Pennsylvania Bulletin of October 1, 2005

Here is the link to the Pennsylvania Bulletin of October 1, 2005
http://www.pabulletin.com/secure/data/vol35/35-40/index.html
Items of potential interest include:

- court rules - proposed - dom. rel. - conferences, service of process, masters reports, etc.
http://www.pabulletin.com/secure/data/vol35/35-40/1815.html

- court rules - local - Schuylkill County - divorce masters
http://www.pabulletin.com/secure/data/vol35/35-40/1816.html

- attorneys - attorneys displaced by Hurricane Katrina - practice in Pa.
http://www.pabulletin.com/secure/data/vol35/35-40/1817.html

- community & econ. development - grants to local governments to promote community and/or economic development
http://www.pabulletin.com/secure/data/vol35/35-40/1821.html

- community & econ. development - urban development program - guidelines
http://www.pabulletin.com/secure/data/vol35/35-40/1822.html

- education - approval of PSSA performance level descriptors and performance level scores
http://www.pabulletin.com/secure/data/vol35/35-40/1844.html

N.B. -- You can access the entire issue any Pa. Bulletin in PDF form by clicking on the "entire bulletin" PDF link at the bottom of the index page for that issue

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

drivers licence - incompetency - medical evidence v. lay evidence

Byler v. DOT, Bureau of Driver Licensing - Commonwealth Court - September 27, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/615CD05_9-27-05.pdf

Commonwealth Court affirmed the trial court's decision, sustaining petitioner's appeal from DOT's proposal to suspend his license for medical reasons. DOT's proposed suspension was based on a letter from petitioner's doctor, which stated in its entirety: "Mr. Byler is a 79 year old white male.  He's an alcoholic and should not be driving a car.  He has significant alcoholic cerebellar degeneration." 

A person can be disqualified from driving if, in the opinion of a health care provider, a person's alcoholism is likely to impair his ability to control and safely operate a motor vehicle.   DOT has the initial burden of showing this by a preponderance of the evidence.  The driver can then rebut DOT's evidence, in which case DOT may be required to present additional evidence to satisfy its ultimate burden of proof.

Here, the trial court determined that DOT's initial burden was satisfied by the doctor's two sentence letter.  The appellate court did not really address that troublesome issue.  At any rate, the driver testified himself and also presented the testimony of his neighbor, both to the effect that although he did drink sometimes, he drank modestly, he never drove after drinking alcohol, never visited bars, and never drank outside the home.  DOT did not present any evidence other than the doctor's letter.

Both the trial court and appellate court found that the lay testimony presented by the driver was sufficient to rebut that of the doctor and called into question the credibility of DOT's evidence.  Because DOT presented no further evidence, the courts determined that DOT did not sustain its burden of showing that drinking was likely to impair the licensee's ability to drive.  

The Court rejected DOT's argument that only medical evidence could rebut medical evidence. "[N]othing in the applicable statutory or regulatory provisions or in the case precedents….requires that only medical evidence may be presented by the licensee to rebut a prima facie case of the licensee's incompetency based on a medical provider's report….It was within the trial court's discretion…. to determine that [the licensee] was not incompetent and that the testimony of  [the licensee and his neighbor] was more persuasive and credible that the evidence presented by DOT."

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

disability - ALJ failure to follow remand instructions

Lok v. Barnhart - ED Pa. - September 19, 2005

 

http://www.paed.uscourts.gov/documents/opinions/05D1153P.pdf
 

Plaintiff is 55 year-old woman w/chronic back pain and some mental impairments, unable to speak English, and whose prior work was as a dishwasher.

 

Plaintiff appealed an adverse ALJ decision to the Appeals Council (AC), which remanded the case to the ALJ after finding that there was not substantial evidence to support the ALJ's decision that the Plaintiff was not disabled.  The remand order directed the ALJ to "obtain additional, updated evidence" and to recontact the treating physician for additional evidence and clarification of his opinion about disability.  On remand, the ALJ was unable to get information from the treating physician, who was uncooperative.  The ALJ did not seek any consultative exams.

 

Plaintiff appealed second adverse ALJ decision, which AC this time affirmed.  The Court reversed and remanded.  It found that "the ALJ's procedures were not consistent with the remand order" and that the ALJ's findings were not based on substantial evidence.

