admin. law - timely adjudication - mandatory v. directory - "purely judicial function" -

Kabiru v. Bureau of Professional and Occupational Affairs

Commonwealth Court – 11-21-23 – not reported**

 

Car salesperson appealed a decision of the BPOA, on the facts, and because the adjudication was issued past the 90-day deadline set out in the statute, 63 Pa.C.S. § 3105(d)(4), which provides that the “[Board] shall render a final adjudication or decision on any exceptions to the decision of a hearing examiner or any applications for review within 90 days of the filing of the exceptions or applications[.]”(emphasis added). 

 

The Court held that the “shall” language of the statute was not mandatory but merely directory, because the Board was exercising a “purely judicial function,” following the jurisprudence set out below.

 

From the opinion:

 

To be sure, “[i]t has long been part of the jurisprudence of this Commonwealth that the use of ‘shall’ in a statute is not always indicative of a mandatory directive; in some instances, it is to be interpreted as merely directory.” In re Canvass of Absentee & Mail-in Ballots of Nov. 3, 2020 Gen. Election, 241 A.3d 1058, 1071 (Pa. 2020). Indeed, in 1956, our Superior Court established: 

To hold that a provision is directory rather than mandatory, does not mean that it is optional—to be ignored at will. Both mandatory and directory provisions of the legislature are meant to be followed. It is only in the effect of non-compliance that a distinction arises. A provision is mandatory when failure to follow it renders the proceedings to which it relates illegal and void; it is directory when the failure to follow it does not invalidate the proceedings. 

Borough of Pleasant Hills v. Carroll, 125 A.2d 466, 469 (Pa. Super. 1956) (emphasis added). Nearly four decades later, this Court similarly held that “‘shall’ has generally been regarded as directory, unless time is of the essence or the statute indicates that the provision is mandatory.” Dep’t of Transp., Bureau of Driver Licensing v. Claypool, 618 A.2d 1231, 1232 (Pa. Cmwlth. 1992) (citing Commonwealth v. Kowell, 228 A.2d 50 (Pa. Super. 1967)). 

We have also recognized the General Assembly may not “fix a time in which the exercise of a purely judicial function must occur and, thus, when a statute appears to do so it will be construed as directory.” West Penn Power Co. v. Pa. Pub. Util. Comm’n, 521 A.2d 75, 78 (Pa. Cmwlth. 1987) (emphasis added); see JPay, Inc. v. Dep’t of Corr., 89 A.3d 756, 763 (Pa. Cmwlth. 2014) (“[The Commonwealth Court] is particularly reluctant to find a statutory provision mandatory where it requires that a Commonwealth agency issue an adjudication within a specified time frame[.]”). 

The language of Section 3105(d)(4) does not prima facie invalidate the Board’s authority in the event its final adjudication—a “purely judicial function”—exceeds the statute’s 90-day deadline. First, it is well settled that “where a statute fixes a time for an adjudicating body, the language of the statute will be construed as directory because the courts cannot punish any of the litigants for the actions of the adjudicator.” Pub. Serv. Water Co. v. Pa. Pub. Util. Comm’n, 645 A.2d 423, 430 (Pa. Cmwlth. 1994) (citing West Penn, 521 A.2d at 78). We correspondingly determined in Schulze v. Bureau of Professional and Occupational Affairs, 794 A.2d 984, 989 (Pa. Cmwlth. 2002), and Shapiro v. State Board of Accountancy, 856 A.2d 864, 872 (Pa. Cmwlth. 2004), that Section 3(d) of the Act of July 2, 1993, P.L. 345, formerly 63 P.S. § 2203(d), repealed by the Act of July 1, 2020, P.L. 575 (the predecessor to Section 3105(d)(1)), is a directory provision. “When the meaning of a word or phrase is clear when used in one section, it will be construed to mean the same thing in another section of the same statute.” Hous. Auth. of Cnty. of Chester v. Pa. State Civ. Serv. Comm’n, 730 A.2d 935, 946 (Pa. 1999) (citing Commonwealth v. Maloney, 73 A.2d 707, 712 (Pa. 1950)). Section 3105(d)(4) is in pari materia with Section 3105(d)(1); therefore, Section 3105(d)(4) is equally directory. See 1 Pa.C.S. § 1932. For these reasons, the Board’s delay did not prejudice Petitioner; in fact, she actually “benefited from the delay through continuous, unencumbered licensure.”

