for the “purpose of . . . collection” but outsources the
actual collection activity qualifies as a “debt collector.” An entity that otherwise meets the “principal
purpose” definition cannot avoid the dictates of the FDCPA merely by hiring a
third party to do its collecting.
Friday, February 22, 2019
UC - late appeal - admission to medical facility
Jenkins v. UCBR – Cmwlth. Court –
October 30, 2018 – ordered to be reported 2-15-19
Held:
Claimant’s absence from his mailing address during the appeal period was
attributable to non-negligent conduct, i.e. his admission to an inpatient drug
treatment facility for a one-month period.
His late appeal was allowed and
the case remanded for a hearing on the merits, i.e., whether his suspension for
willful misconduct (excessive absenteeism and tardiness) was willful
misconduct. The claimant, who was not
computer literate, tried to contact the UCSC by phone while he was in
treatment, but got a busy signal every time.
The referee and Board credited the claimant’s testimony in that regard.
Nunc pro tunc appeals
An
appeal nunc pro tunc is permitted when the appeal delay results from
extraordinary circumstances involving fraud or some breakdown in the
administrative process. McClean v. UCBR, 908 A.2d 956, 959 (Pa. Cmwlth. 2006).
In Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979), this standard was relaxed
somewhat. In that case, the appellant’s attorney had his secretary prepare
appeal papers for the appellant six days prior to the appeal deadline. The
secretary was responsible for filing the appeal and ensuring that all
secretarial work for the office was performed. The secretary fell ill and was
out of the office for a week, during which time the appeal deadline passed. She
filed the appeal within three days of her return to work. Our Supreme Court
allowed the appeal to proceed nunc pro tunc because the delay was caused by the
non-negligent act of a third party and was promptly corrected.
Non-negligent
conduct of claimant or counsel
More
recently, in Cook v. UCBR, 671 A.2d 1130 (Pa. 1996), our Supreme Court extended
the Bass principles to allow a nunc pro tunc appeal where the non-negligent
conduct was that of the appellant himself. . . . [In Cook, our Supreme Court] refined
the Bass standard as follows: We believe a better statement of the rule in Bass
is that where an appeal is not timely because of non-negligent circumstances,
either as they relate to appellant or his counsel, and the appeal is filed
within a short time after the appellant or his counsel learns of and has an
opportunity to address the untimeliness, and the time period which elapses is
of very short duration, and appellee is not prejudiced by the delay, the court
may allow an appeal nunc pro tunc. Id. at 1131.
This
case did not involve voluntary travel or voluntary absence from the home
The
Court rejected the Board’s attempt to analogize cases where the claimant had
been absent from his mailing address for voluntary travel, e.g., See, e.g.,
Karmiev v. UCBR (Pa. Cmwlth., No. 1060 C.D. 2016, filed March 24, 2017); Plut
v. UCBR (Pa. Cmwlth., No. 2283 C.D. 2007, filed October 14, 2008); Hanin v. UCBR,
377 A.2d 1062 (Pa. Cmwlth. 1977). The
Court agreed with Claimant that his case is in line with the paradigm
established in Cook, 671 A.2d 1130, where a nunc pro tunc appeal was allowed
because of the appellant’s hospitalization for a serious medical condition. See
also B.B. v. Department of Public Welfare, 118 A.3d 482 (Pa. Cmwlth. 2015). The
Referee credited Claimant’s testimony in its entirety, including that he was
admitted to the Livengrin Inpatient Residential Program during the appeal
period and believed, based on prior experience, that there would be no problem
with his unemployment application.
No
duty to have mail forwarded in every case
The
Board asserts that every claimant has a duty to have his mail forwarded when he
is absent for any reason and for any duration from the mailing address given to
the Department. We reject the Board’s assertion. Forwarding mail is a step
undertaken when one leaves home for an extended period of time, not for a
vacation or hospitalization.
