Pennsylvania Bulletin of July 30, 2005

Here's the link
http://www.pabulletin.com/secure/data/vol35/35-31/index.html

Of possible interest - recent statutes
http://www.pabulletin.com/secure/data/vol35/35-31/1425.html

- court rules - local rules - Phildelphia - petitions, motion, courtrooms
http://www.pabulletin.com/secure/data/vol35/35-31/1428.html

- evidence - rules of evidence - proposed revision of comment to rule 101 - scope and citation of rules
http://www.pabulletin.com/secure/data/vol35/35-31/1426.html

- health - availability of draft application- health and health services block grant
Health People 2010 Healthy Status Objective
http://www.pabulletin.com/secure/data/vol35/35-31/1445.html

- welfare - nursing facilities services - preadmission and civil rights requirements - proposed amendments
http://www.pabulletin.com/secure/data/vol35/35-31/1435.html

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

custody - jurisdiction - UCCJEA v. UCCJA

About a week ago, I posted information about O'Gwynn v. Herbert - Pa. Superior Court, June 21, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/a16005_05.pdf

The case involved a woman who filed for custody in Pa., having just moved from Louisiana to avoid abuse. The father filed for custody in Louisiana, and the court decided that the LA courts, not the PA courts, had jurisdiction. I got too lazy to analyze the case fully. Mea culpa. I mentioned that it was decided under the old UCCJA, 23 Pa. CS 5341 et seq. -- which has been replaced with the UCCJEA, 23 Pa. CS 5401 et seq. -- along with the PPKA, and questioned the current relevance of the decdision.

I've looked at the case more closely and think that the UCCJEA may entirely undermine the decision and might now direct a different result under the same facts.

In O'Gwynn, the court relied heavily on the fact under the UCCJA, harm to the child was a predicate to exercising emergency jurisdiction. The court stressed this factor (decision at 10-12) and mentioned but then ignored the fact that the mother had a PFA order in Louisiana. The abuse of the mother was not a factor in the case.

Under the UCCJEA, 23 Pa. CS 5424(a), Pennsylvania courts can exercise temporary emergency jurisdiction in a custody case if a) the child is present in Pa. and b) the child has been abandoned, or c) it is necessary in an emergency to protect the child because the child or a sibling or a parent of the child is subjected to or threatened with mistreatment or abuse." (emphasis added)

Under its express terms, the UCCJEA makes abuse of a sibling or parent of the child relevant in determining emergency custody jurisdiction.

I think that this is a significant change from the practice under the UCCJA.

Donald Marritz, staff attorney
MidPenn Legal Services
Gettysburg, Pa.

Pa. Bulletin of July 23, 2005

Here's the link to the Pennsylvania Bulletin of July 23, 2005

http://www.pabulletin.com/secure/data/vol35/35-30/index.html

Of potential interest

        -recent statutes
         http://www.pabulletin.com/secure/data/vol35/35-30/1375.html

        -more recent statutes, including amendments to Welfare Code and domestic relations statutes
        http://www.pabulletin.com/secure/data/vol35/35-30/1376.html

        N.B.  You can get statutes by act and bill # at http://www.legis.state.pa.us/cfdocs/legis/home/session.cfm
       
        -court rules - state - civil procedure - title and citation
        http://www.pabulletin.com/secure/data/vol35/35-30/1377.html

        - court rules - state - juror note-taking - rescission of rule as of 12/31/05
        http://www.pabulletin.com/secure/data/vol35/35-30/1378.html

        - court rules - local - Perry and Juniata - orphans' court
        http://www.pabulletin.com/secure/data/vol35/35-30/1381.html

        - court rules - local - Beaver County
        http://www.pabulletin.com/secure/data/vol35/35-30/1380.html

        - court rules - local - Philadelphia
        http://www.pabulletin.com/secure/data/vol35/35-30/1379.html

        - health - agreement on community health reinvestment
        http://www.pabulletin.com/secure/data/vol35/35-30/1407.html

Don

Donald Marritz, staff attorney
MidPenn Legal Services
128 Breckenridge Street
Gettysburg, Pa. 17325
tel. 717/334-7623 x2414
fax 717/334-0863
dmarritz@midpenn.org
www.midpenn.org

       

custody - jurisdiction - UCCJA

O'Gwynn v. Herbert - Pa. Superior Court, June 21, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/a16005_05.pdf

I haven't had a chance to fully analyze this case, but it involves both abuse and custody. It was decided under the old UCCJA -- which has been replaced with the UCCJEA -- along with the PPKA. So I'm not sure of its current relevance.