 

The Court held that, under the circumstances, SSA regs and the specific AC remand order required the ALJ to "seek the necessary information from alternative sources", i.e., consultative physicians.  "The ALJ's task was to secure new believable evidence."  The Court remanded the case, holding that the record "does not necessarily show Plaintiff is disabled, and reversal is not warranted."

 

Donald Marritz, staff attorney

MidPenn Legal Services- Gettysburg

IRS - innocent spouse tax relief

In some circumstances, the IRS will forgive a innocent spouse's tax liability, if it is inequitable to hold him/her liable. Some of the factors considered include:

• The taxes owed are your spouse's or ex-spouse's.
• You are no longer married to that spouse.
• You thought your spouse would pay the taxes on the original return.
• You didn't know about the items changed in the audit.
• You would suffer a financial hardship if you were required to pay the tax. You would not be able to pay for basic living expenses like food, shelter, and clothing.
• You did not significantly benefit (above normal support) from the unpaid taxes.
• You suffered abuse during your marriage.

More info is available at the web sites below……….

http://www.irs.gov/individuals/article/0,,id=96786,00.html

http://www.irs.gov/individuals/content/0,,id=130302,00.html

disability - medical criteria - change during pendency of case

Cliggett v. Barnhart -  ED Pa. - September 20, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1150P.pdf

Claimant suffered several spinal-related severe impairments, including epidural fibrosis.  In court, claimant alleged that she met new Listing 1.08, which was promulgated during the course of the case, more than one and one-half years after the ALJ decision, but before the Appeals Council decision.

The court cited an SSA statement about a different rule change, in which it said that "as is our usual practice when we make changes to our regulations, we will apply these final rules to the claims of applicants for benefits that are pending at any stage of our administrative process."   The court also cited an unreported 3d Circuit case holding that "[i[f it is determined that the new regulations is more favorable to the claimant that the original version, she should be entitled to rely on the more expansive construction."  Coppola v. Barnhart, 99 Fed. Appx. 365, 2004 WL 1088368 (2004), noting that while not precedential, the court "finds it instructive." 

The court noted that new Listing 1.08 had been adopted at the time of Appeals Council review and summarized by saying that "when final changes to Social Security regulations are made, the new regulations should be applied to claims of applicants for benefits that are pending at any stage of the administrative review process.  If a new regulation is more favorable to a claimant than the original version, the claimant should be entitled to rely on the new regulation."

The court remanded that case "so as to give the Commissioner an opportunity to set forth her position on the applicability of Listing 1.08 to epidural fibrosis."

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

UC- vol. quit - retirement - speculation

Petrill v. UCBR - Commonwealth Court - September 20, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/1002CD05_9-20-05.pdf
Commonwealth Court affirmed denial of benefits by UCBR.

Claimant (CL) had worked for employer (ER) for 38 years.  He was on voluntary layoff for 3 weeks in August.  The contract between the ER and the union, of which CL was a member, had expired in July.  As of the date of the referee hearing, contract negotiations were ongoing. 

CL decided to retire while on voluntary layoff.  Continuing work was available to him.  His main reason for the VQ was his belief that  it would be advantageous to him, especially with respect to continuing health care benefits.  This was based on his belief about how the new contract, once completed, would affect those benefits.

Each VQ cases is examined on an individual basis.  In order to get UC benefits on voluntarily retiring, a claimant just proved the he acted with ordinary common sense in retiring and made reasonable efforts to preserve the employment relationship.  The court said that "[w]hile we sympathize with [CL's] feelings of uncertainty, and the predicament that he believed himself to be in, the fact is that he chose to retired base on speculation rather than on what he actually knew to be true.  The law is settled that 'the potential curtailment of medical benefits during the negotiation  for a new [contract] does not meet the 'necessitous and compelling' standard under section 401(b) of the Law. (citing cases).  Essentially, the law is that mere speculation about one's future job circumstances, and attendant benefits, without more, does not render a decision to voluntarily terminate employment necessitous and compelling."