Breakdown
in administrative process – inability to contact UCSC by phone
Claimant’s
case is distinguishable from the cases cited by the Board for an additional
reason. Claimant testified credibly that he attempted to contact the UC Service
Center by phone but always got a busy signal.8 Claimant points out that his
appeal period coincided with the height of a funding crisis at the Department
of Labor and Industry that resulted in substantial staff reductions beginning
in December 2016. Claimant’s credited testimony that he tried unsuccessfully to
contact the UC Service Center by phone weighs in favor of granting nunc pro
tunc relief since it is evidence that Claimant acted reasonably to learn the
status of his application but was unsuccessful due to no fault of his own
UC - late appeal - misleading admin. actions
Begovic v. UCBR – Cmwlth. Court –
February 19, 2019 – unreported memorandum decision**
Contact by UC authorities subsequent
to initial adverse determination were sufficiently misleading as to constitute
an administrative breakdown and, thus, allow a late appeal, nunc pro tunc.
From the opinion –
If
an appeal is not filed within 15 days of mailing, the referee and the Board
lack jurisdiction to consider the matter, and the initial eligibility
determination becomes final. Roman-Hutchinson v. UCBR, 972 A.2d 1286, 1288 n.1
(Pa. Cmwlth. 2009); United States Postal Service v. UCBR, 620 A.2d 572, 573
(Pa. Cmwlth. 1993). An appeal filed even 1 day after the 15-day appeal period
is untimely and must be dismissed. Hessou v. UCBR, 942 A.2d 194, 197-98 (Pa.
Cmwlth. 2008).
There
is an exception, though, and an appeal nunc pro tunc may be allowed “where a
delay in filing the appeal is caused by extraordinary circumstances involving
fraud or some breakdown in the administrative process, or non-negligent
circumstances related to an appellant or [her] counsel or a third party.” Russo
v. UCBR, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). In cases where a claimant is
“unintentionally misled by an official who is authorized to act in the
premises, the time [for appeal] may also be extended when it is possible to
relieve an innocent party of injury consequent on such misleading act.” Flynn
v. UCBR, 159 A.2d 579 (Pa. Super. 1960). See also Stana v. UCBR, 791 A.2d 1269,
1271 (Pa. Cmwlth. 2002). Further, “[W]here an administrative body acts
negligently, improperly or in a misleading way, an appeal nunc pro tunc may be
warranted.” Union Electric Corporation v. Board of Property Assessment, 746
A.2d 581, 584 (Pa. 2000).
In
line with Martyna v. UCBR, 692 A.2d
594 (Pa. Cmwlth. 1997), and Waters-Bey v.
UCBR, (Pa. Cmwlth., No. 777 C.D.
2016, filed June 12, 2017) [citing the court’s
Internal Operating Procedures, allowing citation un an unreported opinion for
its persuasive value. 210 Pa. Code §69.414(a).], the Court held that the
Department’s letter, which erroneously indicated that another letter was
forthcoming, coupled with the phone call from the Department representative,
which occurred during Claimant’s appeal period and in the course of the wage
investigation she sought, but after the Department sent her the Revised
Financial Determination, were sufficiently misleading so as to constitute a
breakdown in the administrative process. The Department was apparently confused
about its own procedures as reflected by 15 the timing and the indication that
it would issue a new revised financial determination was false.
As
we said in Martyna, “If [the
Department] was mistaken, [Claimant] should not bear the consequences of that
administrative confusion.” Martyna, 692 A.2d at 598 [emphasis added]. Thus,
we remand for a decision on the merits of Claimant’s appeal from the Revised
Financial Determination regarding her wages earned from OPI. Accordingly, we
reverse the Board’s April 9, 2018 order and remand for a decision on the merits
of the issues Claimant raised on appeal.
**An unreported Commonwealth Court case may not be
cited binding precedent but can be cited for its persuasive value. See 210 Pa.
Code § 69.414(b) and Pa. R.A.P.
3716
Monday, January 28, 2019
parties - unknown/John Doe defendants - rules of civil procedure
Pa.
R.C.P. 1007, 1018, 1033, 2005
- http://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20%2010385516448046778.pdf?cb=1
Effective
date – April 1, 2019
- http://www.pacourts.us/assets/opinions/Supreme/out/Order%20%2010385516448046630.pdf?cb=1
Explanatory
comment – http://www.pacourts.us/assets/opinions/Supreme/out/Report%20%2010385516448046733.pdf?cb=1
The
Supreme Court of Pennsylvania has adopted new Rule 2005 governing the naming of
unknown, or John/Jane Doe, defendants in a complaint. Currently, the Rules of
Civil Procedure are silent as to the use of Doe defendants in litigation;
however, case law shows that the naming of Doe defendants has occurred. Rule
2005 is intended to fill this gap by standardizing the procedure in which to
assert a cause of action against a Doe defendant.