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 

 

 

 

 

 

PFA - no claim/issue preclusion where first PFA dismissed w/o prejudice - hearing required

Moyer v. Shaffer – Pa. Superior Court – 11-17-23 – reported, precedential

 

Held: Second PFA petition not precluded, where prior  PFA petition was dismissed w/o prejudice and w/o a hearing, even though second petition based on same facts as first.

 

Claim and issue preclusion (res judicata and collateral estoppel) only apply where the “controlling issues have been decided in a prior action, in which the parties had a full opportunity to assert their rights.” E.K. v. J.R.A., 237 
A.3d 509,521  (Pa.Super. 2020); Vignola v. Vignola 39 A.3d 390,  393 (Pa. Super. 2012).

 

Here, plaintiff/appellant first PFA petition “was not litigated on the merits.” Rather, the court dismissed the case without prejudice when plaintiff failed to appear at first hearing.

 

In addition, the lower erred court erred in dismissing the second petition without holding a hearing.  “The PFA Act states unequivocally” that a “hearing shall be held before the court. . . . “

 

 

tax sale - RETSL - adequacy of price

In re Upset Sale of Tioga County – Pa. Cmwlth. – November 6, 2023

Adequacy of Sale Price

Initially, “[g]enerally speaking, when a property owner is delinquent in paying taxes, an upset tax sale is conducted to recover the ‘upset price,’ which is the total sum of the taxes owed plus any tax liens and municipal claims[.]” In re Adams Cnty. Tax Claim Bureau, 200 A.3d 622, 623 n.1 (Pa. Cmwlth. 2018); see also Section 605 of the RETSL, 72 P.S. § 5860.605. Properties may be sold at an upset sale on bids equal to or greater than the upset price. See 72 P.S. § 5860.605 (“No sale of property shall be made by the bureau unless a bid equal to the upset price is made.”). 

Additionally, even were we to assume that simply reaching a property’s approximate upset price does not necessarily prove the sufficiency of the price achieved in an upset sale, Pennsylvania courts have held that, in cases challenging tax sales on the basis of the adequacy of the sale price, the mere alleged inadequacy of the sale price, standing alone, is not a sufficient basis upon which to set aside the sale. See Mathias v. York Cnty Tax Claim Bureau (Pa. Cmwlth., No. 714 C.D. 2021, filed July 8, 2022), slip op. at 5 (citing first Allegheny Cnty. v. Golf Resort, Inc., 974 A.2d 1242, 1247 (Pa. Cmwlth. 2009), then Provident Nat’l Bank, N.A. v. Song, 832 A.2d 1077, 1081 (Pa. Super. 2006)). 

While cases involving grossly inadequate sales prices typically involve sheriffs’ sales in mortgage foreclosure actions, the grossly inadequate price may also be examined as a basis to set aside tax sales where irregularities in the sale contribute to the grossly inadequate price. See Hart v. Bulldawg, LLC and City of Phila., Dep’t of Revenue (Pa. Cmwlth., No. 107 C.D. 2016, filed Feb. 14, 2017), slip op. at 7 n.5 (citing Allegheny Cnty., 974 A.2d at 1247-48). 

