Friday, May 26, 2006

UC- strike v. lockout

Presbyterian Senior Care v. UCBR - Commonwealth Court - May 23, 2006

The court reversed a UCBR decision that a strike had become a lockout, noting (a) the absence of a "critical finding" that the union was willing to return to the status quo and (b) the union's failure to satisfy the "futility doctrine" -- that an offer by the union to return to work would definitely not have been accepted by management.

admin. law - exhaustion of admin. remedies

Northern Area Personal Care Home Admin. Assn. v. DPW - Cmwlth Court - May 24, 2006

Petitioners filed an original action in Commonwealth Court challenging and seeking pre-enforcement review of new personal care home regulations.

DPW's argument that Petitioner failed to exhaust administrative remedies was rejected. Citing Arsenal Coal Co. v. DER, 477 A.2d 1333 (Pa. 1984), the court held that equitable relief is available where there is not "an adequate statutory remedy."

Factors discussed in Arsenal Coal include -- whether the effect of submitting to the regs will be direct and immediate, the resulting hardship, the burden of submitting to the regulations (cost and inefficiency), the availability of pre-enforcement review in the regulations themselves.

employment - Title VII - ministerial exception - First Amendment

Petruska v. Gannon University - Third Circuit - May 24, 2006

"The ministerial exception...exempts religious organizations from employment discrimination suits brought by ministers." It "was created to protect church autonomy and avoid entangling government in religious affairs."

The court adopted "a carefully tailored version of the ministerial exception. Where otherwise illegal discrimination is based on religious belief, religious doctrine, or the internal regulations of a church, the First Amendment exempts religious institutions from Title VII....But where a church discriminates for reasons unrelated to religion, we hold that the Constitution does not foreclose Title VII suits. Employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion that the Constitution protects. Furthermore, in adjudicating suits that do not involve religious rationales for employment action, courts need not consider questions of religious belief, religious doctrine, or internal church regulations, a process that would violate the Establishment Clause by entangling courts in religious affairs."

contempt - talking to witness during break in examination

Yoskowitz v. Yazdanfar - Superior Court - May 24, 2006

The appellate court reversed a finding of criminal contempt under 42 Pa. C.S. 4132(3) resulting from an attorney having talked to a witness during a break in the witness's testimony.

The trial court relied on Hall v. Clifton Precision, 150 FRD 525, 528 (ED Pa. 1993), given the lack of state court precedent (rules, cases, etc) on the issue. The trial court noted an "appearance of impropriety" that rendered the witness's testimony "suspect."

The Superior Court said that there was not "sufficient evidence to prove beyond a reasonable doubt that [thej attorney] intended to significantly disrupt the...trial proceedings" and that the "court was in recess when the conversation occurred." The court reversed the finding of contempt "[b]ecause the record fails to reflect the requisite proof beyond a reasonable doubt...."

Note: Despite this decision, I think it's a very bad idea to talk to a witness during a break in the witness's examination. It may not be criminal contempt, but I think it is still improper. It raises serious ethical and other issues.

Pennsylvania Bulletin of May 27, 2006

Here's the link to the Pennsylvania Bulletin of May 27, 2006

Of possible interest:
- governor - veto - SB 997 - discussion of "pay as you go" budget

- recent statutes

- Human Relations Commission - public hearing opinions

- IRRC - notiice of filing of final rules

- potatoes - referendum on potato research program - it continues! - 85.4% v. 14.6%