Wednesday, July 13, 2005

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

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