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

employment - race/age discrim. - union duty of fair representation

Wilkins v. ABF Freight Systems, Inc. - ED Pa. September 15, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1142P.pdf

Seventy year-old African-American man, a former truck driver, brought various claims against his former corporate employer and individual supervisors. One supervisor made overt racial slurs. The next supervisor did as well. They also denied him the chance to earn overtime and encouraged him to retire. After going through the required administrative process, plaintiff sued in federal court. Defendants moved to dismiss most claims.

individual liability - Claims against the supervisors in their individual capacities were dismissed. Neither Title VII, 42 USC 2000e-1 et seq., nor the Age Discrimination in Employment Act (ADEA), 29 USC 621 et seq., provides for individual liability, as plaintiff ultimately conceded.

racial discrimination - Some of plaintiff's claims were found to be untimely under the 300-day administrative filing requirement. Plaintiff's claim of continuing violations was rejected, because the acts of the supervisors did not appear to be part of the company's standard operating procedures, but rather separate courses of action of two men, each not responsible for the conduct of the other.

age discrimination - Defendants challenged plaintiff's claim that he was constructively discharged due to numerous instances of age discrimination -- denying him overtime and giving it to younger drivers. The standard for such a claim is an objective one, requiring a finding that an employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign. Held, Plaintiff's allegations, e.g., that supervisor often suggested that he retire sufficiently pleaded facts sufficient to support this claim

administrative exhaustion -- Defendants claimed that plaintiff did not allege all of the same facts in the admin. process that he alleged in court. The court rejected this, holding that the relevant inquiry on exhaustion is whether the acts alleged in the subsequent suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom. The plaintiff is not required to specifically plead each instance of discrimination to meet the exhaustion requirement. The allegations need only put the agency on notice that he was alleging both race and age discrimination.

breach of duty of fair representation by union - Plaintiff made only conclusory statements that the union breached its duty of fair representation in his case. The court said that would not suffice. The union has broad discretion about whether and how to pursue an employee's grievance against an employer. The employee must prove that the union's failure to pursue his grievance was arbitrary and so far outside a wide range of reasonableness as to be irrational.

intentional infliction of emotional distress - The court rejected the argument that the racial slurs --both supervisors calling him nigger -- supported a claim for intentional infliction of emotional distress under state tort law. The court said that the slurs were not so outrageous, so extreme, as to go beyond all possible bounds of decency... atrocious, and utterly intolerable in a civilized society....the most egregious conduct. Such a finding is "extremely rare." The court said that these comments were inappropriate and unacceptable but not the kind of "utterly deplorable actions cognizable under Pennsylvania law." In addition, the court held that such claims must be brought under the state workmen's compensation law, which provides the sole remedy for injuries allegedly sustained during the course of employment.


Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

SSI - treating M.D. - credibility - subjective complaints - duty of ALJ to develop record

Rodriguez v. Barnhart - ED Pa. - September ___ 2005

 

http://www.paed.uscourts.gov/documents/opinions/05D1138P.pdf

 

Summary judgment for SSA.  Claimant alleged disability based on "depression and bad nerves." 

 

Many instances of inconsistency between psychotherapy evidence and psychiatric evidence.  Court upheld ALJ's decision to give little weight to opinion of treating physician (TP), because it was not supported by objective clinical, diagnostic or laboratory findings, but rather by the allegations of the claimant herself.  The TP's opinion was of limited value because it largely relied only on claimant's subjective symptoms, rather than objective evidence, such as a treatment regimen. 

 

The court also upheld the ALJ's assessment of the claimant's allegations as exaggerated and her credibility as only fair, primarily because activities of daily living -- including being primary caretaker for 6 children --  were inconsistent with her claims of the extent of her disability.   The evidence also showed a "stable psychiatric condition."  Credibility was evaluated under 20 CFR 4161.929 (b), (c) and (e)

 

The court rejected the argument that, if the treating physician's opinion was inadequate, the ALJ should have sought more information from the TP.  The "ALJ correctly found that there was sufficient evidence in the record to reach a disability determination, which satisfied his duty under the regulations,"  20 CFR 416.912(e).

