admin. law - appeal - final adjudication

NHS Human Services v. DPW - December 8, 2009 - Commonwealth Court

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/347CD09_12-8-09.pdf

In holding a warning was not a final adjudiction under the Administrative Agency Law, 2 Pa. C.S. §§ 501-508, 701-704, the Court said that an "An adjudication is defined as 'Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities, or obligations of any or all of the parties to the proceeding in which the adjudication is made.' 2 Pa. C.S. §101.

A letter or an email message can constitute an adjudication, requiring notice and a hearing, if a two-prong test is met: 1) the letter must be an agency’s final order, decree, decision, determination or ruling; and 2) it must impact on a party’s personal or property rights, privileges, immunities, duties, liabilities or obligations. Guthrie v. Borough of Wilkinsburg, 505 Pa. 249, 478 A.2d 1279 (1984), Benson Lincoln Mercury, Inc. v. DOT, 602 A.2d 496 (Pa. Cmwlth. 1992), and Fiore v. DER, 510 A.2d 880 (Pa. Cmwlth. 1986).

UC - voluntary quit - racial discrimination

Atlas Machining and Welding v. UCBR - December 8, 2009 - Cmwlth. Court - unreported memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/651CD09_12-8-09.pdf

The court affirmed a Board decision finding that an African-American claimant had good cause to quit because of racial harassment, including racial slurs by a co-worker and foreman and several instances of his finding a rope fashioned in the shape of a noose.

"There is no question that racial discrimination may constitute necessitous and compelling cause to terminate one’s employment. Taylor; Brown v. UCBR, 780 A.2d 885 (Pa. Cmwlth. 2001); McIntyre v. UCBR, 420 A.2d 34 (Pa. Cmwlth. 1980); Watts v. UCBR, 410 A.2d 976 (Pa. Cmwlth. 1980)."

Given the employer's "ineffectual" attempts to address these problems, it would have been futile for claimant to pursue things further with the employer. Claimant thus had good cause to quit.

housing - code enforcement - illegal search - civil rights

Ciarlone v. City of Reading - ED Pa - November 18, 2009

http://www.paed.uscourts.gov/documents/opinions/09d1382p.pdf

Apartment owner and several tenants brought sec. 1983 action against city, code enforcement officer, et al. for unlawful inspection of premises by forced actions -- including breaking into apartments with sledge hammer -- without any warrant or notice to owner or tenants.

Defendants' motion to dismiss was rejected by the court, which held that plaintiffs had pleaded sufficient facts concerning a) the constitutionality of the search, b) the city's failure educate and train code enforcement officers, c) due process claims. and d) first amendment retaliation (plaintiff owner had publicly and repeatedly spoken out against the city code enforcement department) to survive a 12(b)(6) motion to dismiss.

consumer - natl. banks - gift card - state UDAP claims - no pre-emption

Mwantembe, et al. v. TD Bank, et al. - ED PA - November 17, 2009

http://www.paed.uscourts.gov/documents/opinions/09d1375p.pdf

Plaintiff brought class action on behalf of Pennsylvania residents who held or hold gift cards sold by the defendants, assert causes of action under Pennsylvania law for violations of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201-2(3), 201-2(4)(xxi), 201-3, breach of contract and third party beneficiary.

They allege that the defendants’ deducting undisclosed dormancy and other fees that diminish the value of the gift cards before their expiration is “deceptive, unlawful, and misleading,” and is calculatedto “trick, mislead, and significantly confuse consumers in Pennsylvania into not retaining or claiming the full value and buying power” of the cards.

The plaintiffs allege that the defendant banks marketed and sold the gift cards without adequately disclosing the cards’ material terms and conditions to purchasers and recipients. They also claim that prior to purchase, the defendants’ representatives never discussed or otherwise disclosed to purchasers the imposition of dormancy and replacement fees, or issue dates and expiration dates.

The question is whether state law imposing disclosure and marketing requirements for gift cards prevents or significantly interferes with the national banks’ activity or the federal regulator’s exercise of its powers.

Because enforcing state consumer protection laws regarding the disclosures does not conflict with federal law governing gift cards and will not unduly impair the defendants banks’ ability to engage in the business of selling gift cards, we hold that the plaintiffs’ state law claims are not preempted.

