Wednesday, December 07, 2005

paternity - genetic testing - estoppel

Buccieri v. Campagna - Pa. Superior Court - December 7, 2005

Putative father was estopped from getting genetic paternity testing where he knew of mother's pregnancy but had no contact with child for about 8 years. In the meantime, mother had married. She and her and new husband, who wanted to adopt the child, had formed a new family unit. Mother did not desire contact from putative father (PF), but she did nothing to obstruct contact or prevent him from requesting information about her prenancy or offering to assuming a parental role. Her conduct does not constitute the kind of obstructive tactics deplored by state law. PF could easily have monitored the pregnancy and tried to establish contact, but he did nothing.

Donald Marritz
MidPenn Legal Services

custody - contempt - notice of hearing - due process

Everett v. Parker - Pa. Superior Court - December 7, 2005

Father filed contempt petition against mother alleging follow the existing custody order. Father did not serve mother with the petition or order for hearing. Rather, he mailed a copy of the petition and hearing order to a) her attorney in another case, by and b) a CYS worker who had been involved with the family.

The mother did not appear at the hearing. The attorney did not appear at the hearing. The CYS worker was present at the hearing and testified that she had given mother a copy of the petition and hearing notice the day before. The court felt this was "sufficient" service and went ahead with the hearing in mother's absence. The court found mother in contempt and transferred majority custody to father.

The appellate court held that service was improper and invalid under the relevant rules of court, Rule 1915.12(a), and due process principles. The notice to mother was "not meaningful" and violated her right to due process. The lower court's transfer of custody to father, absent proper notice to mother, was an abuse of discretion. The proper course would have been for the lower court to continue the case and direct father to make proper service, in the proper format.

Donald Marritz
MidPenn Legal Services

disability - VE hypo inadequate - remand

Baum v. Barnhart - ED Pa. - November 30, 2005

Held, the ALJ did not properly evaluate the claimant's residual functional capacity, because of improper hypothetical to the vocational expert. Claimant alleged disability based on back injury, pain, obesity, sleep disorder, depression, carpal tunnel syndrome, etc. Claimant is a younger individual with a h.s. education, prior work as carpenter in construction industry. The ALJ determined that CL could not do his former work and only a limited range of sedentary work.

Although it rejected claimant's position on other issues, the court upheld his claim about the inadequacy of the ALJ's hypo to the vocational expert, which in toto, was as follows: "I think from what the Claimant testified and what it looks like in the 1994 FCA, it looks like they thought he could do sedentary work. So why don't we assume sedentary with a sit/stand option. Are there jobs with that?"

Citing Ramirez v. Barnhart, 372 F3d 546 (3d Cir. 2004) and Chrupcala v. Heckler, 829 F.2d 1269 (3d Cir. 1987), the court said that "great specificity" was required in the hypo to the VE and that pain and other impairments, amply supported by the record, had to be figured in as well.

The court remanded the case for further proceedings pursuant to the fourth sentence of 42 USC 405(g).

Donald Marritz
MidPenn Legal Services