Tuesday, January 08, 2019
UC - appeal - capricious disregard of competent, relevant evidence
Jamie One, LLC v. UCBR – Cmwlth. Court
– January 4, 2019 – unreported** memorandum opinion
The court rejected the employer’s
appeal and upheld the grant of benefits.
In the course of its opinion, not otherwise of special value, the court
discussed the argument that the Board capriciously disregarded competent,
relevant evidence in reaching its decision.
The court discussed this as follows:
Disturbing
an agency’s adjudication for a capricious disregard of evidence is appropriate
only where the fact finder has refused to resolve conflicts in the evidence,
has not made essential credibility determinations or has completely ignored evidence
without comment. Wise v. UCBR, 111 A.3d 1256, 1263 (Pa. Cmwlth. 2015). An
appellate court conducting a review for capricious disregard of material,
competent evidence may not reweigh the evidence or make credibility
determinations. Id
Here
is the relevant discussion from
Wise v. UCBR – 111 A. 3d 1256, 1262-3
(Pa. Cmwlth. 2015)
A
capricious disregard of evidence occurs where the fact finder willfully and
deliberately disregards competent and relevant evidence that one of ordinary
intelligence could not possibly have avoided in reaching a result. Spencer v. City of Reading Charter Board, 97 A.3d 834, 842 (Pa.Cmwlth.2014). The
Pennsylvania Supreme Court has explained that review for capricious disregard
of competent evidence is an "appropriate component of appellate
consideration in every case in which such question is properly before the
court." Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal
Board (Marlowe), 571 Pa. 189, 812
A.2d 478, 487 (2002). In Wintermyer, the Supreme
Court noted that where there is substantial evidence to support the agency's
factual findings and those findings support the legal conclusions, "it
should remain a rare instance in which an appellate court would disturb an
adjudication based upon capricious disregard." Id. at 487
n. 14. The standard 1263*1263 announced in Wintermyer applies
whether one or both parties present evidence and, thus, overruled this Court's
earlier-announced paradigm that appellate review for capricious disregard of
evidence was limited to the circumstance where the burdened party was the only
party to present evidence and did not prevail. See, e.g., Lautek Corporation v. Unemployment Compensation Board of
Review, 138 Pa. Cmwlth. 547, 588
A.2d 1007, 1010 (1991).
Disturbing an agency's adjudication
for a capricious disregard of evidence is appropriate only where the
fact-finder has refused to resolve conflicts in the evidence, has not made
essential credibility determinations or has completely ignored overwhelming
evidence without comment. Hinkle v. City of Philadelphia,881 A.2d 22, 27 (Pa.Cmwlth.2005). In Hinkle, this
Court, citing Wintermyer,explained that:
"Capricious
disregard" then is just another name for the agency abusing its discretion
and is an error of law when the agency fails to give an indication that it has
examined countervailing substantive testimony that had to be considered at
arriving at its decision.
The capricious disregard
standard then is nothing more than a shorthand way of referring to an amalgam
of existing overlapping legal and constitutional standards mentioned above that
safeguard against arbitrariness by state and local administrative agencies by
requiring a meaningful explanation of why the losing party's overwhelming
evidence was not accepted.
Id. (footnote omitted). An appellate court conducting a review
for capricious disregard of material, competent evidence may not reweigh the
evidence or make credibility determinations. Spencer, 97
A.3d at 842 (Pa.Cmwlth.2014) (citing Wintermyer, 812
A.2d at 487-88).
=====================
**An
unreported Commonwealth Court case may not be cited binding precedent but can
be cited for its persuasive value. See 210 Pa.
Code § 69.414(b) and Pa. R.A.P.
3716
UC - willful misconduct - claimant did not violate employer rule on "weapons"
Cambria County Transit Authority v.
UCBR – Cmwlth. Court – January 8, 2019 – reported opinion
Held: Claimant did not violate
employer rule concerning “weapons” by picking up a knife in the employee lounge
and putting it right back down. Board
found that claimant did not threaten anyone and that the knife had been in
lounge for years and had been used for preparing and cutting food, and the
like. Employer’s HR manager admitted
that, in the absence of a threat, possession of a metal knife in the employee’s
lounge was not a violation of Employer’s policies.