 

 

Donald Marritz, staff attorney

MidPenn Legal Services - Gettysburg

age/disability discrimination - state employer - 11th amendment

Bullock v. Pa. Human Relations Commission -- ED Pa. Septemb er 14, 2005

 

http://www.paed.uscourts.gov/documents/opinions/05D1133P.pdf

 

Plaintiff's pro se age (ADEA, 29 USC 621 et seq) and disability discrimination (ADA, 42 USC 12101 et seq.) suit in federal court against her former employer, a state agency, dismissed on 11th Amendment grounds.

 

Congress has not abrogated state immunity under either the ADEA or ADA, and Pennsylvania has not consented to be sued under the ADEA or the ADA. Board of Trustees v. Garrett, 531 US 356 (2001); Kimmel v. Board of Regents, 528 US 62, 91 (2000).

 

The Commonwealth has waived its immunity for suits in state court for age/disability discrimination under the Pa. Human Relations Act, but it has specifically retained its 11th Amendment immunity for suits in federal court. Dennison v. Dept. of Corrections, 268 F.Supp2d 387, 405 (MD Pa. 2003)

 

Donald Marritz, staff attorney

MidPenn Legal Services- Gettysburg

custody - international - Hague Convention

Baxter v. Baxter, Third Circuit Court of Appeals, September 15, 2005
http://www.ca3.uscourts.gov/opinarch/043228p.pdf

District Court's denial of father's petition for return of child to Australia from the the US reversed by 3d Circuit. Father consented to child's initial removal to the U.S. with the mother, but not the child's retention here. Case remanded for the entry of an order granting the petition for return of the child to the country of habitual residence, Australia.

jurisdiction
The Distict Court had jurisdiction under 28 USC 1331, since the action arose under the Hague Convention on the Civil Aspect of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501, and its implementing legislation, the International Child Abduction Remedies Act, 42 USC 11601 et seq (ICARA). Under the ICARA, state and federal courts have concurrent original jurisdiction over actions arising under the Hague Convention.

Hague Convention (HC)
The HC has two main purposes
1) to secure the prompt return of children wrongfully removed to or retained in any contracting State, and
2) to ensure that rights of cutsody and access under the law of one contracting State are effectively respected.

The Convention's procedures are designed to restore the status quo prior to any wrongful removal or retention of a child, and to deter parents from engaging in international forum shopping in custody cases. The Convention is not designed to settle international custody disputes, but rather to ensure that cases are heard in the proper court.

To get an order for a child's return, the petitioner has the burden of proving by a preponderance of the evidence that the removal or retention was wrongful under the HC. A removal or retention is "wrongful" where a) it is in breach of rights of custody under the law of the state in which the child was habitually resident immediately before the removal/retention, and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

If the court finds a wrongful removal or retention, the burden shifts to the respondent, who must then prove an affirmative defense of a) consent or acquiescence to the removal or retention, by a preponderance of the evidence, or b) the defense of a "grave risk of harm" to the child, by clear and convincing evidence. Both of these affirmative defenses are narrowly construed, and even a finding of an exception does not automatically preclude an order of return. If a petitioner prevails, the HC requires courts to " 'order the return of the child forthwith.' "

discussion
The evidence was clear that father's consent for mother and child to come to the US was conditional and that he did not acquiesce in the child remaining in the US. Acquiescense depends of the parent's subjective intent. There was no settled purpose to leave Australia permanently and no acquiescense, as evidenced by the District Court's own conclusions that a) Australia remained the country of habitual residence at the time of removal, b) the parents were undecided about their next residence, and c) father's prompt contest of mother's decision to remain in the US and move in with a new male partner whom she had known for only a short time.

There was no "grave risk of harm" to the child if he was returned to the father in Australia. Such harm must involve a real risk of being hurt, physically or psychologically, as a result of repatriation, and not just inconvenience or hardship, the elimination of education opportunities, or the child's preferences.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

Pennsylvania Bulletin of September 17, 2005

Here is the link to the Pennsylvania Bulletin of September 17, 2005

http://www.pabulletin.com/secure/data/vol35/35-38/index.html

Items of potential interest include

        - court records - public access - notice of proposed policy - electronic case records in unified judicial system

        N.B. comments due no later than November 17, 2005
        http://www.pabulletin.com/secure/data/vol35/35-38/1709.html

        - courts - Pa. Supreme Court - internal procedures - decisional procedures
        http://www.pabulletin.com/secure/data/vol35/35-38/1705.html