UC - appeal - lack of jurisdiction

Pa. Turpike Commission v. UCBR - Cmwlth. Court - December 3, 2009 - unreported memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1104CD09_12-3-09.pdf

The court upheld a UCBR decision that a UC Service Center did not have jurisdiction to issue an amended financial determination, finding claimant ineligible under sec. 1002(11) (policy-making services excluded from "employment"), when it had previously issued a financial determination finding claimant eligible.

Claimant was laid off from her job on November 20th, when her position was eliminated. She applied for UC shortly after that time.

On December 2nd, the UCSC issued a financial determination notice (First Notice) finding the claimant was financially eligible for UC. Claimant began receiving benefits. The Notice advised the employer that it had until December 17th to appeal. It did not do so.

On January 20, 2009, and "without any intervening activity of record," the UCSC issued a Second Notice of financial determination finding claimant not financially eligible, because her job involved making policy decision. Claimant filed a timely appeal.

At the ensuing referee, claimant testified that her duties did not involve making policy decisions. The employer witness testified that employer did not receive the First Notice but that it would have known about claimant's receipt of UC benefits shortly after payments began. Employer did not appeal from the First Notice.

The Board affirmed the referee decision that, because Employer did not appeal the First Notice, the UCSC lacked jurisdiction to issue the Second Notice, where it was outside of the appeal period, citing 43 P.S. 821(3), which says that a party must appeal a determination within 15 days.

The court held that the Service Center did not have jurisdiction to issue the Second Notice.

Section 501(e) of the Law, 43 P.S. §821(3), provides. . .that a party must appeal a determination within 15 calendar days after such notice was delivered to that party personally or was mailed to his or her address. The Service Center may issue a revised notice of determination within the appeal period if no appeal has been filed. Garza v. UCBR, 669 A.2d 445 (Pa. Cmwlth. 1995). However, the Service Center may not issue a revised notice of determination after the appeal period has expired; the determination becomes final and the Board loses jurisdiction to consider the matter. Vereb v. UCBR, 676 A.2d 1290 (Pa. Cmwlth. 1996). It is well-settled the statutory time limit for filing an appeal is mandatory in the absence of fraud or a breakdown in the administrative agency. First Nat’l Bank of Bath v. UCBR, 619 A.2d 801 (Pa. Cmwlth. 1993).

Here, the certified record lacks any indication Employer attempted to appeal the First Notice, and HR Director admitted as much. Absent an appeal, the First Notice became final and binding on the parties and, concomitantly, deprived the Service Center of jurisdiction to issue the Second Notice. Vereb; First Nat’l Bank. Thus, we discern no error in the Board’s order vacating the Second Notice. (emphasis added)

The court also rejected the Employer argument that it had submitted documents that showed an intent to appeal. First, the court noted that the documents were not part of the certified record. More important, however, the court held that even

assuming the forms evidenced Employer’s intent to challenge the Service Center’s eligibility determination, they do not negate Employer’s obligation to file an appeal of the First Notice. In First National Bank of Bath, [619 A.2d 801 (Pa. Cmwlth. 1993)], [t]his Court rejected the employer’s assertions the form [requesting relief from charges] manifested its intent to appeal. We explained that “[t]he language of [S]ection 501(e) … is both clear and mandatory. Employers have fifteen (15) days to file an appeal from a determination … or that determination ‘shall be final and compensation shall be paid or denied in accordance therewith.’ Because appeal provisions of the [Law] are mandatory, appellants carry a heavy burden to justify untimely appeals, and absent proof of fraud, cannot prevail.” 619 A.2d at 803. (First emphasis added).

Applying the above principle here, none of Employer’s forms can substitute for an appeal unless they specifically advise the Board that Employer appealed. See 34 Pa. Code §101.82(c)(1) (use of the prescribed form is not mandatory to initiate an appeal; any written notice specifically advising that the interested party is filing an appeal or requesting review of a decision is sufficient). Once again, the lack of the forms in the record prevents review to determine whether Employer specifically advised the Board it was appealing the First Notice.

admin. law - regulations - type, adoption, validity

Slippery Rock School District v. UCBR - Pennsylvania Supreme Court - November 30, 2009

http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-72-2009mo.pdf

This case concerns the adoption by the Pennsylvania Dept. of Labor and Industry (DOLI) of a UC regulation concerning benefits for teachers and other educ. employees, who are disqualified from receiving benefits if they have a "reasonable assurance" of continuing employment during the ensuing regular school period, UC Law sec. 402.1, 43 P.S. sec. 802.1.