In the sheriffs’ sale context, this Court has observed: 

Where a tax sale is challenged based upon the adequacy of the price, our courts have frequently held that mere inadequacy of price, standing alone, is not a sufficient basis for setting aside a sheriff’s sale. Allegheny C[n]ty. [], 974 A.2d [at] 1247 [] (quoting Provident Nat’l Bank [], 832 A.2d [at] 1081[]). Where a gross inadequacy exists, however, courts have found proper grounds to set aside a sheriff’s sale, and each case is determined on its own facts. Id. “It is for this reason that the term ‘grossly inadequate price’ has never been fixed by any court at any given amount or any percentage amount of the sale.” Scott v. Adal Corp., [] 509 A.2d 1279, 1283 ([Pa. Super.] 1986)[]. In addition, a presumption exists that the price received at a public sale is the highest and best available. Blue Ball Nat’l Bank v. Balmer, 810 A.2d 164, 167 (Pa. Super. 2002), appeal denied, [] 820 A.2d 702 (Pa. 2003). 

City of Phila. v. Hart, 224 A.3d 815, 822 (Pa. Cmwlth. 2020); see also Mathias, slip op. at 5-6. “Pennsylvania courts have concluded that a sheriff’s sale price is grossly inadequate where [the] sale price was a small percentage – roughly ten percent or less – of the established market value.” Bank of Am., N.A. v. Est. of Hood, 47 A.3d 1208, 1212 (Pa. Super. 2012) (collecting cases). 

In the instant matter, the Property’s approximate upset sale price was $7,465.64 and the final sale price realized at the Upset Sale was $83,000.  This realized sale price, therefore, represents more than 11 times the approximate upset sale price necessary to allow the Upset Sale to proceed to completion. See 72 P.S. § 5860.605. Additionally, the Property was assessed at $465,000. While there is no fixed percentage of amount of appraised value versus sale price that automatically constitutes a “grossly inadequate price,” the $83,000 sale price represents approximately 18% of the appraised value of the Property, or nearly twice the percentage of appraised value versus sale price that Pennsylvania courts have found to represent a “grossly inadequate price” in sheriffs’ sales. See Est. of Hood, 47 A.3d at 1212. Additionally, Appellant can hardly feign surprise that the Property’s final sale price represented only approximately one fifth the assessed value, where the Bureau expressly warned Appellant in the July 2021 Notice that the Property may be sold at the Upset Sale for a fraction of its fair market value. ... Based on this information, the Trial Court found no legal basis for awarding equitable relief based on the sale price. See Trial Court Opinion at 4. We find no error in the Trial Court’s determination. Hart, Mathias, Est. of Hood. 

 

UC - decisions - adequate findings

Cairns v. UCBR – Cmwlth. Court  - 89-18-23 – unreported decision  ***

 

 

 

 

While we are bound by the findings of the Board as the ultimate finder of fact, it is incumbent upon the Board to make findings of the underlying facts which are sufficiently definite and specific to enable this Court to pass upon the legal issues involved. Unemployment Comp. Bd. of Rev. v. Walton, 343 A.2d 70, 72 (Pa. Cmwlth. 1975). The ambiguity in the findings of fact in this case matters, because a per diem substitute accepts the uncertainty of continued employment, while a long-term substitute does not. Whether Claimant was, in fact, a per diem substitute for the entirety of the previous academic year or, after her initial hire at that position, became a long-term substitute for the balance of the academic year, or went back and forth as in Carlynton, is of critical importance  in determining whether the offer made represents, in the terms of the Board's regulation, a substantial reduction in "wages . . . and hours of work." 

In light of the forgoing, we vacate the order of the Board and remand for proceedings consistent with this opinion, the making of sufficiently definite findings of fact, and the entry of an order based upon those findings. 

 

Editor’s note:

Administrative decisions must have adequate findings and reasons.

16)  Findings and reasons -  2 Pa. C.S. § 507 - “All adjudications….shall contain find­ings and the reasons for the adjudica­tion….”

                                                                                                                                                                        

a) Basic findings of fact are “essential to the validity” of an administrative decision. The findings must be “sufficiently specific to enable the reviewing court to adequately review the findings and decide questions of law. Begis, 398 A.2d 643.  Accord, Page’s Dept. Store v. Velardi, 346 A.2d 556, 561 (Pa. 1975).  “Failure to make the requisite findings is a violation of due process,” Begis;  2 Pa. C.S. §507.