        - courts - costs and fees
        http://www.pabulletin.com/secure/data/vol35/35-38/1703.html

        - court rules - local rules - Berks County - papers presented by 3d parties
        http://www.pabulletin.com/secure/data/vol35/35-38/1706.html

        - court rules - local rules - Fayette County - motion for post-trial relief
        http://www.pabulletin.com/secure/data/vol35/35-38/1707.html

        - court rules - local rules - Monroe County - security police, school police, private detectives
        http://www.pabulletin.com/secure/data/vol35/35-38/1708.html

        - health - child immunization practices
        http://www.pabulletin.com/secure/data/vol35/35-38/1727.html

        - welfare - MA - day-of-care definition
        http://www.pabulletin.com/secure/data/vol35/35-38/1711.html

        - Hurricane Katrina - Governor's proclamation of emergency to receive mutual aid , receive and house evacuees
        http://www.pabulletin.com/secure/data/vol35/35-38/1702.html

        - Indpt. Regulatory Review Commission - notice of comments issued
        http://www.pabulletin.com/secure/data/vol35/35-38/1746.html

        - Indpt. Regulatory Review Commission - notice of final rulemaking
        http://www.pabulletin.com/secure/data/vol35/35-38/1747.html

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

employment - age discrimination - reduction in force

Houser v. Carpenter Technology Corp. - ED Pa. Sept. 12, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1125P.pdf

Claims under Age Discrimination in Employment Act (ADEA) and Pa. Human Relations Act dismissed on summary judgment.

Plaintiff lost his job when employer initiated a reduction in force (RIF). Plaintiff made out a prima facie case of discrimination by showing that a) he was a member of the protected class, b) he was qualified for the job in question, c) he suffered an adverse employment action, and d) circumstances existed which gave rise to an inference of unlawful discrimination. Since this was a reduction in force case, he also had to and did show that the employer retained a sufficiently younger similarly situated employee.

However, the court held that the employer had articulated a legitimate nondiscriminatory reason (NDR) for the adverse employment action, thus shifting the burden back to the plaintiff to show that such NDR was only a pretext for discrimination.

The court held that the plaintiff failed to successfully refute the employer's asserted legitimate NDR for his dismissal. Plaintiff's primary argument was that the employer had used to wrong criteria for its decision and that it had made a wrong decision. The court rejected this reasoning based on other cases holding that " 'to discredit the employer's proffered reasons....the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute as issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent,or competent.' " Instead, the plaintiff would have had to show "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence" and that its reasons were pretextual.

The plaintiff did not do that. Nor did the plaintiff show that the in the RIF as a whole, older workers were affected more than younger employees.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

disability - treating physicians' opinions - GAF - credibility - etc.

Burley v. Barnhart - ED Pa. September 9, 2005 - diability claim based on mental disorders denied

http://www.paed.uscourts.gov/documents/opinions/05D1124P.pdf

Opinions of treating professionals - The ALJ accepted the opinions of consultative physicians and medical expert over that of a treating physician and a treating therapist with an M.Ed., not medical degree, and "appropriately explained his reasons for" doing so, including "several specific and substantial justifications for his decision."   The court set out a decent synopsis of Third Circuit law about effect of findings and opinions of treating physician.

Rejectionf of GAF assessment - The court accepted the medical expert's statement that "GAF scores are unreliable, non scientific assessments of overall mental functioning reflecting [claimant's[ symptoms rather than his functioning capacity," citing Howard v. Commissioner, 276 F.3d 234, 241 (6th Cir. 2002) (ALJ's failure to reference GAF score in the RFC does not, standing alone, make the RFC inaccurate.)

credibility -- The court said that "adverse credbility findings are afforded substantial deference so long as the findings are supported by specific cogent reasons.  The reasons must be substantial and bear a legitimate nexus to the finding."