Donald Marritz, staff attorney
MidPenn Legal Services
Gettysburg, Pa.

UC- voluntary quit - health - reasonable accommodation

PLCB v. UCBR - No. 83 CD 2005, July 19, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/83CD05_7-19-05.pdf

Claimant (CL), a dialysis patient, became too ill to do the lifting required in his state job as a liquor store clerk.

The employer (ER) had no jobs available w/in CL's medical restrictions.

ER sent CL a letter dated June 18 that he had only one option - to resign effective June 15. The letter also said that CL could apply for other work with the state by filling out an application. CL terminated his position but did not submit the application.

Held, Genetin v. UCBR, 451 A2d 1353 (Pa. 1982) controls concerning health issues. A claimant can show necessitous and compelling reasons to quit a job for health reasons if a) there are adequate health reasons to justify a quit, b) the claimant tells the ER about the reasons, and c) the claimant is available to work if reasonable accommodations can be made.

Only the third element was at issue in this case. The ER argued that the CL did not make himself available because he didn’t fill out the application. The referee, UCBR, and court all rejected that. The Court distinguished Nolan v. UCBR, 797 A2d 1042 (Pa. Cmwlth. 2002), because in instant case, the application for employment was not proferred until after CL's employment had been terminated.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

Home Ownership and Equity Protection Act - 15 USC 1639- ED Pa. case

DISCLOSURE REQUIREMENTS — Home Ownership and Equity Protection Act — 15 U.S.C. 1639 — high cost mortgage — TITLE INSURANCE — 10 percent premium increase — not unreasonable — requirement of ownership transfer — Chapter 13 — plenary standard of review — refusal to disallow secured claim affirmed

In re Strong, No. 04-CV-4699 (June 20, 2005) — Requirement that debtor pay 10 percent more for title insurance does not render premium so high as to render it includable in title insurance premium for purposes of points and fees calculation per Home Ownership and Equity Protection Act disclosure requirements, 15 U.S.C. 1639.

Donald Marritz,
MidPenn Legal Services

Pa. Bulletin of July 16, 2005

Here's the link to the Pennsylvania Bulletin of July 16, 2005

http://www.pabulletin.com/secure/data/vol35/35-29/index.html

Items of possible interest

-- court rules - appellate rules & orphans' court rules - interlocutory orders
http://www.pabulletin.com/secure/data/vol35/35-29/1320.html

-- court rules - support
http://www.pabulletin.com/secure/data/vol35/35-29/1321.html

-- court rules - local rules - Berks County - petition/motion practice
http://www.pabulletin.com/secure/data/vol35/35-29/1324.html

-- court rules - local rules - Delaware County
withdrawal of counsel; appeals of master's report in equit. distrib.
http://www.pabulletin.com/secure/data/vol35/35-29/1325.html

-- court rules - local rules - Westmoreland County - support
http://www.pabulletin.com/secure/data/vol35/35-29/1326.html
http://www.pabulletin.com/secure/data/vol35/35-29/1327.html

-- DPW - federal poverty income guidelines for 2005
http://www.pabulletin.com/secure/data/vol35/35-29/1352.html

Donald Marritz, staff attorney
MidPenn Legal Services
Gettysburg, Pa.

admin. law - appeal - statement of reasons for credibility determinations

Our state courts have said that although agencies have to cite reasons for their decisions, 2 Pa. CS  sec.  507, that requirement is fulfilled in UC cases where credibility is at issue if the Board of Review simply says it believed one side or the other.   See Peak v., UCBR, 501 A2d 1383 (Pa. 1985), where it said that "the Board's reason for reversing the referee is plain enough. Unlike the referee, it chose to believe the employer, not the employee. It disagreed with the referee's factual resolution of conflicting evidence, a power it has under Section 504 of the statute ," 43 PS sec. 824.    Peak, 501 A2d at 1387.    

In a  fairly recent worker's comp. (WC) case, the Commonwealth Court  reached a different decision.  It held that a credibility determination was not adequate  where the fact-finder failed to "issue a reasoned decision" and to "articulate some objective basis for [its] credibility determinations."  Higgins v. WCAB, 854 A2d 1002, 1007 (Pa. Cmwlth 2004).  Instead, the WCAB "simply noted that….[the WC judge] is the ultimate arbiter of witness credibility" and had made a finding.  854 A2d at 1005.   Accord,  Daniels v. WCAB, 828 A2d 1043 (Pa. 2003)

It is true that in UC cases the UCBR is the ultimate finder of fact, while in worker's comp it is generally the referee/judge.  However, that difference should not result in different requirements for the quality of decisions in these two areas.  In both worker's compensation cases (2 Pa CS 507 and 77 PS 834 ) and UC  cases (2 Pa CS 507 ), statutes require a statement of findings and reasons.  