                                                                                                                                                                                                                                                                                                                                    

b)  Findings must be specific, not general and conclusory.  Koggan v. UCBR, 472 A.2d 277 (Pa. Cmwlth 1984) 

 

c) Findings must be complete.  They must cover all issues “necessary to resolve the issues raised by the evidence which are relevant to the decision.”  Koggan, Page’s Dept. Store.

 

d) The appellate court may not infer from the absence of a finding that a question was resolved in favor of the prevailing party before the agency.  Koggan

 

e) Where findings are not adequate, the appellate court will usually remand the case, since it is not the court’s function to be a fact-finder.”  Koggan, Page’s Dept. Store.

 

f) credibility findings – Held sufficient in UC cases if the UCBR simply says it chose to believe one side or the other.  Peak v., UCBR, 501 A2d 1383, 1387 (Pa. 1985), 1387.  Compare, Higgins v. WCAB, 854 A2d 1002, 1007 (Pa. Cmwlth 2004), where court held that a credibility determination was not adequate because the fact-finder failed to "issue a reasoned decision" and to "articulate some objective basis for [its] credibility determinations."

                

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

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 

UC - notice of issues

Bat Conservation and Mgmt v. UCBR – Cmwlth. Court – en banc – reported – 6-8-23

 

Case remanded for new remand hearing on issue on which employer did not receive express notice – retaliatory termination rather than disparate treatment, for which the proof and issues are different.

 

Disparate treatment -   Disparate treatment is an affirmative defense by which a claimant who has engaged in willful misconduct may still receive [UC] benefits if [she] can make an initial showing that: (1) the employer discharged claimant, but did not discharge other employees who engaged in similar conduct; (2) the claimant was similarly situated to the other employees who were not discharged; and (3) the employer discharged the claimant based upon an improper criterion. Once the claimant has made this showing, the burden then shifts to the employer to show that it had a proper purpose for discharging the claimant.  Geisinger Health Plan v. UCBR, 964 A.2d 970, 974 (Pa. Cmwlth. 2009).

Retaliatory termination  --  In order to prove a prima facie case of retaliation, a complainant must show that: 1) [she] was engaged in a protected activity; 2) [her] employer was aware of the protected activity; 3) subsequent to participation in the protected activity, [she] was subjected to an adverse employment action; and[] 4) there is a causal connection between [her] participation in the protected activity and the adverse employment action. Spanish Council of York v. Pa. Hum[.] Rel[s.] Comm’n, 879 A.2d 391, 399 (Pa. Cmwlth. 2005). Upon showing a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973)). Finally, the burden shifts back to the complainant to show that the employer’s proffered reasons are pretextual. Id.  Uber v. Slippery Rock Univ. of Pa., 887 A.2d 362, 367 (Pa. Cmwlth. 2005). Employer argues it was not prepared to meet its shifting burden on remand because it had no notice that it would have to defend itself against a retaliation claim. The UCBR rejoins that the necessary notice was supplied by the 

 

PFA - past abuse relevant to present fear

B.K.P. v. J.R.B. – Pa. Superior – 9-25-23 – re4ported

https://www.pacourts.us/assets/opinions/Superior/out/J-S24002-23o%20-%20105680648240318046.pdf?cb=1

 

https://casetext.com/case/bkp-v-jrb

 

Held: Three-year protection order properly entered where

• Physical abuse occurred less than 2 years prior to current petition
• Prior physical abuse was a single incident which the court, in prior litigated PFA case, held to be “brutal....sexual assault”
• Current defendant conduct consisted of stalking

 

Citing E.K. v. J.R.A., 237 A.3d 509, 519 (Pa. Super. 2020), the court held that “[p]ast are significant in determining the reasonableness of a PFA petitioner’s fear.”

UC - voluntary quit - claimant had good cause to quit her job

Crane v. UCBR – Cmwlth. Court – 8-15-23 – unreported memorandum opinion**

N.B. Claimant was represented by North Penn Legal Services.  Well done !

 

 

Held: Claimant had good cause to quit her job, after 16 years as an aide to special needs children, where the school district denied her request for a leave of absence w/o pay.  Claimant decided to stay at home to care for her suicidal daughter, who attended school every other day but who, when at home, needed to have an adult present to keep her safe.

 

A claimant who voluntarily quits bears the burden of proving necessitous and compelling cause for leaving her job. Brunswick Hotel & Conf. Ctr., LLC v. UCBR., 906 A.2d 657 (Pa. Cmwlth. 2006). Specifically, a claimant must establish that “(1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and (4) the claimant made a reasonable effort to preserve her employment.” Id. at 660. A determination as to whether necessitous and compelling cause for leaving employment exists is a question of law, subject to plenary review by the court., 

 

No substantial evidence for two of UCBR findings – 

The court held that there was no substantial evidence to support the Board’s findings on two critical issues

- Claimant informing the school that her daughter had suicidal tendences and could not stay at home alone

- Claimant informing school that she was willing to work every other day, in accordance with her daughter’s school schedule

Claimant’s evidence on these points was clean and undisputed, even looking at the evidence in the light most favorable to the school. 

 

FMLA – Claimant’s leave request was tantamount to a request under FMLA – Family and Medical Leave Act

In Eshbach v. UCBR, 855 A.2d 943, 949 (Pa. Cmwlth. 2004), the court held that a claimant must notify the employer that leave is necessary to care for a serious medical condition but he or she need not expressly request FMLA leave in order to trigger an employer’s obligation. Id. at 948. In other words, an employer’s obligation is triggered when it acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason.  Here, Employer did not contradict Claimant’s testimony that she informed the Superintendent of the daughter’s needs thereby providing Employer with sufficient information to trigger its obligation, at a minimum, to make further inquiries of her regarding purported grounds for eligibility under the FMLA. Consequently, Claimant made reasonable efforts to preserve her employment by way of a request for unpaid leave and/or via her query as to whether there was anything she could do in order to remain employed. Employer is not an unsophisticated employer, it had unfettered access to the daughter’s confidential records, and Claimant had worked there for sixteen years. 

Accordingly, the court held that Claimant met her burden of proving that she had necessitous and compelling cause for her voluntary quit and, therefore, reversed the decision of the UCBR.

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 

 

consumer protection - no misrepresentation by omission - no affirmative duty to disclose

Halpern v. Ricoh USA – Pa. Super. 87-28-23

https://www.pacourts.us/assets/opinions/Superior/out/J-S20016-23o%20-%20105619038233953299.pdf?cb=1

 

Held: Deception by omission only actionable if there is an affirmative duty to disclose a defect in a good or service, following Romeo v. Pittsburgh Associates, 787 A.2d 1027 (Pa. Super. 2001), even though the court criticized Romeo. 

 

The court stated in n. 5:

At best, this Court’s CPL analysis in Romeo v. Pittsburgh Assocs., 787 A.2d 1027, 1033 (Pa. Super. 2001), is sparse. The panel did not review the statute’s language, its legislative history, or similarly worded statutes from our Sister States or the Federal Government. See, e.g., Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 745 (N.Y. 1995) (allowing plaintiff’s nondisclosure theory to proceed to trial under New York’s statutory equivalent of the CPL, “where the business alone possesses material information that is relevant to the consumer and fails to provide this information” without relying upon common-law duty to disclose); see also, Kyszenia v. Ricoh USA, Inc., 583 F. Supp. 3d 350, 360 (E.D.N.Y. 2022) (holding that a complaint nearly identical to Buyer’s amended complaint stated a claim against Ricoh for selling similarly defective Pentax cameras under the New York statute but dismissing action as time barred). Moreover, the Romeo court offered no explanation as to how a common-law duty to disclose (or lack thereof) could override the statutory mandates of the CPL. Presumably, the General Assembly adopted the remedial CPL to remove the old strictures of common-law pleading and proof from the law of consumer transactions. Romeo’s holding may have undermined that legislative goal. 