Overall, the court acklowledged that a different conclusion could have been reached on the record, but that the ALJ's decision was supposted by the required substantial evidence.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

custody - relocation - right to travel

In re Marriage of Ciesluk, 113 P.3d 135 (Colorado 2005)
http://www.cobar.org/opinions/opinion.cfm?OpinionID=5167

This is a Colorado case, but it is interesting for its discussion of the effect of a parent's consitutional right to travel (see e.g. Shapiro v. Thompson, 394 U.S. 618 (1969)) in a relocation case in relation to other important factors -- a parent's right to the care and control of her/his children (Troxel v. Granville, 530 U.S. 57 (2000)), and the best interest of the children.

The court discussed the approaches of three other states. Wyoming gives priority to the right to travel, Watt v. Watt, 971 P.2d 608 (Wyo. 1999). Minnesota holds that because the best interest of the child is a compelling state interest, there is no need to balance the competing rights of the parents set out in Shapiro and Troxel. LaChapelle v. Mitten, 607 N.W.2d 151 (Minn. Ct.App. 2000). New Mexico courts say that the interests of the parents and children are best protected through an equal sharing of burdens, Jaramillo v. Jaramillo, 8213 P.2d 299 (N.M. 1991), also adopted by Maryland, Braun v. Headley, 750 A.2d 624 (Md. Ct. App. 2000). The Colorado court chose to apply the New Mexico/Maryland standard, which it found to be most consistent with the detailed Colorado statute governing relocation cases.

Donald Marritz, staff attorney
MidPenn Legal Services-Gettysburg

civil rights - domestic violence - sec. 1983 suit v. police

Starr v. Price - ED Pa. - Sept. 8, 2005
http://www.pamd.uscourts.gov/opinions/munley/03v636.pdf

Estate of deceased victim of domestic violence sued various law enforcement officials for violations of deceased's constitutional rights involving the return of a firearm to deceased's husband, who subequently killed her and others.

Summary judgment granted to defendants based on analysis in Town of Castle Rock v. Gonzalez, 125 S.Ct. 2796 (2005). Claims for violations of substantive due process, procedural due process, and Brady Claim all denied.

"Section 1983 is not a 'font of tort law…but it does not mean that State are powerless to provide victims with personally enforceable remedies….Thus Plaintiff has no section 1983 remedy for her claims, although she may have an enforceable state law remedy. Absent a pendent federal claim, however, we have no jurisdiction over the state law claims."

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

foster parents are not state actors under 42 USC sec. 1983 - 3d Cir. case

Leshko v. Servis - 3d Circuit Court of Appeals, September 9, 2005

http://www.ca3.uscourts.gov/opinarch/042610p.pdf

Held, foster parents are not state actors for purposes of liability under 42 USC sec. 1983.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

child abuse - corporal punishment - criminal negligence standard applied

W.S. Dept. of Public Welfare - Commonwealth Court, September 9, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/214CD05_9-9-05.pdf

The Court reversed DPW's finding that father had abused his daughter, as abuse is defined in the Child Protective Services Law, 23 Pa. C.S. 6301 et seq. Under the CPSL, child abuse is "any recent act or failure to act…which causes nonaccidental serious physical injury to a child under 18 years of age," 23 Pa. C.S. 6303(b)(1)(i). "Serious physical injury" is defined as an injury that "causes a child severe pain" or "significantly impairs a child's functioning, either temporarily or permanently.," 23 Pa. C.S. 6303(a)

Father hit his 14 y/o daughter on the ear with an open hand 2-3 times when she lied to him about where she had been and her report card. When she fell to the floor, he hit her again. The findings were undisputed, and DPW found both parent and child to be credible. Father had not hit the daughter before. The daughter testified that she did not complain about her ear hurting, didn’t take aspirin or anything else for pain, went to school the next day and had no problem hearing her teachers, and that she is not afraid of her father. Father was "frustrated because of his daughter's continuous misconduct and, in disciplining her, did not intend to inflict injury." The record showed and the court emphasized continuing disciplinary problems with the daughter.

Citing P.R. v. DPW, 801 A.2d 478 (Pa. 2002), the Court said that the case presented "competing objectives" which involved balancing a parent's right to discipline a child, including by corporal punishment, with the duty under the CPLS to protect children. The P.R. case established a criminal negligence standard in parental corporal punishment cases. Under that standard, there is no abuse, under the CPSL, unless there has been as "gross deviation from the standard of care that a reasonable person would observe in the actor's situation."