The regulation involved established a new test of "economic equivalency" -- that there is reasonable assurance only if the "economic terms and conditions" offered for the ensuing academic period are "not substantially less that the terms and conditions of the individual's employment" prior to being laid off at the end of the first academic period. 34 Pa. Code sec. 65.161(a)

In holding that the DOLI regulation in question was valid, the court discussed several important features of state administative law concerning the types, adoption, and validity of regulations.

Pennsylvania courts have developed a two-step process for determining whether an administrative regulation is mandatory and binding. First, a court must determine what type of regulation it is examining (legislative or interpretive) and second, whether the regulation is valid.
Depending on what type it is, the regulation may be either binding (legislative) or merely entitled to deference (interpretive). Id. Generally, a legislative regulation establishes “a substantive rule creating a controlling standard of conduct.”

Legislative regulation - validity - A legislative regulation is valid if adopted pursuant to delegated legislative power, in accordance with the appropriate administrative procedure, and is reasonable. By comparison, an interpretive regulation merely construes and does not expand upon the terms of a statute.

Interpretive regulation - validity - An interpretive regulation is valid if it “genuinely track[s] the meaning of the underlying statute.” Id. If the interpretive regulation “is unwise or violative of legislative intent, courts disregard [it].” The test for determining the validity of an interpretive regulation is also applied to a regulation that establishes a substantive rule in two other circumstances: if the regulation was adopted by a Commonwealth agency without lawmaking power or if it was adopted without meeting the appropriate procedural requirements.

Scope of DOLI power and authority to adopt regulations
Under Section 201 of the Act, 43 P.S. § 761(a), the Department shall have power and authority to adopt, amend, and rescind such rules and regulations . . . as it deems necessary or suitable. Such rules and regulations shall not be inconsistent with the provisions of [the Act.]

The court rejected the school district’s argument that the Section 201(a) limitation regarding regulations inconsistent with the statute should be given the broad interpretation that the Department may not adopt any legislative regulations. Such an interpretation "leads to the absurd result that enabling statutes that do not contain the limiting language permit the adoption of regulations inconsistent with those statutes. Clearly the legislature would not authorize agencies to adopt binding regulations inconsistent with the applicable enabling statutes. . . .Indeed, all regulations, whether legislative or interpretive “must be consistent with the statute under which they were promulgated.” The sec. 201(a) limitation merely codifies this requirement by stating that only Department regulations consistent with the provisions of the Act are valid.

The court also rejected the school district’s argument that the complex nature and “detailed statutory scheme” of the UC Act suggests that the Department’s regulatory authority is limited. Indeed, the Act specifically grants the Department “power and authority to adopt, amend, and rescind such rules and regulations . . . as it deems necessary or suitable.” 43 P.S. § 761(a). If the complex nature of a statute (the Act) were a criterion for denying a Commonwealth agency (the Department) the power to promulgate legislative regulations, then the intent of the legislature that the Department adopt regulations “as it deems necessary or suitable,” as expressed by the plain language of the Act, would be thwarted. Indeed, the logical consequence of the School District’s argument is that the Department would not be able to adopt any regulations because the legislature had spoken on every issue. The rules of statutory interpretation do not permit such a conclusion.

The court also refused to consider the complexity of a statutory scheme as an element in determining the ambit of an agency’s statutory power and authority to adopt regulations where the language of the statute is clear and unambiguous in its direction that the agency may adopt such regulations.

What is a "reasonable regulation"?
In deciding whether an agency action, such as promulgation of a legislative regulation, is reasonable, a court is "not at liberty to substitute its own discretion for that of administrative officers who have kept within the bounds of their administrative powers. To show that these have been exceeded in the field of action involved, it is not enough that [the agency’s regulation] shall appear to be unwise or burdensome or inferior to another. Error or unwisdom is not equivalent to abuse. What has been ordered must appear to be so entirely at odds with fundamental principles as to be the expression of a whim rather than an exercise of judgment." Similarly, the Court has held that “appellate courts must accord deference to the agency and may only overturn an agency determination if the agency acted in bad faith or the regulations constituted a manifest or flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions.”

The regulation in question was reasonable and consistent with the UC Law as a whole and corrected an "inequity" in the UC Law
The court held that the regulation was not inconsistent with the language of the state and that it was "reasonable, because it is not so at odds with [the statute's] “fundamental principles as to be the expression of a whim rather than an exercise of judgment.”