Still, “it is beyond the power of a Superior Court panel to overrule a prior decision of the Superior Court, except in circumstances where intervening authority by our Supreme Court calls into question a previous decision of this Court.” Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006). We know of no such intervening pronouncement. Nor do we think, as Buyer contends in his brief and reply brief, that Gregg v. Ameriprise Fin., Inc., 245 A.3d 637, 646 (Pa. 2021), did so. There, the question was what level of intent a vendor must have to violate the CPL-catch-all provision, not whether a common-law duty to disclose is a prerequisite to rendering a vendor’s nondisclosure actionable. The High Court held that no proof of mental state is required; thus, the catch-all provision imposes strict liablity. Buyer seems to conflate strict liablity (i.e., liablity without fault) with passive nondisclosure. An affirmative false statement and a deceptive nondisclosure may both be made intentionally (fraud), negligently (misrepresentation), or with the utmost care (strict liability). Thus, Gregg’s holding regarding strict liability under the catch-all provision did not overrule Romeo sub silentio. 

Because there were no allegations in the complaint that established a common-law duty by Ricoh to disclose the defect in the Pentax camera to Buyer, under Romeo, Buyer failed to state a claim that Ricoh violated the catch-all provision of the CPL by its silence regarding the defective camera. The trial court correctly held that he did not satisfy the third prong of a CPL action, as the test is articulated in Gregg, supra, albeit for an incorrect reason. 

 

 

public utilities - sale to private company rejected - no benefit to public shown

This case was litigated by the office of the state consumer advocate, Patrick Cicero.  Well, done, Patrick! Here’s the story, as reported by WHYY.  https://whyy.org/articles/pa-court-puc-east-whiteland-sewer-sale-aqua/

 

Here’s the link to the decision 

 

P. Cicero v. PUC –  Pa. Cmwlth. – July 31, 2023 – reported, precedential decision

https://www.pacourts.us/assets/opinions/Commonwealth/out/910CD22_7-31-23.pdf?cb=1

 

Here’s what Patrick had to say about the decision:

 

• The Court correctly recognized that the Section 1329 of the Public Utility Code deals solely with the ratemaking rate base valuation of a system if and only if the application is approved and that it is not a short cut to approval.  Specifically, it correctly recognized that nothing in Section 1329 altered the requirements of Section 1102 and 1103 of the Public Utility Code that require a specific, fact-based showing that the acquisition provides an affirmative public benefit.  The Court unequivocally set out that in every 1329 case, the determination of an affirmative public benefit must be rooted in facts that are specific to the transaction and outweigh the harms of the transaction.  This requires the PUC to conduct a fact-based evaluation and balancing such that any approval must demonstrate that the public is better off – on net – because of the transaction than it would be in the absence of the transaction.  

 

• The Court correctly rejected the Commission and Aqua’s argument that Aqua’s technical and legal fitness was, in the abstract, an affirmative public benefit.

 

• The Court also appropriately clarified that while aspirational benefits can be considered, they must be rooted in the facts that are specific to the transaction in question and not general in nature or result from the technical or legal fitness of the buyer.

 

 

Here is a proposed quote from me:

 

“The Commonwealth Court provided unequivocal clarity that the Public Utility Commission must do more than rubber stamp water and wastewater acquisitions brought pursuant to Section 1329 of the Public Utility Code.  It correctly found that the PUC must conduct a fact-based evaluation pursuant to Section 1102 and 1103 which sections require the PUC to only approve acquisitions where the public is affirmatively better off – on net – because of the transaction than it would be in the absence of the transaction.  The OCA takes seriously the requirement that each case must be dealt with on its facts.  The Court correctly recognized the limits of Section 1329 as simply a means of determining the value of an acquired system that forms the basis of rates if the application is approved, but that at the same time the rate impact of the proposed acquisition at the higher costs allowed by Section 1329 is an important factor in determining whether there are affirmative public benefits. This means that each transaction must stand alone and provide affirmative benefit to the public before the PUC can approve the sale.”      