The Court said that the "evidence…reveals that [father] slapped [his daughter] two to three times with an open hand, after numerous attempts to discipline her without resorting to physical contact. Although the slapping resulted in a temporary loss of hearing, [father's] conduct did not rise to the level of criminal negligence and cannot be viewed as a gross deviation from the standard of care a reasonable parent would observe in the same situation….[The father] maintained self-control by walking away from the situation after he made physical contact with her the second or third time. The fact that [the daughter] experienced a temporary hearing loss does not allow us to presuppose an unjustificable risk that would lead to the finding of criminal negligence. The injury [the daughter] received as a result of corporal punishment was an accident, and a 'regrettable result of corporal punishment' rather than abuse."

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

Pennsylvania Bulletin for September 10, 2005

Here is the link to the Pennsylvania Bulletin for September 10, 2005

http://www.pabulletin.com/secure/data/vol35/35-37/index.html

Items of potential interest include -

        - welfare - energy assistance - LIHEAP plan for 2006
        http://www.pabulletin.com/secure/data/vol35/35-37/1682.html

        - welfare - MA - fee schedule revisions - 2005 HCPCS updates - prior authorization requirements
        http://www.pabulletin.com/secure/data/vol35/35-37/1683.html

        - Indpt. Regulatory Review Commission (IRRC) - actions taken by IRRC
        http://www.pabulletin.com/secure/data/vol35/35-37/1688.html

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

civil rights - forcible removal and medical exam of children

Adkins v. Luzerne County Child & Youth Services - MD Pa. September 2, 2005
http://www.pamd.uscourts.gov/opinions/vanaskie/01v470.pdf

Held that, under the circumstances, there were no civil rights violations when county CYS forcibly removed plaintiff's children from the home and subjected them to medical examinations. Summary judgment for defendants.

The circumstances were -- Plaintiff's first wife had died of "presumed natural causes" at age 40. His second wife died at age 30 from undetermined causes. A confidential informant told police that a) Plaintiff 4 y/o daughter had told her that Plaintiff's new girlfriend had said the she (the daughter) was going to heaven very soon to join her mother, and that b) the daughter had been sick several times recently but had not received proper medical attention. The children were taken into custody on March 18, examined and found to be in good health, then released back to Plaintiff on March 22. There was never any search warrant issued, nor any juvenile protective custody hearing.

substantive due process - The court recognized that Plaintiff had a fundamental substantive DP interest in the care, custody and management of his children. However, the court applied a "shock the conscience" test and said that CYS had " 'reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse.' " The court said that CYS had reasonable grounds to believe that the children were in imminent danger of harm, and that the agency action had not been "' so ill-conceived or malicious that it 'shocks the conscience'….In the context of the removal of a child from the parent's home, the social worker's conduct 'must exceed both negligence and deliberate indifference, and reach a level of gross negligence or arbitrariness that indeed shocks the conscience.

unreasonable search and seizure - Defendants conceded that their taking the children had been a seizure, but the court held that that it had been reasonable under the circumstances, given the potential emergency nature of the case. The court also sustained the taking of bodily fluids from the children, under the analysis of Vernonia School District v. Action, 515 U.S. 646 (1995).

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

consumer protection - atty. fees - additional damages - etc.

Neal v. Bavarian Motors, et al. - Pa. Superior Court, September 2, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/a10022_05.pdf

Plaintiff sued car dealer, finance company, etc, for damages she suffered as a result of defendants' having sold, financed, etc. a stolen car, which Plaintiff lost when it was impounded by the police.

Plaintiff was awarded actual damages, as well as treble damages and attorney fees under the state consumer protection law (CPL), 73 PS sec. 201-9.2, as well as damages under the UCC and the Motor Vehicle Sales Finance Act, and costs. Defendants appealed.

attorney fees - The majority reduced the award of attorney fees under the CPL. It "eliminate[d] from the award of attorney fees the efforts of counsel to recover on non-CPL theories....[A]bsent special circumstances, to permit plaintiff to recover counsel fees for all of the counts upon which she recovered damages would not only be inequitable, but would be contrary to the law.....'[A]n effort should be made to apportion the time spent by counsel on the distinct causes of action.'"