Monday, November 26, 2018
employment - employee information - employer duty to protect - damages
Dittman
v. UPMC – Pa. Supreme Court – November 21, 2018
Held:
[A]n employer has a legal duty to exercise reasonable care
to safeguard its employees’ sensitive personal information stored by the
employer on an internet-accessible computer system.
Under Pennsylvania’s economic loss doctrine, recovery for
purely pecuniary damages is permissible under a negligence theory provided that
the plaintiff can establish the defendant’s breach of a legal duty arising
under common law that is independent of any duty assumed pursuant to contract.
Monday, November 19, 2018
mootness
Clean Air Council v. County of
Allegheny – Cmwlth. Court – November 19, 2018 – unreported* memorandum opinion
This case is not of interest as far as
substance, but it has the following discussion of the doctrine of mootness.
The
mootness doctrine requires an actual case or controversy to exist at all
stages. It is a well-established principle of law that this Court will not
decide moot questions. The articulation of the mootness doctrine . . . was
acknowledged in . . . In re Gross, . . . 382 A.2d 116 ([Pa.] 1978) as follows:
The problems arise from events occurring after the lawsuit has gotten under
way-changes in the facts or in the law-which allegedly deprive the litigant of
the necessary stake in the outcome. The mootness doctrine requires that ‘an
actual controversy must be extant at all stages of review. . . .’ G. Gunther,
Constitutional Law 1578 (9th ed. 1975). [In re Gross], 382 A.2d at 119.
An
issue can become moot during the pendency of an appeal due to an intervening
change in the facts of the case or due to an intervening change in the
applicable law. In re Cain, . . . 590 A.2d 291, 292 ([Pa.] 1991). Dep’t of
Envtl. Prot. v. Cromwell Twp., Huntingdon Cty., 32 A.3d 639, 651 (Pa. 2011).
Further, [the Pennsylvania Supreme] Court has repeatedly recognized two
exceptions to the mootness doctrine: (1) for matters of great public importance
and (2) for matters capable of repetition, which are likely to elude review.
Moreover,
we have found this exception applicable where a case involves an issue that is
important to the public interest or where a party will suffer some detriment
without a court decision. Pilchesky v. Lackawanna Cty., 88 A.3d 954, 964-65
(Pa. 2014) (citation omitted).
Under
the mootness doctrine, ‘an actual case or controversy must be extant at all
stages of review, not merely at the time the complaint is filed.’ Pub.
Defender’s Office of Venango [Cty.] v. Venango [Cty.] Court of Common Pleas, .
. . 893 A.2d 1275, 1279 ([Pa.] 2006) [(quoting Pap’s A.M. v. City of Erie, . .
. 812 A.2d 591, 599-600 ([Pa.] 2002))]. The existence of a case or controversy
requires ‘a real and not a hypothetical legal controversy and one that affects
another in a concrete manner so as to provide a factual predicate for reasoned
adjudication. . . .’ City of Phila[.] v. [Se. Pa. Transp. Auth.], 937 A.2d
1176, 1179 (Pa. Cmwlth. 2007). Harris v. Rendell, 982 A.2d 1030, 1035 (Pa.
Cmwlth. 2009), aff’d, 992 A.2d 121 (Pa. 2010). Further, [i]t is well settled
that the courts ‘do not render decisions in the abstract or offer purely
advisory opinions.’ Pittsburgh Palisades Park, LLC v. Commonwealth, . . . 888
A.2d 655, 659 ([Pa.] 2005). Judicial intervention ‘is appropriate only where
the underlying controversy is real and concrete, rather than abstract.’ City of
Phila[.] v. Commonwealth, . . . 838 A.2d 566, 577 ([Pa.] 2003). Harris, 982
A.2d at 1035. “The key inquiry in determining whether a case is moot is whether
the court or agency will be able to grant effective relief and whether the
litigant has been deprived of the necessary stake in the outcome of the
litigation.” Consol Pa. Coal Co., LLC v. Dep’t of Envtl. Prot., 129 A.3d 28, 39
(Pa. Cmwlth. 2015)
======================
*An
unreported Commonwealth Court case may not be cited binding precedent but can
be cited for its persuasive value. See 210 Pa.
