Wednesday, May 10, 2006

child abuse - cause of abuse - presumption

In re: D.T. - Commonwealth Court - May 9, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1602CD05_5-9-06.pdf

Request to expunge indicated report of child abuse denied.

Appellant was the paramour of the mother of an 18 month-old child who suffered 2nd degree burns on both feet, which a doctor testified were "typical immersion scald burns." The evidence showed that at the time of his injury, the child was either in the custody of his mother or her paramour, but there was no "independent substantial competent evidence" that appellant was the person that caused the burns."

The court approved DPW's reliance on 23 Pa. C.S. 6381(d) [prima facie evidence of abuse], which provides that "[e]vidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parents or other person responsible for the welfare of the child."

Citing the decision of In the Interest of J.R.W., 631 A.2d 1019 (Pa. Super. 1993), the court held that while the "existence of child abuse" had to be proven by clear and convincing evidence, proof of "the identity of the perpetrator of that abuse....need only be established by prima facie evidence that the abuse normally would not have occurred except by reason of acts or omissions of the caretakers...." (emphasis in original)

The "presumption can be rebutted, like other statutory presumptions, with countervailing competent, substantial evidence," which did not exist here. Appellant's testimony was found not credible, in part because he lied about not having a prior criminal record.

UC - willful misconduct - good cause

Docherty v. UCBR - Commonwealth Court - May 9, 2006

http://www.aopc.org/OpPosting/CWealth/out/1952CD05_5-9-06.pdf

Claimant (CL) did not commit willful misconduct where
- CL was phlebotomist in hospital
- hospital had confidentiality policy
- policy required employees to safeguard information from unauthorized viewing or listening - CL was discharged for violating the policy under the following facts:

- CL was drawing blood in a 2-patient room
- one patient was 5 year-old female
- patient's mother specifically asked CL why he was drawing blood
- the mother asked this question in the presence of patient's roommate and latter's mother.
- CL said that blood would be used for a rapid HIV and hepatitis test
- mother complained that CL vocalized a response that could be heard by others in room
- CL did not invite anyone into the room and did not respond loudly
- there is no evidence that the roommate or roommate's mother overheard CL's response

Held, claimant had good cause (a question of law) to violate the ER's rule/policy, since his actions were "justifiable and reasonable under the circumstances." Frumento, 351 A.2d 631 (Pa. 1976). Resolution of these issues requires consideration of "all of the circumstances, including the reasons for the [claimant's] noncompliance with the employer's directives." Navickas, 778 A2d 284 (Pa. 2001).

domestic - gun permit - conviction of DV crime

Wolak v. State Police - Commonwealth Court - Feb. 27, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1373CD05_5-9-06.pdf

The court affirmed the denial by state police of appellant's application for a gun permit based on sec. 922 of the Federal Gun Control Act of 1968, 18 USC 922, which precludes a person convicted of a misdemeanor crime of domestic violence from possessing a firearm.

Appellant was charged with various offenses after having discharged a shotgun in his house. His wife alleged and the criminal complaint stated that he had fired the weapon at her while she was coming up the steps.

All charges were dismissed at an MDJ hearing, except for reckless endangerment. Then pursuant to an agreement with the district attorney, all of the original charges were dropped, and appellant pleaded guilty to disorderly conduct, an misdemeanor of the third degree, 18 Pa. C.S. 5503. The record did not show what subsection of sec. 5503 was involved, and the plea colloquy did not contain any facts, but there was "nothing indicating that the underlying factual averments in the complaint and information were modified. . . only that the charge itself was changed. Thus, the averments made in support of the reckless endangerment charge became the operative averments in support of the disorderly conduct charge. The plea was made with respect to the averments in the Complaint."

The court held that appellant had committed a "misdemeanor crime of domestic violence," since (a) the crime was a misdemeanor under state law, and (b) it had as an element "the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse," 18 USC sec. 921)(a)(33)(A).

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