According to the school district, the regulation conflict with the legislative intent of sec. 402.1(1) because the purpose of that section is “to eliminate the payment of benefits to school employees during summer. However, the court found that that "view fails to acknowledge that sec. 402.1(1), when read in its entirety and in the context of the Unemployment Compensation Act, offers a limited right to avoid paying unemployment benefits." [emphasis added]

It is true that "intent of the legislature in passing sec. 402.1 was to eliminate the payment of benefits to school employees during summer months and other regularly scheduled vacations, on the rationale that such employees are able to anticipate and prepare for these nonworking periods. The law thus recognizes that these employees are not truly unemployed or suffering from economic insecurity during scheduled recesses."

However, this "rationale breaks down with respect to school employees like the claimant. The decrease in her income was not caused simply by the summer vacation but by the school district’s decision to offer her a position with fewer hours, salary, and benefits. The regulation addresses the inequitable gap created for school employees like claimant when her position disappears during the second academic year and her only option is to be unemployed or accept a position with less or possibly no compensation."

The Department’s regulation thus "remedies the inequity pursuant to the stated purposes of the Unemployment Compensation Act. The first stated goal is humanitarian: to provide “[s]ecurity against unemployment and the spread of indigency.” 43 P.S. § 752 (Declaration of public policy). The Regulation extends unemployment benefits to persons who have suffered a loss of income." [emphasis added]

The Act’s second stated and equally important goal is to cooperate fully with USDOL so as “to secure to this Commonwealth and its citizens all advantages available under the provisions of the Social Security Act that relate to unemployment compensation.” 43 P.S. § 767(a)(1). As the Pa. Bulletin publication recounts, USDOL notified the Commonwealth of its failure to conform to federal law in its interpretation of “reasonable assurances.” The Department’s regulation adjusted Pennsylvania unemployment law to conform to USDOL’s requirement and, as a result, met its statutory mandate. Placed into context, the regulation is clearly consonant with Section 402.1(1) and the rest of the Act so it is therefore reasonable.

contracts - student handbook

Tran v. State System of Higher Eduction - Cmwlth. Court - December 2, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1912CD08_12-2-09.pdf

Nursing student at state university sued school for improperly dismissing her from the program, in violation of the terms set out in the student handbook.

The court held that the handbook "does not constitute a bilateral contract by which the University was bound. The cases relied upon by Petitioner...to establish the existence of such a contract involved private college students pursuing contract damages against private colleges and universities for averred violations of the disciplinary procedures in the respective student handbooks. Pennsylvania Courts have held consistently that the relationship between a student and a privately funded college is “strictly contractual in nature.” Reardon, 926 A.2d at 480; see also Barker v. Bryn Mawr College, 278 Pa. 121, 122, 122 A. 220, 221 (1923); Psi Upsilon of Philadelphia v. University of Pennsylvania, 591 A.2d 755, 758 (Pa. Super. 1991); Boehm v. University of Pennsylvania School of Veterinary 7 Medicine, 573 A.2d 575, 579 (Pa. Super. 1990); Morein v. Drexel University, 44 Pa. D. & C. 4th 13 (2000); Smith v. Gettysburg College, 22 Pa. D. & C. 3d 607 (1982); and Eter v. College Misericordia, 28 Pa. D. & C. 3d 402 (1982). (emphasis in original).

Commonwealth Court "has declined to construe the student handbook of a public university as a contract between the public university and the student. Crabtree v. California University of Pennsylvania, 606 A.2d 1239, 1240 n. 3 (Pa. Cmwlth. 1990). Accordingly, because the University is a public entity, we conclude that the Handbook did not constitute a contract between Petitioner and the University. Rather, the Handbook set forth the administrative procedures and remedies available and, if the University failed to follow those procedures and remedies, Petitioner could have, and should have, appealed the University’s determinations.

Query: What is the basis for distinguishing private v. public here?

execution - entireties property

State Farm v. Lincow - ED Pa. - December 1, 2009 (decision of magistrate judge)

http://www.paed.uscourts.gov/documents/opinions/09D1420P.pdf

The property at issue -- season tickets to the Philadelphia Eagles -- is not the sort that our clients are likely to have, but the principles involved are very important and relevant.

The creditor got a judgment against husband and began execution on Eagles season tickets. The judgment debtor moved for a determination of ownership, claiming that the tickets were entireties property belong to both him and his wife.