Code § 69.414(b)
Thursday, November 01, 2018
UC - appeal - waiver of issue - UCBR argument held to be "sophistry"
Patnesky v. UCBR – Cmwlth. Court (2-1)
– unreported* memorandum decision
The Court held that the employer
failed to prove willful misconduct of a state driver’s license examiner who
issued a replacement ID card for the “incapacitated” child of a co-worker. The Court said that the claimant’s conduct
did not violate a work rule, which it found to be ambiguous, thus resulting, at
worst, in an inadvertest or negligent violation of the rule rather than the
required deliberate violation. It is well established that noncompliance
with a work rule in itself does not amount to a “deliberate violation.”
Oyetayo, 110 A.3d at 1121; Chester Community Charter School v. UCBR, 138 A.3d
50, 54 (Pa. Cmwlth. 2016) (“[a]n inadvertent or negligent violation of an
employer’s rule may not constitute willful misconduct.”).
UCBR
argument that claimant had waived an issue was held to be “sophistry.”
The more
significant part of the opinion rejected
the Board’s position that claimant had waived an argument.
At the outset, we address the Board’s
waiver argument, which it makes in virtually every brief it files with this
Court. The Board asserts that because the statement of questions in Claimant’s
brief raises only the issue of whether Claimant committed disqualifying willful
misconduct under Section 402(e) of the Law, Claimant cannot challenge the
Referee’s “findings of fact,” which in this case include a statement that Claimant
violated Employer’s confidentiality policy because [the incapacitated child] “was
not present during the transaction.” . . . .Finding of Fact No. 6.
By couching the legal conclusion that
Claimant violated the policy as a “finding of fact,” the Referee attempted to
place the proverbial rabbit in the hat. The Board unquestioningly adopted this
“finding of fact” and now asserts that the ultimate legal issue in this case is
beyond appellate review. This is sophistry.
Whether Claimant’s actions constituted
disqualifying willful misconduct is a question of law fully reviewable by this
Court. Oyetayo v. UCBR, 110 A.3d 1117, 1122 (Pa. Cmwlth. 2015). In deciding
that legal issue, this Court must determine whether Claimant’s actions. violated Employer’s policy as was concluded
by the Board. We reject the Board’s waiver argument and proceed to the merits
of Claimant’s appeal.
============================
*An unreported
Commonwealth Court case may not be cited binding precedent but can be cited for
its persuasive value. See 210 Pa.
Code § 69.414(b) and Pa. R.A.P.
3716
Friday, October 19, 2018
UC - fair hearing - unrepresented party - duty of referee to assist - "full and fair hearing"
Scott v. UCBR – Cmwlth. Court –
October 19, 2018 – unreported* memorandum opinion
Held:
Case remanded because claimant was not afforded a “full and fair
hearing.” The referee “precluded claimant from introducing
potentially relevant evidence that would support his claim that he was
discharged” rather than had quit his job.
The referee “could have taken a few minutes to review the additional
documents [that] Claimant had submitted to the Service Center, given Claimant
an opportunity to explain their relevance, and compared those documents to the
claims [that] Claimatn sought to introduce, before precluding the evidence.”
Admission
of evidence
In
UC proceedings, the Referee has “wide latitude” regarding the admission of
evidence. Creason v. UCBR, 554 A.2d 177, 179 (Pa. Cmwlth. 1989). However, the
Referee “is not free to disregard rules of evidence and if evidence is not
relevant[,] the [R]eferee may exclude it.” Id. Despite this broad discretion, the
Referee “may not improperly refuse to accept relevant competent and material
evidence.” Healey v. UCBR, 387 A.2d 1025, 1027 (Pa. Cmwlth. 1978).
Duty
to assist pro se claimant
The
[R]eferee has a responsibility . . . to assist a pro se claimant at a hearing
so that the facts of the case necessary for a decision may be adequately
developed to “insure that compensation will not be paid in cases in which the
claimant is not eligible and that compensation will be paid if the facts,
thoroughly developed, entitled the claimant to benefits.” The [R]eferee, of
course, need not advise a party on evidentiary questions or on specific points
of law but must act reasonably in assisting in the development of the necessary
facts, and any failure to develop an adequate record must be prejudicial to the
claimant and not mere harmless error or else a reversal will not be found.
Bennett v. UCBR, 445 A.2d 258, 259-60 (Pa. Cmwlth. 1982); see also 34 Pa. Code
§ 101.21(a). While the Referee is not
obligated to advocate on behalf of a pro se claimant, see Stugart v. UCBR, 85
A.3d 606, 609 (Pa. Cmwlth. 2014), the
Referee is required to reasonably assist a pro se claimant in developing the
necessary facts.
In
this case, a key issue before the Referee was whether Claimant was discharged
from his employment or whether he voluntarily quit. Rather
than assist Claimant, however, the Referee precluded Claimant from introducing
potentially relevant evidence that would support his claim that he was
discharged. Because the Referee
excluded both the missing Service Center documents and the emails, we do not
know the extent of any overlap between the documents and the emails or whether
any of that evidence was relevant to the issues before the Referee. The Referee
could have taken a few minutes to review the additional documents Claimant had
submitted to the Service Center, given Claimant an opportunity to explain their
relevance, and compared those documents to the emails Claimant sought to
introduce before precluding the evidence. Because the Referee 9 failed to take
these steps, we conclude that she did not “act reasonably in assisting in the
development of the necessary facts.” Hackler v. UCBR, 24 A.3d 1112, 1115 (Pa.
Cmwlth. 2011).
================
*An unreported
Commonwealth Court case may not be cited binding precedent but can be cited for
its persuasive value. See 210 Pa.
Code § 69.414(b) and Pa. R.A.P.
3716
Sunday, October 07, 2018
courts - jurisdiction - foreign corporation - registration in Pa. - consent
Murray v. American Lafrance, LLC – Pa.
Super. – reported, published – September 25, 2018
Held:
A corporation consents to jurisdiction of Pennsylvania courts when it
registers as a foreign corporation under 42 Pa. C.S. 5301 (a) (2) (i-iii).
From the opinion
We
observe that whether a foreign corporation consents to general personal
jurisdiction in Pennsylvania by registering to do business in the Commonwealth
is a matter of first impression in this Court. Our review of the caselaw has
revealed that neither this Court nor our Supreme Court has had the occasion to
determine whether, post-Daimler, registering to do business as a foreign
corporation in the Commonwealth constitutes consent for the purposes of
exercising general personal jurisdiction. However, Bors v. Johnson & Johnson, 208 F. Supp. 3d 648
(E.D. Pa. 2016), provides a persuasive, well-reasoned analysis and we cite it
with approval.
In
Bors, supra, the district court considered whether Bane v. Netlink, Inc., 925
F.2d 637 (3d Cir. 1991),7 remained good law or whether Daimler eliminated
consent by registration under section 5301 as a basis for jurisdiction. See
Bors, supra at 653-54. The Bors court reasoned that “Pennsylvania’s statute
specifically advises the registrant of the jurisdictional effect of registering
to do business[,]” and concluded that “[c]onsent remains a valid form of
establishing personal jurisdiction under the Pennsylvania registration statute
after Daimler.” Id. at 655; see also Hegna v. Smitty’s Supply, Inc., 2017 WL
2563231, at *4 (E.D. Pa. filed June 13, 2017) (“conclud[ing] that, by registering
to do business under § 5301, Smitty’s consented to general personal
jurisdiction in Pennsylvania and that its consent is still valid under Goodyear
[Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011),] and Daimler.”).
In
this case, Appellee registered as a foreign corporation to do business in
Pennsylvania. (See Preliminary Objections, Exhibit B, at 1). In doing so, we
hold that it consented to general personal jurisdiction in Pennsylvania. See
Sulkava, supra at 889; Bors, supra at 655; see also Bane, supra at 640.
Therefore, based on the relevant caselaw, and the language of section 5301(a),
we conclude that the trial court erred when it dismissed these actions for lack
of personal jurisdiction.8 Accordingly, we vacate the orders sustaining the preliminary
objections, and remand these cases to the trial court.
Tuesday, October 02, 2018
debt collection - FDCPA -false, misleading - statement about IRS
Schultz v. Midland Credit Management –
3d Cir.- September 24, 2018
A
statement in a debt collection letter to the effect that forgiveness of the
debt may be reported to the Internal Revenue Service constitutes a violation of
the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §1692 et. seq. ,
particularly the threat to take any action that cannot legally be taken or that
is not intended to be taken. . . . The use of any false representation or
deceptive means to collect or attempt to collect any debt or to obtain
information concerning a consumer. §§ 1692e(5), (10).
Whether
a collection letter is “false, deceptive, or misleading” under § 1692e is
determined from the perspective of the “least sophisticated debtor.” Brown, 464
F.3d at 453.