 

 

 

 

employment - natural hair braiding - licensure requirement unconstitutional

Thiam d/b/a Rama Hair Braiding Salon v. Bureau of Professional and Occupational Affairs

Pa.  Cmwlth Court – 7-25-23

Unreported memorandum opinion** 

 

Held:   “[W]e hold that  Petitioner has presented sufficient evidence to establish that the Law’s limited license requirements set forth in Section 5(b)(3)(i) are unconstitutional as applied to her as they are violative of Petitioner’s constitutional right to pursue her chosen occupation under article I, section 1 of the Pennsylvania Constitution. 

While it may be reasonable for the Legislature to regulate the natural hair braiding industry, the requirement for 300 hours of training and an examination in English to ensure Petitioner, who has practiced the art of natural braiding for most of her life, is properly trained in basic areas like sanitation, anatomy, and scalp care and possesses the cognitive and manipulative skills necessary to braid hair is unduly burdensome. 

Petitioner and Dr. Edi testified regarding the difficulty Petitioner and others in the Philadelphia area face in finding a school to meet the Law’s requirements, which  will make it nearly impossible for Petitioner to hire licensed natural hair braiders to operate the Salon. They also spoke of the costliness of such training and the unavailability of accommodations to address Petitioner’s language barrier. Moreover, the Law is not reasonably related to protecting the safety and health of patrons of the Salon, where Petitioner uses no chemicals, dyes, or heat, and she has been practicing her craft for most of her life without complaint. Nixon, 839 A.2d at 287; Gambone, 101 A.2d at 637. For these reasons, we reverse the Board’s March 8, 2022 Order.

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** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 Editor’s note:  Someone should move for this opinion  to be reported.  I have sample petitions.

 

 

 

LT - self-help eviction - injunction - immediate and irreparable harm

A commercial tenant that was evicted by self-help measures is entitled to a preliminary injunction restoring possession because (1) the Landlord-Tenant Act provides the “complete and exclusive system in itself” to obtain the eviction of tenants and (2) the loss of a leasehold interest in real estate constitutes irreparable harm.  Fraport Pittsburgh v. Allegheny County Airport Authority, No. 974 WDA 2022 (Pa. Super. May 9, 2023)

From the opinion---

The trial court found that evidence demonstrating all the elements of a preliminary injunction was shown except for the first element requiring “immediate and irreparable harm [defined as] injury for which damages can only be estimated by conjecture and not by an accurate pecuniary standard or cannot be adequately compensated by an award of monetary damages.” City of Allentown v. Lehigh Cnty. Auth., 222 A.3d 1152, 1160 (Pa. Super. 2019) . . . . “In order to meet this burden, a plaintiff must present concrete evidence demonstrating actual proof of irreparable harm.” Id. (citation omitted). 

Where there is a real property interest, the loss of that interest constitutes irreparable harm because each parcel of  real estate is unique. See Peters v. Davis, 231 A.2d 748 (Pa. 1967), stating: 

The aggrieved property owner’s right is absolute. However hard his acts might be regarded; he asks the court for the enforcement of a legal right of a positive character with respect to land which it is conceded was wrongfully taken from him. He is  entitled to a decree. The rule in such a case is founded on sound reason. If damages may be substituted for the land, it will amount  to an open invitation to those so inclined to follow a similar course and thus secure valuable property rights. The amount of land involved does not change the situation. Here is a wrongful invasion of a positive right to real property. If a property owner deliberately and intentionally violates a valid express restriction running with the land or intentionally ‘takes a chance’, the appropriate remedy is a mandatory injunction to eradicate the violation. 

Id. at 752 (citation omitted).