How that requirement is satisfied should be the same in both instances.   The reason for a credibility determination cannot simply be that the fact-finder believed one party or the other.  The fact-finder should have to "articulate some objective basis" for its decision, whether the fact-finder is the UCBR or a WC judge. 

I think that Higgins and Daniels can be used to make that argument in the appropriate UC case. 

Donald Marritz,  staff attorney
MidPenn Legal Services

DV - abuse - stalking - secret video surveillance

HES v. JCS - 815 A2d 405 (NJ 2005)

http://lawlibrary.rutgers.edu/decisions/supreme/a-132-01.opn.html

The NJ Supreme Court held that a husband's acts of installing a microphone and camera in his wife's bedroom and connecting them to a VCR in his bedroom could be harassment and stalking and a predicate offense of domestic violence.  Referring to the issue as "novel," the court held that such conduct could cause a reasonable person to fear bodily injury.

Donald Marritz, Attorney
MidPenn Legal Services
128 Breckenridge Street
Gettysburg, Pa. 17325
tel. 717/334-7623 x2414
fax 717/334-0863
dmarritz@midpenn.org

settlements - authority of counsel

In a recent case, the Pennsylvania Supreme Court held that an attorney must have express authority to bind a client to a settlement agreement, because "parties settling legal disputes forfeit substantial legal rights, and such rights should only be forfeited knowingly."


Reutzel v. Douglas, 870 A2d 787 (March 29, 2005)

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-139-2004mo.pdf
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-139-2004co.pdf - Cappy concurring
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-139-2004co2.pdf - Eakin concurring

Donald Marritz, Attorney
MidPenn Legal Services
128 Breckenridge Street
Gettysburg, Pa. 17325
tel. 717/334-7623 x2414
fax 717/334-0863
dmarritz@midpenn.org

UC appeals - petition for review - specificity

Deal v. UCBR, Commonwealth Court, June 22, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/32CD05_6-22-05.pdf

This is a disturbing and potentially problematic decision (3-judge panel), which held that the claimant/appellant's petition for review in Commonwealth Court was not sufficiently specific and did not satisfy the requirements of Appellate Rule1513(d).

The UC case involved willful misconduct.  Ultimately, the UCBR denied the claim.  Claimant's petition for review said that

        -- the UCBR was guilty of an error of law in deciding to reverse the decision of the Referee and deny benefits

        -- there is a lack of substantial evidence to support the decision of the UCBR that reverses the decision of the referee and denies benefits to the claimant.

The Court said that the statement of objections is a "notice pleading" which "must do more than simply restate" the court's scope of review, as it said the claimant's petition did. 

The court noted that every subsidiary question is deemed to be included and that Rule 1513(d) says that a petition must contain only "a general statement of the objections to the order or other determination."  Nonetheless the court said the the petition "must state its objections with 'sufficient specificity to permit the conversion of an appellate document to an original jurisdiction pleading and vice versa should such action be necessary to assure proper judicial disposition."

The court also noted that it had "declined to consider issues addressed in a claimant's brief but [which were] not [included] in his or her petition for review."

Ultimately, the court said the the petition "reveals no statement which fairly embraces the issue of willful misconduct and no statement identifying specific findings of fact that allegedly are unsupported by substantial evidence."

Rather than giving the claimant an opportunity to amend her petition for review, as a trial court might do in similar circumstances, the Commonwealth Court dismissed the case.

Donald Marritz, Attorney
MidPenn Legal Services
128 Breckenridge Street
Gettysburg, Pa. 17325
tel. 717/334-7623 x2414
fax 717/334-0863
dmarritz@midpenn.org

admin. appeals - preservation of issues

The recent Deal decision http://www.courts.state.pa.us/OpPosting/CWealth/out/32CD05_6-22-05.pdf is causing concern. The court dismissed a UC appeal because it said that the Petition for Review wasn’t specific enough in stating the claimant/appellant's objections to the decision of the UCBR.