Here,
the reporting requirement under the Internal Revenue Code is wholly
inapplicable to the Schultzes’ debts because none of them totaled $600 or more,
and IRS regulations clearly state that only discharges of debt of $600 or more
“must” be included on a Form 1099-C and filed with the IRS. See 26 C.F.R. §
1.6050P-1(a). By including the reporting language on
collection letters addressing debts of less than $600, we believe that the
least sophisticated debtor might be persuaded into thinking that the discharge
of any portion of their debt, regardless of amount discharged, may be
reportable.
Based
on the foregoing, we will reverse the May 8, 2017, Order of the District Court
as we find that the Schultzes have pled sufficient factual allegations that
state a plausible claim upon which a court may grant relief under the FDCPA. We
will therefore remand for further proceedings consistent with this opinion.
==============
Wednesday, September 19, 2018
LT - security deposit - tenant's new address - list/proof of damages
Nitardy v. Chabot – Pa. Superior Court
– published opinion – Septembwr 14, 2018
majority
(2-1)
Court affirmed in part, vacated in
part, and remanded decision of lower court in favor of tenant who sued concerning
security deposit.
Oral
modification of written lease
“The
law is well settled that parties may modify a written lease agreement by a
subsequent oral agreement, and this modification may be shown by words or
conduct. Bonczek v. Pascoe Equip. Co., 450 A.2d 75, 77 (Pa.Super. 1982). For an
oral modification to be valid, it must be based upon valid consideration and
proved by evidence that is “clear, precise, and convincing.” Id. (citation
omitted).”
Failure to provide
written list of any damages - specificity
The
Landlord and Tenant Act specifically provides that a landlord shall “within
thirty days of termination of a lease. . . provide a tenant with a written list
of any damages to the leasehold premises for which the landlord claims the
tenant is liable.” 68 P.S. § 250.512(a). . . .When the landlord delivers the
“written list of any damages,” the landlord shall return the security deposit
less “the actual amount of damages to the leasehold premises caused by the
tenant.” Id. . . . . If the landlord fails to pay the difference between the
security deposit and the “actual damages to the leasehold premises,” the
landlord shall be liable for double the amount of the security deposit less
actual damages to the leasehold premises. 68 P.S. § 250.512(c).
Since
the Act requires that the landlord return the security deposit less the “actual
damages” to the property, the “written list of any damages” must be specific
enough so that the landlord can value the “actual damages” and notify the
tenant of the basis for deducting amounts from the security deposit. In this
case, the trial court found the “written list of any damages” that Landlord
provided to Tenants was too vague to constitute an appropriate “written list of
any damages.” In particular, the trial court found that a “vague list, without
accompanying values as to each item, will not suffice.” . . . .We agree.
Tenant’s failure to timely
provide new address in writing not dispositive
Subsection
250.512(e) states that “[f]ailure of the tenant to provide the landlord with
his new address in writing upon termination of the lease or upon surrender and
acceptance of the leasehold premises shall relieve the landlord from any
liability under [section 250.512,]” which is the section relating to security
deposits discussed supra. 68 P.S. § 250.512(e).
The
trial court declined to apply this provision, stating that the parties remained
in continual email contact, the Tenants evantually provided Landlord with a
forwarding address, and Landlord had the mailing information needed to comply
with the security deposit provisions of the Act in ample time to do so. . . . .
Further, the court stated, “the suggestion that [Landlord] did not return any
of [the Tenants’] security deposit because he did not have their forwarding
address is belied by the record in this case.” Id. We see no basis to disturb
the trial court’s ruling.
We
see no basis to disturb the trial court’s ruling. The record supports its
factual findings. Further, in the lone reported case by this Court construing
subsection 250.512(e), we rejected a landlord’s attempt to use subsection 250.512(e) as a shield when there was no
evidence in the record indicating that the failure to return the security
deposit was due to the landlord’s not knowing where to mail the deposit. Adamsky v. Picknick, 603 A.2d 1069, 1071
(Pa. Super. 1992) (“[W]e find the lack of notice argument is tenuous at best
since appellant’s reason for withholding the deposit was not because he did not
have appellees’ new address[;] rather, he withheld it because he maintained
there were damages for which he should be compensated.”). Therefore, we hold that the trial court
properly declined to apply subsection 250.512(e) in this case.