The concurring judge said that "determining the amount of CPL-related attorney fees is very fact-specific and should be assessed on a case-by-case basis." He said that "apportioning CPL-related damages 'may prove difficult given that these claims are based on a common core of facts and related legal theories,'" and noted that in other CPL cases, the court had refused to award attorney fees based on the % of CPL damages as distinguished from the total damage award. He said that it "may be inherently difficult to separate attorney fees based on a strict percentage" because some research "supported multiple legal theories."

treble damages and costs - The court said that "any violation of the CPL empowers the trial judge to consider the additional remedies provided thereunder...." such as treble damages. (emphasis added) In this case, the court found the appellants' conduct "egregious and their liability clear" and upheld the lower court.

joint and several liability - The court noted that Pennsylvania has adopted sec. 879 of the Restatement (2d) of Torts on this issue, holding that "if the tortious conduct of each of two or more persons is a legal cause of harm that cannot be apportioned, each is subject to liability for the entire harm, irrespective of whether their conduct is concurring or consecutive." An arbitrary apportionment should not be made where there is no rational, logical or practical basis to divide the harm caused by multiple defendants.

remittitur - The court upheld the trial court's refusal to grant a larger remittitur, summarizing Pa. law as follows -- A remittitur should fix the highest amount any jury could properly award, giving due weight to all evidence offered. The question is whether the award falls within the uncertain limits of fair and reasonable compensation, or whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejduce, mistake, or corruption.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburgwww.midpenn.org

age discrimination - statute of limitations, tolling - etc.

Holocheck v. Luzerne County Head Start, M.D Pa., August 30, 2005
http://www.pamd.uscourts.gov/opinions/vanaskie/04v2082.pdf

Defendant moved to dismiss Age Discrimination complaint which alleged federal and state causes of action.

         tolling statute of limitations - 180-day limit on bringing an age discrimination claim can be tolled where the employer fails  to post required notice of employee rights.  Failure to post the notice means that the employee was "prevented from     asserting her rights…."

        - individual liability - federal statute, ADEA, 29 USC 63 et seq -- federal claims against invidivuals supervisors dismissed --

        "…courts in this and other circuits continue to reject the notion that individuals may be held liable under the ADEA

 
        - individual liability - state statute - PHRA - 43 Pa. CS 955 "contemplates individual liability…Supervisory    employees…may be held liable…on the theory that only supervisors can share the discriminatory purpose and intent of the         employer that is required for aiding and abetting."  Thus, motion to dismiss this claim denied.

        - Sec. 1983 - personnel manual, federal regulations - Section 1983 claims dismissed.  Held, personnel manual did not    create an enforceable property interest under state law, where there was no state enabling legislation that gave local  government the right to employ people on other than an at-will basis.  Similarly,  a "federal regulation  alone may not create  a right enforceable through section 1983 not already found in the enforcing statute…'a regulation may invoke a private right    of action that Congress through statutory text created, but it may not create a right that Congress has not…[R]egulations       give rise to a right of action [under sec. 1983] only insofar as they constue a personal right that a statute creates,'" citing         Three Rivers Center for Indpt. Living vf. Housing Authority, 382 F.3d 412, 424 (3d Cir. 2004).

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

Pennsylvania Bulletin of September 3, 2005

Here is the link to the Pennsylvania Bulletin of September 3, 2005

http://www.pabulletin.com/secure/data/vol35/35-36/index.html

Items of potential interest include:

        - court rules - Pa. RCP 76 - definitions - signature - computer-generated signatures
        http://www.pabulletin.com/secure/data/vol35/35-36/1631.html

        - court rules - local - Northumberland Co. - family transition program - custody conflict resolution program
        http://www.pabulletin.com/secure/data/vol35/35-36/1633.html

        - health  -HIV community prevention planning committee - public meeting
        http://www.pabulletin.com/secure/data/vol35/35-36/1646.html

        - welfare - NOTICE - diversion program
        http://www.pabulletin.com/secure/data/vol35/35-36/1647.html

DPW "intents [sic] to amend the...TANF (42 U.S.C.A. §§ 601--619) State Plan. The proposed amendment will permit individuals or families who otherwise qualify for TANF cash assistance to receive a nonassistance diversion payment as an alternative to receiving ongoing cash assistance."

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg