Wednesday, July 13, 2005

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

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