Landlord’s
counterclaim for damages – burden of proof
The
Act places on the landlord the burden of proof as to actual damages caused by a
tenant to the leasehold premises. 68 P.S. § 250.512(c). However, note that a landlord’s right,
pursuant to the Lease, to require a tenant to pay for damage to a property may
be separate and distinct from a landlord’s right to deduct amounts for damage
from the security deposit pursuant to 68 P.S. § 250.512(a). If a landlord fails
to meet the requirements of 68 P.S. §250.512(a), he still has a claim pursuant
to the Lease. He just cannot deduct the amounts from the security deposit and
must collect the amounts directly from the tenant.
Thursday, September 06, 2018
housing - disabled tenant - reasonable accommodation - Fair Housing Amendments Act
Vorchheimer
v. Philadelphia Owners Assn. – 3d Cir. – September 5, 2018
Held: Under the Fair Housing Amendment Act, 42
U.S.C. §3604(f)(2), (f)(2)(A), a disabled tenant has a right to a reasonable
housing accommodation that she needs to use and enjoy her home. But if her
landlord offers her an alternative that likewise satisfies that need, she has
no right to demand the particular accommodation that she wants.
Thursday, August 30, 2018
custody - standing - in loco parentis - stepfather in U.S. military - physical absence from home
M.L.S. v. T.H.-S – Superior Court –
Augusut 29, 2018 – reported opinion
Held:
Stepfather (SF) of 11 year-old child stands in loco parentis to child, even though SF is in active military
service and lives apart from the child for the majority of time, where:
-
SF listed child as a dependent and received benefits from SF’s military service
(15 years in the US Navy)
-
SF spoke with child on phone every other day while stationed in the U.S.
-
SF undertook many parental duties, as permitted by his military service, and
served in many respects in place of child’s deceased father
Physical absence from home due to
military services is “merely one factor” concerning in loco parentis.
SF both assumed parental status and
discharged parental duties.
Monday, August 27, 2018
labor - employee v. indpt. contractor - beauty salon
A Special Touch v. Dept. of Labor
& Industry – Cmwlth. Court – August 23, 2018
A
Special Touch, a beauty salon, petitions for review of an adjudication of the
Department of Labor and Industry (Department) that imposed an unemployment
compensation tax on it for five persons who worked at the salon in a variety of
positions.
In
its adjudication, the Department classified these five workers as employees,
but it classified five other workers who worked there in similar positions as
independent contractors.
Because
all ten workers were “customarily engaged in an independently established
trade, occupation, profession or business” under Section 4(l)(2)(B) of the
Unemployment Compensation Law (Law),2 we reverse the Department’s holding in
that respect.
consumer - debt collection - FDCPA - use of true name
Levins v. Health Care Recovery Group –
3d Cir. – August 22, 2018
Elaine and William Levins allege that
Healthcare Revenue Recovery Group LLC (“HRRG”) violated §§ 1692e(14), 1692d(6), and 1692e(10) of the
FDCPA by leaving telephone voice messages that did not use its true name, did
not meaningfully disclose its identity, and used false representations and
deceptive means to collect or attempt to collect a debt or obtain information
about a consumer.
In particular, the Levinses complain that
voicemail messages in which HRRG went by the name of “ARS” were insufficient to
identify it as HRRG or even as “ARS ACCOUNT RESOLUTION SERVICES,” which is an
alternative business name used by HRRG. HRRG moved to dismiss the complaint, as
amended, for failure to state a claim, and the District Court granted that
motion.
Held: the Levinses have
stated a plausible claim that HRRG violated § 1692e(14)’s “true name”
provision, but they have not stated plausible claims under §§ 1692d(6) or
1692e(10).
Wednesday, August 08, 2018
housing - sec. 8 - recertification - false information - intent
MaCool v. Berks County Housing
Authority – July 30, 2018 – unpublished* memorandum opinion
Held:
Where tenant “unequivocally...did not provide true and correct and
complete information on her recertification forms,” the Housing Authority had
the right and discretion to remove the
tenant from the sec. 8 program, regardless of the trial court’s finding that
the tenant did not intend to lie.
==============================
*An unreported
Commonwealth Court case may not be cited binding precedent but can be cited for
its persuasive value. See 210 Pa.
Code § 69.414(b) and Pa. R.A.P.
3716
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