Under Pennsylvania law, a judgment creditor may execute on property held by husband and wife as tenants by the entireties only if both spouses are judgment debtors. Klebach v. Mellon Bank, N.A., 565 A.2d 448, 450 (Pa. Super. Ct. 1989). If only one spouse is the judgment debtor, entireties property is immune from process, execution, or sale. The judgment in this case was just against the husband and not the wife.
The issue of ownership of is a matter of contract interpretation. Under Pennsylvania law, when the intention of the parties is clear in the written contract, there is no need to resort to extrinsic evidence. Instead, the meaning of a clear and unequivocal written contract “must be determined by its contents alone.” Bohler-Uddeholm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79, 92 (3d Cir. 2001), cert. denied, 534 U.S. 1162 (2002).

However, where the contract terms are ambiguous and susceptible to more than one reasonable interpretation, the court may receive extrinsic parol evidence to resolve the ambiguity. See id at 93. A contract “will be found ambiguous if, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning.” Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 614 (3d Cir. 1995).

In this case, only the husband signed the agreement. However, he testified that was because there was only one signature line. In addition, the tickets were paid for in the past from a joint account, and both husband and wife are listed as ticket owners on several documents. The court thus found that the agreements are ambiguous concerning ownership, and the court considered parol evidence to resolve the ambiguities. That evidence strongly favored a finding that the property was held by the entireties.

In the alternative, even if the court found that the terms of the agreements were not ambiguous, and that the husband/signatory of the contracts was the sole owner, "this is not dispositive because under Pennsylvania law the intent of the husband and wife to hold property by the entireties should be given effect if the evidence supports that fact. See Plastipak Packaging, Inc. v. DePasquale, 937 A.2d 1106, 1110 (Pa. Super. Ct. 2007) (“[I]ntention is the cardinal and controlling element, and if intention that the husband and wife shall take as such, i.e., by entireties, sufficiently appears, it will be given effect.”) (citation omitted), appeal denied, 956 A.2d 436 (Pa. 2008) (Table).

In the absence of a writing executed by both spouses, property titled in one spouse’s name alone, but treated by both spouses during the marriage as property owned by the entireties, constitutes jointly held property. See Hengst v. Hengst, 420 A.2d 370, 370 (Pa. 1980) (applying this principle to a savings plan titled in husband’s name alone; property owned by the entireties where both spouses treated it as jointly held property during the marriage). See also In re Estate of Holmes, 200 A.2d 745, 747-48 (Pa. 1964) (shares of stock purchased by the husband with his own funds, but the certificates for which were issued in the name of the husband and wife, created a gift and an estate by the entireties).

Here, despite only the signature of the husband on the agreements, it is clear that wife and husband treated the Eagles tickets throughout their marriage as entireties property, and intended them to be held as such. This intent is confirmed by the listing of both their names on two separate agreements. Thus, under Pennsylvania law, the property must be considered as being held as tenants by the entireties. As entireties property, the Eagles Tickets, and license associated therewith, are exempt from execution.

UC - reasonable assurance - economic equivalency

Slippery Rock School District v. UCBR - Pa. Supreme Court - November 30, 2009

http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-72-2009mo.pdf


Former long-term substitute teacher who was offered only day-to-day position in the ensuing school year did not have "reasonable assurance" of continuing employment and was thus eligible for UC benefits when laid off from the long-term position.


Section 402.1(1) of the UC Law provides that teachers and other school employees are not entitled to receive unemployment benefits during the summer recess if they have “reasonable assurance” of returning to their job in the next academic year, 43 P.S. § 802.1(1)


The decision was based on 34 Pa. Code § 65.161, which was held to be a reasonable, valid and binding regulation, which was properly adopted, within the Department's powers, and consistent with the terms of the UC Law, sec. 402.1, 43 P.S. § 802.1(1), even though it concededly created a "new standard of conduct" -- economic equivalency.


Under sec. 65.161, there is no reasonable assurance where the "economic terms and conditions of the employment offered to the individual for the second academic period are. . . substantially less than the terms and conditions of the individual’s employment in the first academic period.... (c) For the purposes of subsection (a), economic terms and conditions of employment include wages, benefits and hours of work. "The element of 'reasonable assurance' addressed by the Regulation is known as economic equivalency."


"The Regulation addresses the inequitable gap created for school employees like [the claimant] when her position disappears during the second academic year and her only option is to be unemployed or accept a position with less or possibly no compensation.


