Friday, March 24, 2006

ADA - SSD - no estoppel

Turner v. Hershey Chocolate - 3d Cir. - March 20, 2006

http://www.ca3.uscourts.gov/opinarch/044674p.pdf

Plaintiff's Americans with Disabilities Act (ADA) claims, 42 USC 12112(a), et al., were not estopped by allegations in her SSDI and long-term disability insurance claims about her disability.

Statements in support of an SSDI claim do no take into account the concept of reasonable accommodation under the ADA and therefore do not necessarily estop a claim under the ADA that one is capable of performing the essential functions of a job, with reasonable accommodations. Cleveland v. Policy Mgmt. Systems Corp., 526 US 795 (1999)

Statements on the long-term disability insurance claim were not categorical statements of total inability to peform job funcionts, nor did they take into account plaintiff's ADA entitlement to reasonable accommodation.

custody - relocation - intrastate

Speck v. Spadafore - Superior Court - March 22, 1006

http://www.courts.state.pa.us/OpPosting/Superior/out/A05024_06.pdf

Unmarried parents had 9 y/o child. A York County order was entered giving parties shared legal custody, mother primary physical custody, and father partial custody, with almost daily contact. In 2005 mother filed a petition to modify to allow her to relocate with the child to Butler County, near Pittsburgh, in light of her impending marriage. The trial court granted mother's motion and gave father partial custody during most of the summer.

The appellate court found that the "trial court focused on Mother's personal happiness to the virtual exclusion of the other relevant facts," in spite of its finding that the current arrangement was working well for the child, including almost daily contact with the father and the fact that all extended family from both sides live in the Harrisburg area, within 10 minutes of both parties' homes.

The court said that it was "clear that the only improvement is in Mother's personal relationship" and that the "detriments were numerous and significant," including the "disruption of [the father-child] relationship" and the separation of the child from two half-siblings -- the children of father and his girlfriend, who have lived together for 6 years. Quoting Jane Austen's Mansfield Park, the court said that "children of the same family, the same blood, with the same associations and habits, have some means of enjoyment in their power, which no subsequent connections can supply....' Relocation cases have highlighted the enduring value of the maintenance of sibling relationships."

"While relocation may enhance Mother's own personal and emotional happiness and well-being, our concern must be centered upon whether the move is in the child's best interest....[T]he custody parent bears the burden of establishing a significant improvement in the quality of life for that parent and child...We can identify no significant benefits of relocation to the child in the instant case. The reality is that [the child] enjoyed a good quality of life, surrounded by loving parents, siblings, extended family, a sound school, a circle of friends, and extracurricular activities."

The only benefit identified to mother was her relationship with her new husband. This "relocation had one goal, Mother's cohabitation with the man she intended to marry...[T]hat one fact, alone, is simply not enough to require a ten year-old child to relinquish his parental and familial supports, the very relationships that will enrich and sustain him as he grows to adulthood."

The opinion contains a complete statement of its scope and standard of review, along with the factors relevant to a relocation case.

Pennsylvania Bulletin of March 25, 2006

Here's the link http://www.pabulletin.com/secure/data/vol36/36-12/index.html

Of possible interest-

- court rules - support - proposed rules
comments due May 12, 2006
http://www.pabulletin.com/secure/data/vol36/36-12/480.html

- court rules - PFA - proposed rules
comments due May 12, 2006
http://www.pabulletin.com/secure/data/vol36/36-12/479.html

- voter i.d. - Governor's veto of HB 1318
http://www.pabulletin.com/secure/data/vol36/36-12/475.html

- damages - limitation - contractors - construction defect - dwelling- AG opinion - HB 1467
http://www.pabulletin.com/secure/data/vol36/36-12/476.html

- MDJs - training and certification
http://www.pabulletin.com/secure/data/vol36/36-12/478.html

- client security fund - attorneys - discipline
http://www.pabulletin.com/secure/data/vol36/36-12/477.html

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