I wanted to let people know about another recent Commonwealth Court case that we might be able to use to undercut the harsh result in Deal. The case is Devereaux Hospital v. DPW -- Commonwealth Court - July 12, 2005, http://www.courts.state.pa.us/OpPosting/CWealth/out/1058CD01_7-12-05.pdf

Devereaux isn't exactly on point, but I think that there are parallels with Deal that make the decision useful. In Devereaux, DPW argued that the petitioner had waived an issue for appellate review by not stating it specifically enough in the "statement of questions" in the brief.

Without much discussion, the court rejected the waiver argument. The court (at 4) said that although the statement did not specifically reference a particular issue involved in the case, the statement did "question DPW's denial" and that the "general question suggests a challenge to any reason DPW might offer for the denial…." (emphasis in original)

There are a lot of grounds on which to attack and disagree with Deal. Maybe Devereaux can help advocates avoid a bad Deal.

Donald Marritz, Attorney
MidPenn Legal Services
128 Breckenridge Street
Gettysburg, Pa. 17325
tel. 717/334-7623 x2414
fax 717/334-0863
dmarritz@midpenn.org

Contempt of Court

There is an extensive discussion of

-- civil v. criminal contempt, and
-- indirect v. direct criminal contempt

in Commonwealth v. McMullen -- Pa. Superior Court July 6, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/s17002_05.pdf

Donald Marritz
MidPenn Legal Services

Consumer protection - Insurance - "churning" scheme - damages - attorney fees

Agliori, Executrix v. Metropolitan Life Insurance - Pa. Superior Court, July 8, 2005 http://www.courts.state.pa.us/OpPosting/Superior/out/A15045_05.pdf

Held, appellant's decedent suffered ascertainable loss under consumer protection law, even though he got what he paid for under one insurance policy. Agent lied to him and failed to present full facts, so decedent was not able to make informed decision. Agent convinced decedent to replace existing insurance policies with a new one (churning), so agent could get higher commissions and admin. fees, without full notificationof negative aspect of such transactions.

Court stressed "deterrence function of the statute" and that it should be liberally construed to effect its remedial goals of eradicating and protecting the public from unfair or deceptive business practices. Determination of damages should be decided in that context.

Attorney fees disallowed for work done prior to statutory amendment allowing such fees.

Don Marritz
MidPenn Legal Services

Dependency - Appeal of Family Service Plan

Sanner v. DPW - Commonwealth Court - July 6, 2005 http://www.courts.state.pa.us/OpPosting/CWealth/out/1037CD04_7-6-05.pdf

In dependency case, lower court entered an order approving a family service plan (FSP) recommended by country child welfare agency.

Appellant/mother was dissatisfied with some aspects of court-mandated plan but never challenged the court order, by appeal or otherwise. Rather, mother filed an appeal of the plan with DPW.

Held, appeals of FSPs to DPW are limited to the grounds set out in 55 Pa. Code sec. 3130.62(a)(1) and (2).

• denial, reduction, discontinuance, suspension or termination of service
• county agency failure to act on request for service w/reasonable promptness Here, mother's appeal challenged substantive aspects of the FSP. Such an appeal is not reviewable by DPW but must be challenged by an appeal of the court order approving and mandating the FSP.

Donald Marritz, MidPenn Legal Services

LII - Supreme Court 2004-2005 Term Highlights

LII - Supreme Court 2004-2005 Term Highlights

"Highlights of the 2004-05 Supreme Court Term" has been published on the Legal Information Institute website maintained by the Cornell Law School. It is available at the link above.

Pa. Bulletin of July 2, 2005

here's the link
http://www.pabulletin.com/secure/data/vol35/35-27/index.html

of possible interest

- recent statutes - including limits on employer liability, omnibus UC amendments
http://www.pabulletin.com/secure/data/vol35/35-27/1257.html

- education - No Child Left Behind Act - compliance - bridge certification
http://www.pabulletin.com/secure/data/vol35/35-27/1262.html

- welfare - supervision of children in child day care facilities
http://www.pabulletin.com/secure/data/vol35/35-27/1263.html

- welfare - income limits - MA - categorically needs NMP program
http://www.pabulletin.com/secure/data/vol35/35-27/1270.html

- governor - regulatory agenda
http://www.pabulletin.com/secure/data/vol35/35-27/1274.html

- housing - PHFA - request for strategic planning consulting services
http://www.pabulletin.com/secure/data/vol35/35-27/1276.html

- Independnet Regulatory Review Commission - notice of comments issued
http://www.pabulletin.com/secure/data/vol35/35-27/1277.html


Donald Marritz, Attorney
MidPenn Legal Services