The Department’s Regulation also remedies the inequity pursuant to the stated purposes of the UC Act. The first stated goal is humanitarian: to provide “[s]ecurity against unemployment and the spread of indigency.” 43 P.S. § 752 (Declaration of public policy). The Regulation extends unemployment benefits to persons who have suffered a loss of income."


The Act’s second stated and equally important goal is to cooperate fully with USDOL so as “to secure to this Commonwealth and its citizens all advantages available under the provisions of the Social Security Act that relate to unemployment compensation.” 43 P.S. § 767(a)(1). As the Pa. Bulletin publication recounts, USDOL notified the Commonwealth of its failure to conform to federal law in its interpretation of “reasonable assurances.” 33 Pa. Bull. 25 (January 4, 2003). The department’s regulation adjusted Pennsylvania unemployment law to conform to USDOL’s requirement and, as a result, met its statutory mandate. Placed into context, the Regulation is clearly consonant with Section 402.1(1) and the rest of the Act so it is therefore reasonable. The court held that the regulation, 34 Pa. Code § 65.151 was a "valid exercise of the Department’s power to promulgate legislative regulations."

consumer - arbitration clause

Kaneff v. Delaware Title Loan - 3d Cir. - November 24, 2009

http://www.ca3.uscourts.gov/opinarch/081007p.pdf

This case involves a personal loan for $550 on which the plaintiff's car was collateral. Over a 6-month period, plaintiff paid over $800 but still owed over more than $700 on this loan, on which the interest rate was 300%. After a series of unfortunate events, including repossession, plaintiff sued the loan company. She eventually got the car back then brought a class action under a number of consumer protection statutes.

The lower court dismissed the case and granted defendant's motion to compel arbitration, pursuant to a clause in the contract.

Here are comments about the case from plaintiff's counsel, Robert Salvin, staff attorney with Community Impact Legal Services. His brief is attached.

---

We finally have a decision in the Kaneff case, and unfortunately it is not good. The Third Circuit affirmed the district court decision enforcing the arbitration agreement. It is quite disheartening. A copy of the decision is attached. I was so much hoping that after all this time there would be a better decision than this one. The court did not find that the class action waiver was unconscionable.

The court agreed that the cost sharing provision of the arbitration agreement was unconscionable, and severed it from the agreement. That cost sharing provision, which was presumably in all of the contracts, required borrowers to pay their own fees and costs even though the applicable consumer protection statutes would allow fees and costs (including attorney's fees) to be shifted to Delaware Title Loans in a successful case. I had argued that even the presence of the clause was a problem because it was a misrepresentation to all of the consumers who signed similar contracts of their ability to obtain fees and costs in a successful arbitration and would having a chilling effect on challenges. There is not really any discussion of that argument in the decision. There is not much discussion of the exception to arbitration that allowed Delaware Title Loans to bypass arbitration and repossess borrowers' cars by self help. The court basically concludes in summary fashion that the arbitration clause is not unconscionable under Pennsylvania law.

There is one good point to the decision, which is that the court performed a choice of law analysis and did find that Pennsylvania law applied. That is a finding that supports the merits of the argument for every Pennsylvania borrower that title loans originating in Delaware are illegal in Pennsylvania. It is certainly helpful in the Salvatico case.

So the court makes a key choice of law decision that Pennsylvania law applies to the transaction despite the choice of law clause in the contract contrary, but then abandons thousands of Pennsylvanians who have borrowed money from this lender and others like it by depriving them of an effective remedy in the form of a class action.

I do not think it is clear that a Pennsylvania court would reach the same conclusion as to the class action waiver. The Third Circuit has previously indicated its rejection of the Pennsylvania Superior Court cases on class action waivers, which are favorable consumers, but a trial court in Pennsylvania would be bound by those decisions. In other words, I would suggest that a similar case could still be filed in state court against a similar entity challenging a class action waiver under the Superior Court authority, and such a case could be kept in state court if the complaint was limited to state law causes of action and contained express limitations on damages, not more than $74,999 per in person, not more than $4,999,999 in the aggregate. Food for thought. There is some possible subtlety in the decision. I suggest you take a look. I am wondering whether the court is suggesting that an arbitrator could still find that the entire contract, including the class action waiver, is unconscionable?

One might think the choice of law part of the decision would have a chilling effect on loans made to Pennsylvanians in the future, but I doubt it.

There is a limited period, ten days I suppose (but I need to check), to file for en banc review.