Our Supreme Court has also held that, “In light of the unique and intrinsic value of land, interference with the plaintiff’s contractual rights to ownership of that land must be deemed irreparable harm.” New Eastwick Corp. v. Philadelphia Builders Eastwick Corp., 241 A.2d 766, 770 (Pa. 1968). Additionally, regarding possession of a leasehold interest, “[t]here is substantial common-law authority that the leasing of property is identical to  the sale of the premises.” Com., by Creamer v. Monumental Properties, Inc., 329 A.2d 812, 822 (Pa. 1974) (citation omitted). 

 

LT - self-help eviction is not allowed

A commercial tenant that was evicted by self-help measures is entitled to a preliminary injunction restoring possession because (1) the Landlord-Tenant Act provides the “complete and exclusive system in itself” to obtain the eviction of tenants and (2) the loss of a leasehold interest in real estate constitutes irreparable harm.  Fraport Pittsburgh v. Allegheny County Airport Authority, No. 974 WDA 2022 (Pa. Super. May 9, 2023).

 

Thank you Brandon Copeland for bringing this case to my attention.

 

“Not only should a preliminary injunction be issued because money

damages cannot compensate Fraport for loss of its leasehold interest, but it

was also an error for the trial court not to issue a preliminary injunction due

to ACAA’s self-help by the improper use of the Allegheny County Police to

advance its commercial interests to evict Fraport.

 

Because a landlord/tenant relationship existed, ACAA was required to

utilize the procedures set forth in the Landlord Tenant Act of 19519

to lawfully evict10 Fraport. The Landlord Tenant Act is a comprehensive regulatory

scheme governing the landlord and tenant relationship. See Stonehedge

Square Ltd. P'ship v. Movie Merchants, Inc., 715 A.2d 1082, 1085 (Pa.

1998). It “sets up the procedure whereby a landlord may repossess [the]

premises if he has a right to evict the tenant.” Warren v. City of

Philadelphia, 115 A.2d 218, 221 (Pa. 1955). The Landlord Tenant Act states

that all other inconsistent acts are repealed and that “[i]t is intended that

this act shall furnish a complete and exclusive system in itself.” 68

P.S. § 250.602 (emphasis added).

 

***

 

Regarding self-help, while the Landlord Tenant Act provides that it is the

“complete and exclusive system in itself” to obtain the eviction of

tenants, surprisingly, no Pennsylvania appellate decision has addressed the

issue of the appropriateness of a landlord’s use of self-help, but the courts of

common pleas which have addressed this issue have consistently held self-

help is not available to evict a tenant. See e.g., O'Brien v. Jacob Engle

Foundation, Inc., 47 Pa. D. & C.3d 557, 558–59 (Cumberland Cty. 1987)

(noting that self-help should not be used where judicial procedures, like the

Landlord Tenant Act, are available); Lenair v. Campbell, 31 Pa. D. & C.3d

237, 241 (Philadelphia Cty. 1984) (“Upon reviewing the [Landlord Tenant Act]

in its entirety, it becomes apparent that self-help eviction is not a remedy

under any circumstances. . . . [T]he legislature clearly expressed its intention

that the Act be the sole source of rights, remedies and procedures governing

the landlord/tenant relationship.”); Wofford v. Vavreck, 22 Pa. D. & C. 3d

444, 453 (Crawford Cty. 1981) (“A landlord desirous of seeking repossession

of his leased premises from his tenant for nonpayment of rent must do so

either by bringing an action under the Landlord and Tenant Act [], and the

related Pennsylvania Rules of Civil Procedure for Justices of the Peace, or by

bringing an action in ejectment.”); Williams v. Guzzardi, 875 F.2d 46, 52 n.

13 (3d Cir. 1989) (analyzing pertinent Pennsylvania law). Moreover, under

the Master Lease, the ACCA limited itself to seeking only remedies at law and

equity and not to engage in self-help, even if it was permissible. See Master

Lease at 46, § 12.04).